Rule 1 TITLE AND CONSTRUCTION

Section 1. Title of the Rules.— These rules shall be known and cited as the Rules of Court.
Sec. 2. Construction.—These rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding.

Part I CIVIL ACTIONS

Rule 2 ACTIONS IN GENERAL

Section 1. Action defined.— Action means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong.

Sec. 2. Special proceeding distinguished.— Every other remedy, including one to establish the status or right of a party or a particular fact, shall be by special proceeding.

Sec. 3. One suit for a single cause of action.— A party may not institute more than one suit for a single cause of action.

Sec. 4. Effect of splitting a single cause of action.—If two or more complaints are brought for different parts of a single cause of action, the filing of the first may be pleaded in abatement of the other or others, in accordance with section 1(e) of Rule 16, and a judgment upon the merits in any one is available as a bar in the others.

Sec. 5. Joinder of causes of action.— Subject to rules regarding jurisdiction, venue and joinder of parties, a party may in one pleading state, in the alternative or otherwise, as many causes of action as he may have against an opposing party (a) if the said causes of action arise out of the same contract, transaction or relation between the parties, or (b) if the causes of action are for demands for money, or are of the same nature and character. In the cases falling under clause (a) of the preceding paragraph, the action shall be filed in the inferior court unless any of the causes joined falls within the jurisdiction of the Court of First Instance, in which case it shall be filed in the latter court. In the cases falling under clause (b) the jurisdiction shall be determined by the aggregate amount of the demands, if for money, or by their nature and character, if otherwise.

Sec. 6. Commencement of action.— A civil action is commenced by filing a complaint with the court.

Rule 3 PARTIES TO CIVIL ACTIONS

Section 1. Who may be parties.— Only natural or juridical persons or entities authorized by law may be parties in a civil action.

Sec. 2. Parties in interest.— Every action must be prosecuted and defended in the name of the real party in interest. All persons having an interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. All persons who claim an interest in the controversy or the subject thereof adverse to the plaintiff, or who are necessary to a complete determination or settlement of the questions involved therein shall be joined as defendants.

Sec. 3. Representative parties.— A trustee of an express trust, a guardian, executor or administrator, or a party authorized by statute, may sue or be sued without joining the party for whose benefit the action is presented or defended; but the court may, at any stage of the proceedings, order such beneficiary to be made a party. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

Sec. 4. Married woman.— A married woman may not sue or be sued alone without joining her husband, except in the following instances: (a) When they are judicially separated; (b) If they have in fact been separated for at least one year; (c) When there is a separation of property agreed upon in the marriage settlements; (d) If the administration of all the property in the marriage has been transferred to her, in accordance with articles 196 and 197 of the Civil Code; (e) When the litigation is between the husband and the wife; (f) If the suit concerns her paraphernal property; (g) When the action is upon the civil liability arising from a criminal offense; (h) If the litigation is incidental to the profession, occupation or business in which she is engaged; (i) In any civil action referred to in articles 25 to 35 of the Civil Code; and (j) In an action upon a quasi delict. In the cases mentioned in paragraphs (g) to (j), the husband must be joined as a party defendant if the third paragraph of article 163 of the Civil Code is applicable.

Sec. 5. Infants, or incompetent persons.— A minor not emancipated, or an insane person, or one declared judicially to be incompetent, may sue or be sued in the cases provided by law, through his father, mother, guardian, or if he has none, through a guardian ad litem appointed by the court. A minor emancipated by marriage or voluntary concession can sue and be sued in court only with the assistance of his father, mother, guardian, or guardian ad litem.

Sec. 6. Permissive joinder of parties.— All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.

Sec. 7. Compulsory joinder of indispensable parties.— Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

Sec. 8. Joinder of proper parties. — When persons who are not indispensable but who ought to be parties if complete relief is to be accorded as between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue, the court shall order them summoned to appear in the action. But the court may, in its discretion, proceed in the action without making such persons parties, and the judgment rendered therein shall be without prejudice to the rights of such persons.

Sec. 9. Non-joinder of proper parties to be pleaded.— In any pleading in which relief is asked, the pleader shall set forth the names, if known to him, of persons who ought to be parties if complete relief is to be accorded between those already parties, but who are not joined, and shall state why they are omitted.

Sec. 10. Unwilling co-plaintiff.— If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.

Sec. 11. Misjoinder and non-joinder of parties.— Mis-joinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

Sec. 12. Class suit.— When the subject matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. But in such case the court shall make sure that the parties actually before it are sufficiently numerous and representative so that all interests concerned are fully protected. Any party in interest shall have a right to intervene in protection of his individual interest.

Sec. 13. Alternative defendants.— Where the plaintiff is uncertain against which of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other.

Sec. 14. Unknown identity or name of defendant.— Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly.

Sec. 15. Associations as defendants.— When two or more sons, associated in any business, transact such busies under a common name, whether it comprises names of such persons or not, the associates may be sued by such common name. Persons associated in business who are sued under a common name must all be named individually in the answer filed by them or on their behalf with their business address.

Sec. 16. Duty of attorney upon death, incapacity, or incompetency of party.— Whenever a party to a pending case dies, becomes incapacitated or incompetent, it shall be the duty of his attorney to inform the court promptly of such death, incapacity or incompetency, and to give the name and residence of his executor, administrator, guardian or other legal representative.

Sec. 17. Death of party.— After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.

Sec. 18. Death or separation of a party who is a government officer.— When an officer of the Philippines is a party in an action and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor, if within thirty (30) days after the successor takes office it is satisfactorily shown to the court that there is a substantial need for so continuing and maintaining it. Substitution pursuant to this rule may be made when it is shown by supplemental pleading that the successor of an officer adopts or continues or threatens to adopt or continue the action of his predecessor in enforcing a law averred to be in violation of the Constitution of the Philippines. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to object.

Sec. 19. Incompetency or incapacity.— If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against his representative.

Sec. 20. Transfer of interest.— In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.

Sec. 21. Where claim does not survive.— When the action is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided in these rules.

Sec. 22. Pauper litigant.— Any court may authorize a litigant to prosecute his action or defense as a pauper upon a proper showing that he has no means to that effect by affidavits, certificate of the corresponding provincial, city or municipal treasurer, or otherwise. Such authority once given shall include an exemption from payment of legal fees and from filing appeal bond, printed record and printed brief. The legal fees shall be a lien to any judgment rendered in the case favorably to the pauper, unless the court otherwise provides.

Sec. 23. Notice to Solicitor General.— In any action involving the validity of any treaty, law, ordinance or executive order, rules or regulations, a superior court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him.

Rule 4 VENUE OF ACTIONS

Section 1. Venue in inferior courts.— (a) Real actions.— Forcible entry and detainer actions regarding real property shall be brought in the municipality or city in which the subject matter thereof is situated. If the property be found in two or more municipalities or cities, actions may be brought in any of them, at the option of the plaintiff. (b) Personal actions.— All other civil actions in inferior courts shall be brought:

1. In the place specified by the parties by means of a written agreement, whenever the court shall have jurisdiction to try the action by reason of its nature or the amount involved;
2. If there is no such agreement, in the place of the execution of the contract sued upon as appears therefrom;
3. When the place of execution of the written contract sued upon does not appear therein, or the action is not upon a written contract, then in the municipality where the defendant or any of the defendants resides or may be served with summons.

Sec. 2. Venue in Courts of First Instance.— (a) Real actions.—Actions affecting title to, or for recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on, real property, shall be commenced and tried in the province where the property or any part thereof lies. (b) Personal actions.— All other actions may be commenced and tried where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff. (c) Actions against nonresidents.—If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of the defendant located in the Philippines, the action may be commenced and tried in the province where the plaintiff resides or the property, or any portion thereof, is situated or found.

Sec. 3. Venue by agreement.— By written agreement of the parties the venue of an action may be changed or transferred from one province to another.

Sec. 4. Waiver of objection.— When improper venue is not objected to in a motion to dismiss it is deemed waived.

Sec. 5. When rule not applicable.— This rule shall not apply in those cases where a specific rule or law provides otherwise.

Rule 5 PROCEDURE IN INFERIOR COURTS

Section 1. Meaning of words.— The words “inferior courts” include both “justice of the peace courts” and “municipal courts.”

Sec. 2. The complaint.— The complaint shall state the name and residence of the plaintiff and those of the defendant, the substance of the claim made, the grounds of action, the relief sought, and the date when the claim arose.

Sec. 3. Date of filing of complaint.— Upon the filing of a complaint in an inferior court, the judge or clerk if any, shall indorse thereon the day, month, and year upon which it was filed, and forthwith issue the corresponding summons to the defendants.

Sec. 4. Summons.— The provisions of Rule 14 hereof shall, so far as applicable, regulate summons issued by inferior courts; but the direction contained in the summons must be that the defendant answer the complaint, and Produce his evidence at a stated place, day, and hour, which shall be not less than two (2) days nor more than five (5) days after the service of the summons it be served in the municipality or city in which the action is brought, nor less than ten (10) days nor more than twenty (20) days after such service if summons be served out of the municipality or city. The plaintiff must be notified of the date, time and place set for the trial.

Sec. 5. Answer.— Except in summary procedure under section 17 of this rule, the defendant shall answer the complaint in writing, by either denying specifically the material allegations of the complaint, or alleging any lawful defense. All affirmative defenses not pleaded in the answer shall be deemed waived and the same may not be raised for the first time on appeal in the Court of First Instance. A defendant may also interpose a counterclaim in writing for an amount within the court’s jurisdiction. A counterclaim beyond the court’s jurisdiction may only be pleaded by way of defense. The defendant may also file a cross-claim or a third-party complaint in accordance with sections 7 and 12 of Rule 6.

Sec. 6. Motion to dismiss or for judgment on the pleadings.— A motion to dismiss may be filed on any of the grounds provided for in Rule 16 and immediately upon its denial the movant shall give his answer. A motion for judgment on the pleadings may also be filed on the grounds specified in Rule 19.

Sec. 7. Order of trial.— On the trial, the court shall hear first the testimony of the plaintiff and his witnesses, next the testimony of the defendant and his witnesses, and finally the plaintiff may offer rebutting testimony. When the testimony has been closed, the plaintiff or his representative shall be heard in argument, if he so desires, and upon the conclusion of his argument, the defendant or his representative may conclude the argument.

Sec. 8. Adjournment.— Inferior courts may adjourn the hearing of an action from day to day as the interest of justice requires, but shall not have power to adjourn hearings for a longer period than five (5) days for each adjournment, nor for more than fifteen (15) days in all.

Sec. 9. Offer to compromise.— If the defendant, at any time before the trial, offers in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued; but if he does not accept such offer before the trial, and fails to recover in the action a sum in excess of the offer, he cannot recover costs, but costs must be adjudged against him, and, if he recovers, be deducted from his recovery. The offer and failure to accept it cannot affect the recovery otherwise than as to costs.

Sec. 10. Judgment after trial, when and how rendered.— At the conclusion of the trial, the justice of the peace or municipal judge shall render judgment for the plaintiff or for the defendant as the law and evidence may warrant. If there is a counterclaim, the justice of the peace or municipal judge shall render judgment for the sum found in arrears from either party, with costs. But he may adjourn the disposition of the case to a stated day, not exceeding one week from the time of the conclusion of the trial, for the consideration of the judgment, if he requires time for consideration.

Sec. 11. Dismissal upon plaintiff’s failure to appear.— If the plaintiff does not appear at the time and place designated in the summons or in a subsequent order, the justice of the peace or municipal judge may dismiss the action for failure to prosecute, and render judgment for the defendant to recover his costs. But such dismissal without hearing shall not be a bar to a subsequent action for the same cause.

Sec. 12. Judgment by default.—Except as provided in section 17 of this rule, if the defendant does not file a written answer within the time designated in the summons, he may be declared in default, and the court shall thereupon proceed to hear the testimony of the plaintiff and his witnesses, and shall render judgment for the plaintiff in accordance with the facts alleged and proved.

Sec. 13. Vacating dismissals and defaults.— Within one (1) day after notice of an order of dismissal or default, as provided in the last two preceding sections, the court shall set aside such entry and allow the party against whom such dismissal or default had been entered to have a trial upon the merits of the cause, if such party appears and satisfies the court that his failure to appear at the time and place designated in the summons was by reason of fraud, accident, mistake or excusable negligence.

Sec. 14. Form of judgment.— The judgment shall be in writing and signed by the justice of the peace or municipal judge, but it need not contain findings of fact or conclusions of law.

Sec. 15. Notice to parties.— Except in the case covered by section 9 of Rule 13, inferior courts shall notify the parties in writing of their judgment and of any and all orders issued by them, personally or by registered mail. If notice is orally given in open court, the giving of the notice must be noted down in the docket.

Sec. 16. New trial.— Within the time provided for perfecting an appeal from a judgment rendered by an inferior court and before an appeal is so perfected, the court may grant a new trial to correct an error or injustice it may have committed.

Sec. 17. Summary procedure for money claim, not exceeding two hundred pesos.— Where a claim does not exceed two hundred pesos (P200), no written or formal pleading need be filed, but the judge shall note the claim, and in such form as he may deem best and convenient under the circumstances shall summon the parties and hear them as well as their witnesses. If the defendant fails to appear at the first informal call, a formal summons with an information as to the claim against him may be issued. If he fails to appear after formal summons, defendant shall be declared in default. After the hearing, both parties shall be informed of the judgment, which shall be noted in the corresponding docket together with the claim, defense and all the proceedings had thereon. No fee shall be charged or costs allowed in such proceedings, whether the parties be paupers or not. Appeal shall be made by filing a notice to that effect with the clerk. Upon appeal, written pleadings shall be filed in the Court of First Instance as in cases originally instituted therein. The complaint shall be filed within a period of ten (10) days from receipt of the notice specified in section 7 of Rule 40.

SEC. 18. Execution.— Execution shall issue upon a final judgment of an inferior court after the time for perfecting an appeal has expired and no appeal has been perfected.

Sec. 19. Application of certain rules.—

Sections 6, 7, 8, 9, 10 and 12 of Rule 6; sections 3 and 4 of Rule 9; sections 4 and 5 of Rule 11; section 2 of Rule 12; section 9 of Rule 13; Rules 16, 17, 23, 24, 37, 61, and 129 to 135 are applicable in inferior courts in cases falling within their respective jurisdictions in so far as they are not inconsistent with the provisions of this rule.

PROCEDURE IN COURTS OF FIRST INSTANCE

Rule 6 PLEADINGS IN GENERAL

Section 1. Pleadings defined.— Pleadings are the written allegations of the parties of their respective claims and defenses submitted to the court for trial and judgment.

Sec. 2. Pleadings allowed.— The pleadings allowed by these rules are the complaint, the answer, the counterclaim, the cross-claim, the reply, the third-party complaint, he fourth-party complaint, and other similar complaints.

Sec. 3. Complaint.— The complaint is a concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action. It shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. The names and residences of the parties plaintiff and defendant must be stated in the complaint.

Sec. 4. Answer.— An answer is a pleading in which a defendant or other adverse party sets forth the negative and affirmative defenses upon which he relies.

Sec. 5. Defenses.— (a) Negative defense is the specific denial of the material fact or facts alleged in the complaint essential to the plaintiff’s cause or causes of action. (b) An affirmative defense is an allegation of new matter which, while admitting the material allegations of the complaint, expressly or impliedly, would nevertheless prevent or bar recovery by the plaintiff. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and all other matter by way of confession and avoidance.

Sec. 6. Counterclaim.— A counterclaim is any claim for money or other relief which a defending party may have against an opposing party. A counterclaim need not diminish or defeat the recovery sought by the opposing party, but may claim relief exceeding in amount or different in kind from that sought by the opposing party’s claim.

Sec. 7. Cross-claim. — A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

Sec. 8. Counterclaim or cross-claim in the answer. — The answer may contain any counterclaim or cross-claim which a party may have at the time against the opposing party or a co-defendant, provided that the court has jurisdiction to entertain the claim and can, if the presence of third parties is essential for its adjudication, acquire jurisdiction of such parties.

Sec. 9. Counter claim or cross-claim arising after answer.— A counterclaim or a cross-claim which either matured or was acquired by a party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment.

Sec. 10. Answer to counterclaim or cross-claim required.— A counterclaim or cross-claim must be answered, and failure to do so will constitute a default under Rule 18. The party filing such answer may plead therein a counterclaim or cross-claim.

Sec. 11. Reply.— A reply is a pleading, the office or function of which is to deny, or allege facts in denial or 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 party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint.

Sec. 12. Third-party complaint.— A third-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim.

Sec. 13. Fourth, etc., parties.— A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant.

Sec. 14. Bringing new parties.— When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.

Sec. 15. Liberal construction.— All pleadings shall be liberally construed so as to do substantial justice.

 

Rule 7 FORMAL REQUIREMENTS OF PLEADINGS

Section 1. Caption.— Each pleading shall contain a caption setting forth the name of the court, the title of the action, the file number if assigned and a designation of the pleading.

Sec. 2. Title.— In the complaint the title of the action shall include the names of all the parties; but in other pleadings it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties.

Sec. 3. Paragraphs.— Every pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by a number in all succeeding pleadings.

Sec. 4. Headings.— When two or more causes of action are joined, the statement of the first shall be prefaced by the words “first cause of action,” of the second by “second cause of action,” and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint they shall be prefaced by the words “answer to the first cause of action” or “answer to the second cause of action” and so on; and when one or more paragraphs of the answer are addressed to several causes of action they shall be prefaced by words to that effect.

Sec. 5. Signature and address.— Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney constitutes a certificate by him that 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 interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken out as sham and false and the action may proceed as though the pleading had not been served. For a willful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.

Sec. 6. Verification.—A pleading is verified only by an affidavit stating that the person verifying has read the pleading and that the allegations thereof are true of his own knowledge. Verifications based on “information and belief,” or upon “knowledge, information and belief” shall be deemed insufficient.

Rule 8 ALLEGATIONS IN PLEADINGS

Section 1. In general. —Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading- relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.

Sec. 2. Alternative causes of action or defenses. — A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient of the insufficiency of one or more of the alternative statements.

Sec. 3. Conditions precedent.— In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient.

Sec. 4. Capacity.— Facts showing the capacity of a Party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

Sec. 5. Fraud, mistake, condition of the mind.— In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of mind of a person may be averred generally.

Sec. 6. Judgment.— In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

Sec. 7. Action or defense based on document.— Whenever an action or defense is based upon a written instrument or document, the substance 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 an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.

Sec. 8. How to contest genuineness of such documents.— When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but this provision does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused.

Sec. 9. Official document or act.— In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

Sec. 10. Specific denial.— The defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters which he will rely upon to support his denial. Where a pleader desires to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall; deny only the remainder. Where the defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial.

Rule 9 EFFECT OF PLEADINGS

Section 1. Allegations not specifically denied deemed admitted.— Material averment in the complaint, other than those as to the amount of damage, shall be deemed admitted when not specifically denied. Allegations of usury are deemed admitted if not denied specifically and under oath.

Sec. 2. Defenses and objections not pleaded deemed waived.— Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived; except the failure to state a cause of action which may be alleged in a later pleading, if one is permitted, or by motion for judgment on the pleadings, or at the trial on the merits; but in the last instance, the motion shall be disposed of as provided in section 5 of Rule 10 in the light of any evidence which may have been received. Whenever it appears that the court has no jurisdiction over the subject-matter, it shall dismiss the action.

Sec. 3. Omission of counterclaim or cross-claim. — When pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment.

Sec. 4. Counterclaim or cross-claim not set up barred.— A counterclaim or cross-claim not set up shall be barred if it arises out of or is necessarily connected with, the transaction or occurrence that is the subject-matter of the opposing party’s or co-party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

Sec. 5. Striking out of pleading or matter contained therein.— Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court’s own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom.

Rule 10 AMENDED AND SUPPLEMENTAL PLEADINGS

Section 1. Amendments in general.— Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.

Sec. 2. When amendments allowed as a matter of right.— A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within ten (10) days after it is served.

Sec. 3. Amendments by leave of court.— After the case is set for hearing, substantial amendments may be made only upon leave of court. But such leave may foe refused if it appears to the court that the motion was made with intent to delay the action or that the cause of action or defense is substantially altered. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.

Sec. 4. Formal amendments.—A defect in the designation of the parties may be summarily corrected at any stage of the action provided no prejudice is caused thereby to the adverse party.

Sec. 5. Amendment to conform to or authorize presentation of evidence.— When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting Party to meet such evidence.

Sec. 6. Matters subject of supplemental pleadings. — Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrence or events which have happened since the date of the pleading sought ,to be supplemented. If the court deems it advisable that the adverse party should plead thereto, it shall so order, specifying the time therefor.

Sec. 7. Filing of amended pleadings.— When any pleading is amended, a new copy of the pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed with the clerk of the court.

Rule 11 PERIODS FOR PLEADING

Section 1. Time to answer.— Within fifteen (15) days after service of summons the defendant shall file his answer and serve a copy thereof upon the plaintiff, unless a different period is fixed by the court.

Sec. 2. Time to answer when defendant is foreign corporation.— Where the defendant is a foreign corporation and service of summons is made on the government official designated by law to that effect, the defendant may answer within thirty (30) days after receipt of summons.

Sec. 3. Answer to amended complaint.— If the complaint is amended, the time fixed for the filing and service of the answer shall, unless otherwise ordered, run from notice of the order admitting the amended complaint or from service of such amended complaint. An answer filed before the amendment shall stand as an answer to the amended complaint, unless a new answer is filed within ten (10) days from notice or service as herein provided.

Sec. 4. Answer to counterclaim or cross-claim.—A counterclaim or cross-claim must be answered within ten (10) days from service.

Sec. 5. Answer to third-party complaint.— The third-party defendant shall file his answer as provided in this rule, alleging his defenses and his counterclaims and cross-claims against the plaintiff, the third-party plaintiff or any other party as provided in Rule 6, and he may assert such defenses as the third-party plaintiff may have against the plaintiff’s claim.

Sec. 6. Reply.—A reply may be filed within ten (10) days from service of the pleading responded to.

Sec. 7. Extension of time to plead.— Upon motion and on such terms as may be just the court may extend the time to plead provided in these rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these rules.

Rule 12 BILL OF PARTICULARS; INTERVENTION

Section 1. Motion for bill of particulars.— Before responding to a pleading or, if no responsive pleading is permitted by these rules, within ten (10) days after service of the pleading upon him, a party may move for a more definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. Such motion shall point out the defects complained of and the details desired. (a) Bill a part of pleading.— A bill of particulars becomes a part of the pleading which it supplements. It shall be governed by the rules of pleading and the original shall be filed with the clerk of the court. (b) Stay of period to file responsive pleading.— After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party shall have the same time to serve his responsive pleading, if any is permitted by these rules, as that to which he was entitled at the time of serving his motion, but not less than five (5) days in any event. (c) Refusal.— If an order of the court to make a pleading more definite and certain or for a bill of particulars is not obeyed within ten (10) days after notice of the order or within such other time as the court may fix, the court may order the striking out of the pleading to h the motion was directed or make such other order as it deems just. It may, upon motion, set aside the order, or modify it in the interest of justice.

SEC. 2. Intervention.—A person may, before or during a trial, be permitted by the court, in its discretion, to intervene an action, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. (a) Motion for intervention.— A person desiring to intervene shall file a motion for leave of court with notice upon all the parties to the action. (b) Discretion of court.—In allowing or disallowing a motion for intervention, the court, in the exercise of discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate proceeding. (c) Complaint or answer in intervention.— The intervention shall be made by complaint filed and served in regular form, and may be answered as if it were an original complaint; but where intervenor unites with the defendant in resisting the claims of the plaintiff, the intervention may be made in the form of an answer to the complaint. (d) Time.— Unless a different period is fixed by the court, the complaint or answer in intervention shall be filed within ten (10) days from notice of the order permitting such intervention.

Rule 13 SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

Section 1. Filing with the court, defined.— The filing of pleadings, appearances, motions, notices, orders and other papers with the court as required by these rules shall be made by filing them personally with the clerk of the court or by sending them by registered mail. In the first case, the clerk shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall foe considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case.

Sec. 2. Papers to be filed and served.— Every order required by its terms to be served, every pleading subsequent to the complaint, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected thereby. If any of such parties has appeared by an attorney or attorneys, service upon him shall be made upon his attorneys or one of them, unless service upon the party himself is ordered by the court. Where one attorney appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

Sec. 3. Modes of service.— Service of pleadings, motions, notices, orders, judgment and other papers shall be made either personally or by mail.

Sec. 4. Personal service.— Service of the papers may be made by delivering personally a copy to the party or his attorney, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party’s or attorney’s residence, if known, with a person of sufficient discretion to receive the same.

Sec. 5. Service by registered or ordinary mail.— If service is not made personally, service by registered mail shall be required if registry service exists in the locality; otherwise, service may be made by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or his attorney at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return mail to the sender after ten (10) days if undelivered.

Sec. 6. Substituted service.— If service cannot be made under the two preceding sections, the office and place of residence of the party or his attorney being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.

SEC. 7. Service of final orders or judgments.— Final orders or judgments shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, final orders or judgments against him shall be served upon him also by publication at the expense of the prevailing party.

Sec. 8. Completeness of service.— Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of five (5) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time.

Sec. 9. Service upon party in default.— No service of papers other than substantially amended or supplemental pleadings and final orders or judgments shall be necessary on a party in default unless he files a motion to set aside the order of default, in which event he shall be entitled to notice of all further proceedings regardless of whether the order of default is set aside or not.

Sec. 10. Proof of service.— Proof of personal service shall consist of a written admission of the party served, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 5 of this rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon receipt thereof by the sender, or in lieu thereof the letter unclaimed together with the certified or sworn copy of the notice given by the postmaster to the addressee.

Rule 14 SUMMONS

SECTION 1. Clerk to issue, summons.— Upon the filing of the complaint, the clerk of court shall forthwith issue the corresponding summons to the defendants.

SEC. 2. Defendants residing in different provinces. — If the defendants reside in different provinces, one summons shall issue for all the defendants residing in one province and another for all the defendants residing in another province, and in the same way until summons have been issued for all the defendants.

SEC. 3. Contents.— The summons shall be directed to the defendant, signed by the clerk of the court under its seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and demand from the court the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons.

Sec. 4. Issuance of other summons.— If a summons is returned without being served on any or all of the defendants, or if it has been lost, the clerk, on demand of the plaintiff, may issue other summons as the case may require, in the same form as the original.

Sec. 5. By whom summons may be served.— The summons may be served by the sheriff or other proper court officer of the province in which service is to be made, or for special reasons by any person especially authorized the judge of the court issuing the summons.

Sec. 6. Return.— When the service has been completed, server shall give notice thereof, by registered mail, to the plaintiff or his counsel, and shall return the summons to the clerk who issued it, accompanied with the proof of service.

Sec. 7. Personal service of summons.— The summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him.

Sec. 8. Substituted service.— If the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.

Sec. 9. Service upon associations.— When persons associated in business are sued under a common name service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in the common name. But such service shall not bind individually any person whose connection with the association has, upon due notice, been severed before the action was brought.

Sec. 10. Service upon minors.— When the defendant is a minor, service shall be made on him personally and also on his guardian or person exercising parental authority over him; but the court may order that service made on a minor of fifteen (15) or more years of age shall be sufficient.

Sec. 11. Service upon insane or incompetent.— When the defendant is insane or judicially declared incompetent, service shall be effected on him personally and on his guardian or person exercising parental authority over him.

SEC. 12. Service upon prisoners.— When a prisoner confined in a jail or institution is a defendant, service may be effected upon him by serving on the officer having the management of such jail or institution.

Sec. 13. Service upon private domestic corporation or partnership.— If the defendant is a corporation organized under the laws of the Philippines or a partnership duly registered, service may be made on the president, manager, secretary, cashier, agent, or any of its directors.

Sec. 14. Service upon private foreign corporations. — If the defendant is a foreign corporation, or a nonresident joint stock company or association, doing business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines.

Sec. 15. Service upon public corporation.— When the defendant is the Republic of the Philippines service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.

Sec. 16. Service upon an unknown defendant.— Whenever the defendant is designated as an unknown owner, or the like, or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.

Sec. 17. Extraterritorial service.— When the defendant does not reside and is not found in the Philippines and the action affects the personal 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 or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by Personal service as under section 7; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

Sec. 18. Residents temporarily out of the Philippines.— When an action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be effected out of the Philippines, as under the preceding section.

Sec. 19. Leave of court.— Any application to the court under this rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application.

Sec. 20. Proof of service.— The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. Sec.

21. Proof of service by publication.— If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.

Sec. 22. Proof of service by registered mail.— Service by registered mail under this rule may be proved by a certificate of the sheriff or affidavit of the person especially authorized by the court, showing that a copy of the summons and papers attached thereto, inclosed in an envelope and addressed to the defendant, with postage prepaid, has been mailed, to which certificate or affidavit the registry receipt and return card shall be attached.

Sec. 23. What is equivalent to service.— The defendant’s voluntary appearance in the action shall be equivalent to service.

Sec. 24. Notice of lis pendens.— In an action affecting the title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may record in the office of the registrar of deeds of the province in which the property is situated a notice of the pendency of the action, containing the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. From the time only of filing such notice for record shall a purchaser, or incumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against parties designated by their real names. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose or molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded.

Rule 15 MOTIONS IN GENERAL

Section 1. Motion defined.— Every application for an order not included in a judgment, may be called a motion.

Sec. 2. Motion must be in writing.— All motions shall e made in writing except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial.

Sec. 3. Contents.— A motion shall state the order sough to be obtained and the grounds upon which it is based, and if necessary shall be accompanied by supporting affidavits and other papers.

Sec. 4. Notice.— Notice of a motion shall be served by the applicant to all parties concerned, at least three (3) days before the hearing thereof, together with a copy of the motion, and of any affidavits and other papers accompanying it. The court, however, for good cause may hear a motion on shorter notice, specially on matters which the court may dispose of on its own motion.

Sec. 5. Contents of notice.— The notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion.

Sec. 6. Proof of service, to be filed with motion. — No motion shall be acted upon by the court, without proof of service of the notice thereof, except when the court is satisfied that the rights of the adverse party or parties are not affected.

Sec. 7. Motion day.— The first hours of the morning session of the court every Saturday each week shall be devoted to hearing motions, unless, for special reasons, the court shall fix another day therefor.

Sec. 8. Omnibus motion.— A motion attacking a pleading or a proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

Sec. 9. Form.— The rules applicable to pleadings shall apply to all motions so far as concerns caption, signing and other matters of form.

Rule 16 MOTION TO DISMISS

Section 1. Grounds.— Within the time for pleading a motion to dismiss the action may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defendant or over the subject of the action or suit; (b) That the court has no jurisdiction over the nature of the action or suit; (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 same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by statute of limitations; (g) That the complaint states no cause of action; (h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action or suit is founded is unenforceable under the provisions of the statute of frauds; (j) That the suit is between members of the same family and no earnest efforts towards a compromise have been made.

Sec. 2. Who may file motion.— A motion to dismiss may be filed by an original defendant, by a third-party defendant, by plaintiff in a counterclaim or by a co-party in a cross-claim.

Sec. 3. Hearing and order.— After hearing the court may deny or grant the motion or allow amendment of pleading, or may defer the hearing and determination of the motion until the trial if the ground alleged therein does not appear to be indubitable.

Sec. 4. Time to plead.— If the motion to dismiss is denied or if determination thereof is deferred, the movant shall file his answer within the period prescribed by Rule 11, computed from the time he received notice of the denial or deferment, unless the court provides a different period.

Sec. 5. Pleading grounds as affirmative defenses. —Any of the grounds for dismissal provided for in this rule, except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as if a motion to dismiss had been filed.

Rule 17 DISMISSAL OF ACTIONS

Section 1. Dismissal by the plaintiff.— An action may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. 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 plaintiff who has once dismissed in a competent court an action based on or including the same claim. A class suit shall not be dismissed or compromised without the approval of the court.

Sec. 2. Dismissal by order of the court.— Except as provided in the preceding section, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice.

Sec. 3. Failure to prosecute.— If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court’s own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court.

Sec. 4. Dismissal of counterclaim, cross-claim, or third-party claim.— The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone by notice pursuant to section 1 of this rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing.

Rule 18 DEFAULTS

Section 1. Judgment by default.— If the defendant fails to answer within the time specified in these rules, the court shall, upon motion of the plaintiff and proof of such failure, declare the defendant in default. Thereupon the court shall proceed to receive the plaintiff’s evidence and render judgment granting him such relief as the complaint and the facts proven may warrant. This provision applies where no answer is made to a counterclaim, cross-claim, or third-party complaint within the period provided in this rule.

Sec. 2. Effect of order of default.— Except as provided in section 9 of Rule 13, a party declared in default shall not be entitled to notice of subsequent proceedings, nor to take part in the trial.

Sec. 3. Relief from order of defaults.— A party declared in default may at any time after discovery thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable neglect and that he has a meritorious defense. In such case the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.

Sec. 4. Judgment when some defendants answer, and others make default.— When a complaint states a common cause of action against several defendants, some of whom answer, and the others fail to do so, the court shall try e case against all upon the answers thus filed and render Judgment upon the evidence presented. The same procedure applies when a common cause of action is pleaded in a counterclaim, cross-claim and third-party claim.

Sec. 5. Extent of relief to be awarded.— A judgment entered against a party in default shall not exceed the amount or be different in kind from that prayed for. Sec. 6. No defaults in actions for annulments of marriage or for legal separation.— If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney 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 it that the evidence submitted is not fabricated.

Rule 19 JUDGMENT ON THE PLEADINGS
Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading. But in actions for annulment of marriage or for legal separation the material facts alleged in the complaint shall always be proved.

Rule 20 PRE-TRIALSECTION 1. Pre-trial mandatory.— In any action, after the last pleading has been filed, the court shall direct the parties and their attorneys to appear before it for a conference to consider: (a) The possibility of an amicable settlement or of a submission to arbitration; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; (g) Such other matters as may aid in the prompt disposition of the action.

Sec. 2. Failure to appear at pre-trial conference. — A party who fails to appear at a pre-trial conference may be non-suited or considered as in default.

Sec. 3. Judgment on the pleadings and summary judgment at pre-trial.— If at the pre-trial the court finds that facts exist upon which a judgment on the pleadings or a summary judgment may be made, it may render judgment on the pleadings or a summary judgment as justice may require.

Sec. 4. Record of pre-trial results.— After the pre-trial the court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered. Such order shall limit the issues for trial to those not disposed of by admissions or agreements of counsel and when entered controls the subsequent course of the action, unless modified before trial to prevent manifest injustice.

Sec. 5. Pre-trial calendar.— The court shall cause to be prepared a pre-trial calendar of cases for consideration as above provided. Upon the submission of the last pleading in a particular case, it shall be the duty of the clerk of court to place such case in the pre-trial calendar.

Rule 21 SUSPENSION OF ACTIONS

Section 1. Grounds for suspension.— Any party to an action may, at any time before the date set for pre-trial, file a petition with the court for the suspension of the proceedings with a view of securing a possible compromise if (1) it appears that any one or both of the parties have expressed at any time willingness to discuss a possible compromise, or (2) it is alleged under oath that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party had refused the offer.

Sec. 2. When action shall not be suspended.— No suspension shall be granted for the purpose of discussing compromise upon any of the following questions: (a) The civil status of persons; (b) The validity of a marriage or a legal separation; (c) Any ground for legal separation; (d) Future support; (e) The jurisdiction of courts; (f)Future legitime; (g) Habeas corpus and election cases.

Sec. 3. Proceeding upon suspension.— Upon the filing of such petition the case shall be placed in the pre-trial calendar. At the pre-trial proceedings the court shall endeavor to persuade the litigants to agree upon some fair compromise, or appoint arbitrators to help in the settlement of the case. If the importance or difficulty of the matter justifies it, the court may refer the controversy to a board of arbitrators appointed as provided in Republic Act No. 876.

Sec. 4. Period of suspension.— No suspension for a period longer than sixty (60) days from notice of the order of suspension shall be allowed except upon justifiable grounds. If no compromise is arrived at within the period provided, the case shall continue as if no suspension of the proceedings had taken place.

Rule 22 CALENDAR AND ADJOURNMENTS

Section 1. Trial calendar.— The clerk of court shall have a trial calendar for the cases that have passed pre-trial stage. Preferential cases including habeas corpus, election cases, special civil actions, and those so declared by law, shall be given precedence.

Sec 2. Notice of trial.— Upon entry of a case in the trial calendar the clerk shall cause a notice of the date of its trial to be served upon the parties.

SEC 3. Adjournments and postponements.— A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment, nor more than three months in all, except when authorized in writing by the Chief Justice of the Supreme Court. Sec 4. Requisites of motion to postpone trial for absence of evidence.—A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality of evidence expected to be obtained, and that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right to object to their admissibility, the trial must not be postponed.

Sec. 5. Requisites of motion to postpone trial for illness of party or counsel.—A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit that the presence of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable.

Sec. 6. Annual conference on pending cases.—At the end of one year from the day the trial proper has commenced, and every year thereafter, if the trial has not been terminated, the judge shall call the parties and their counsel to a conference to devise ways and means of terminating the trial. A statement of the result of the conference, signed by the judge and counsel, shall be attached to the record, showing the reason why the trial has not terminated; number and names of witnesses yet to be presented by the parties; any facts stipulated during the conference; the efforts exerted to settle the case and similar matters. Copy of the statement shall be furnished the Supreme Court and the Secretary of Justice within ten (10) days after such conference.

Sec. 7. Assignment of cases.— In the assignment of cases to the different branches of a Court of First Instance, or their transfer from one branch to another whether by raffle or otherwise, the parties or their counsel shall be given written notice sufficiently in advance so that they may be present therein if they so desire.

Rule 23 SUBPOENA

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

Sec. 2. By whom issued.— The subpoena shall be issued by the court or judge before whom the witness is required to attend, or by the judge of the Court of First Instance of the province or any judge of the municipality or city where the deposition is to be taken or the investigation is to be conducted, or by any Justice of the Supreme Court or Court of Appeals in any case pending within the Philippines. If a prisoner, not confined in a municipal jail, is required to attend before an inferior court, the judge of the Court of First Instance of the province where the inferior court is sitting, or any Justice of the Court of Appeals or of the Supreme Court may issue the subpoena.

Sec. 3. Form and contents.— A subpoena shall be signed by the clerk, or by the judge if his court has no clerk, under the seal of the court. It shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and if a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant.

Sec 4. Quashing a subpoena duces tecum.— The court upon motion made promptly and in any event at or before the time specified in the subpoena duces tecum for compliance therewith, may quash the subpoena if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.

Sec 5. Subpoena for depositions.— Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 24, constitutes a sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the Court of First Instance for the province, or by the judge of the municipality or city, 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.

Sec. 6. Service.— Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person specially authorized who is not a party and is not less than eighteen (18) years of age. The original shall be exhibited and a copy thereof delivered to the person named therein, tendering to him the fees for one day’s attendance and the kilometrage allowed by these rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must e made so as to allow the witness a reasonable time for Reparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall be tendered.

SEC. 7. Service when witness is concealed. – If it is shown by affidavit that a witness is concealed in a building or vessel so as to prevent the service upon him of a subpoena and that his testimony or the things demanded from him are material, the court or judge issuing the subpoena may issue an order authorizing the sheriff or his deputy or the person specially authorized to serve it, to break into the building or vessel where the witness is concealed for the purpose of effecting the service.

Sec. 8. Service of subpoena upon a prisoner.— If the witness required to attend is a prisoner, the subpoena shall be served upon the officer having the management of the jail, who in turn shall serve it upon the prisoner.

Sec. 9. Witness not bound by subpoena.— A witness is not bound to attend as such before any court, judge, or other officer out of the province in which he resides, unless the distance be less than fifty (50) kilometers from his place of residence to the place of trial by the usual course of travel. A prisoner cannot be removed from the province where he is serving sentence, except upon special order of the court issuing the subpoena. In case of a detention prisoner, the permission of the court in which his case is pending shall also be obtained.

Sec. 10. Personal presence in court.—A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer.

Sec. 11. Compelling attendance.— In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the costs of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse.

Sec. 12. Contempt.— Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued.

Rule 24 DEPOSITIONS AND DISCOVERY

Section 1. Depositions pending action, when may be taken.— By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 23. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

Sec. 2. Scope of examination.— Unless otherwise ordered by the court as provided by section 16 or 18 of this rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject 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 knowledge of relevant facts. Sec. 3. Examination and cross-examination. — Examination and cross-examination of deponents may proceed as permitted at the trial under Rule 132, sections 3 to 10, 12, 13 and 19.

Sec. 4. Use of depositions.— At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition who had due notice thereof, in accordance with any one of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be 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 the witness is dead; or (2) that the witness is out of the province and at a greater distance than fifty (50) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

Sec. 5. Effect of substitution of parties. — Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

Sec. 6. Objections to admissibility.— Subject to the provisions of section 29 of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

Sec. 7. Effect of taking depositions.— A party shall not be deemed to make a person his own witness for any purpose by taking his deposition.

Sec. 8. Effect of using depositions.— The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of section 4 of this rule.

Sec. 9. Rebutting deposition.— At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. Sec. 10. Persons before whom depositions may be taken within the Philippines.— Within the Philippines, depositions shall be taken before any judge, justice of the peace or notary public.

Sec. 11. Persons before whom depositions may be taken in foreign countries.— In a foreign state or country, depositions shall be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines, or (b) before such person or officer as may be appointed by commission or under letters rogatory.

Sec. 12. Commission or 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 directions as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed “To the Appropriate Judicial Authority in (here name the country).”

Sec. 13. Disqualification by interest.— No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or attorney of any of the parties; or who is a relative within the same degree, or employee of such attorney; or who is financially interested in the action.

Sec. 14. Stipulations regarding taking of deposition. — If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, upon any notice, and in any manner, and when so taken may be used like other depositions.

Sec. 15. Deposition upon oral examinations; notice; time and place.— A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking 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 to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice in served, the court may for cause shown enlarge or shorten the time.

Sec. 16. Orders for the protection of parties and deponents.— After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

Sec. 17. Record of examination; oath; objections. — The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim.

Sec. 18. Motion to terminate or limit examination. — At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Court of First Instance of the province where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in section 16 of this rule. If the order made terminates the examination, it shall be resumed thereafter 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 deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable.

Sec. 19. Submission to witness; changes; signing. — When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under section 29(f) of this rule, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

Sec. 20. Certification and filing by officer.— The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked “Deposition of (here insert name of witness)” and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing.

Sec. 21. Notice of filing.— The officer taking the deposition shall give prompt notice of its filing to all the parties.

Sec. 22. Furnishing copies.— Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

Sec. 23. Failure to attend of party giving notice. — If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney’s fees.

Sec. 24. Failure of party giving notice to serve subpoena.— If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney 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 amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney’s fees.

Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories.— A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within ten (10) days thereafter a party so served may serve cross-interrogatories upon the party proposing to take the deposition. Within five (5) days thereafter the latter may serve re-direct interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories upon the party proposing to take the deposition.

Sec. 26. Officers to take responses and prepare record.— A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition the officer designated in the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him.

Sec. 27. Notice of filing and furnishing copies. — When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor.

Sec. 28. Orders for the protection of the parties and deponents. — After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, upon notice and good cause shown, may make any order specified in sections 15, 16 and 18 of this rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination.

Sec. 29. Effect of errors and irregularities in depositions.— (a) As to notice.— All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (b) As to disqualification of officer.— Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (c) As to competency or relevancy of evidence.— Objections to the competency of a witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which 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 of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable 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 25 and 26 of this rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized. (f) As to manner of preparation.— Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 15 to 26 of this rule are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Rule 25 INTERROGATORIES TO PARTIES
Section 1. Interrogatories to parties; service thereof. — Under the same conditions specified in section 1 of Rule 24, any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.Sec. 2. Answer to interrogatories.— The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time.Sec. 3. Objections to interrogatories.— Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable.Sec. 4. Number of interrogatories.— No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.

Sec. 5. Scope and use of interrogatories.— Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 24, and the answers may be used for the same purposes provided in section 4 of the same rule.

Rule 26 ADMISSION BY ADVERSE PARTY
Section 1. Request for admission.— At any time after issues have been joined, a party may serve upon any other party a written request for the admission by the latter of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished.Sec. 2. Implied admission.— Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than ten (10) days after service thereof, or within such further time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Objections on the ground of irrelevancy or impropriety of the matter requested shall be promptly submitted to the court for resolution.SEC. 3. Effect of admission.— Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding,SEC. 4. Withdrawal.— The court may allow the party making an admission under this rule, whether express or implied, to withdraw or amend it upon such terms as may be just.

RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Section 1. Motion for production or inspection; order.— Upon motion of any party showing good cause therefor and upon notice to all other parties, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just.

Rule 28 PHYSICAL AND MENTAL EXAMINATIONS OF PERSON

Section 1. When examination may be ordered.— In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to physical or mental examination by a physician.

Sec. 2. Order for examination.— The order for examination may be made only on motion for good cause shown and upon notice to the 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 persons by whom it is to be made.

Sec. 3. Report of findings.— If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery the party causing the examination to be made shall be entitled upon request 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 and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial.

Sec. 4. Waiver of privilege.— By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination.

Rule 29 REFUSAL TO MAKE DISCOVERY

SECTION 1. Refusal to answer.— If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on reasonable notice to all persons affected thereby, he may apply to the court of the province where the deposition is taken for an order compelling an answer. Upon the refusal of a witness to answer any interrogatory submitted under sections 25 and 26 of Rule 24 or upon the refusal of a party to answer any interrogatory submitted under Rule 25, the proponent of the question may on like notice make like application for such an order. If the motion is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal was without substantial justification, it may further require the refusing party or deponent or the attorney advising the refusal, or both of them, to pay to the examining party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees. If the motion is denied and if the court finds that the motion was made without substantial justification, it shall require the examining party or the attorney advising the motion or both of them to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the motion, including reasonable attorney’s fees.

Sec. 2. Contempt of court.— If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the province in which the deposition is being taken, the refusal may be considered a contempt of that court.

Sec. 3. Other consequences.— If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this rule requiring him to answer designated questions, or an order 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 upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part there of, or rendering a judgment by default against the disobedient party; (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination.

Sec. 4. Expenses on refusal to admit.— If a party after being served with a request under Rule 26 to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney’s fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, the order shall be made.

Sec. 5. Failure of party to attend or serve answers.— If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25, after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney’s fees.

Sec. 6. Expenses against the Republic of the Philippines. — Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this rule.

Rule 30 TRIAL

Section 1. Order of trial.—Subject to the provisions of section 2 of Rule 31, and unless the judge, for special reasons, otherwise directs, the order of trial shall be as follows: (a) The plaintiff must produce the evidence on his part; (b) The defendant shall then offer evidence in support of his defense, counterclaim, cross-claim and third-party claim; (c) The third-party defendant, if any, shall introduce evidence of his defense, counterclaim, cross-claim and third-party claim; (d) The fourth, etc., party, if any, shall introduce evidence of the material facts by him pleaded; (e) The parties against whom any counterclaim or cross-claim has been pleaded, shall introduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively offer rebutting evidence only, unless the court, for good reasons, in the furtherance of justice, permits them to offer evidence upon their original case; (g) When the evidence is concluded, unless the parties agree to submit the case without argument, the plaintiff or his counsel may make the opening argument, the defendant, the third-party defendant, and fourth, etc., party, or their respective counsel, may follow successively, and the plaintiff or his counsel may conclude the argument Two counsel may, if desired, be heard upon each side, but in the order herein prescribed; (h) If several defendants or third-party defendants having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument, but in any event the plaintiff is entitled to the opening and closing argument.

Sec. 2. Agreed statement of facts.— The parties to any action may agree, in writing, upon the facts involved in the litigation, and require the judgment of the court upon the facts agreed upon, without the introduction of evidence. If the parties can agree only on some of the facts in issue, the trial shall be held as to the others.

Sec. 3. Statements of judge.— During the hearing or trial of a case any statement made by the judge with reference to the case, or to any of the parties thereto, witnesses or attorneys, shall be made of record in the stenographic notes.

Rule 31 CONSOILIDATION OR SEVERANCE

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

Sec. 2. Separate trials.—The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims or issues.

Rule 32 TRIAL WITH ASSESSORS

Section 1. Preparing list of assessors.— The judge, with the assistance of the governor of the province or the mayor of the chartered city where the court sits, and the provincial or city fiscal, shall prepare a list of the residents of the province best fitted by education, natural ability, and reputation for probity, to sit as assessors in the trial of actions. Such list shall contain not less than ten and not more than twenty-five names, and shall be retained in the office of the clerk. The name of any person may be stricken from the list, at any time, upon the order of the judge, upon his becoming satisfied that the name ought to be stricken out by reason of the death, permanent disability, or unfitness of the person named, and in case names are so stricken out, other names shall be added in their place, to be selected as provided in this section.

Sec. 2. Rights of parties to have assessors, and manner of selecting them.— Either party to an action may, twenty (20) days or more before the trial, apply in writing to the judge for assessors to sit in the trial. Upon the filing of such application, the judge shall direct that assessors shall be provided, and that the parties forthwith appear before him for the selection of the assessors. If the parties cannot agree on the choice of two assessors from the list provided for in the preceding section, the assessors shall be selected from the aforesaid list in the following manner, in the presence of the judge or clerk: the plaintiff shall strike out from the list one name; then the defendant may strike out another, and so on, alternately, the parties shall strike out names, until but two remain on the list. The remaining two shall be the assessors to sit in the trial; but if one or both of them are disqualified by law to sit as assessors, then the judge or clerk shall draw one name or more, as the case may be, by lot, from those stricken out, and the person or persons thus drawn shall act as assessors, unless disqualified by law, in which case the vacancy shall be filled by lot, as above provided.

Sec. 3. Summoning assessors.— The persons so selected as assessors shall, under the seal of the court, be summoned to attend and serve as assessors in the action, and the summons for that purpose shall be served in the same manner as other writs or summonses.

Sec. 4. Failure of assessors to attend.— If any person, summoned to act as assessor, fails, without lawful excuse, to attend at the trial, or at any adjournment thereof, or to continue to serve throughout the trial, he shall be liable as for contempt of court.

Sec. 5. Excusing assessors.— The court may, on reasonable cause shown, excuse from attendance generally, or in any particular case, any person summoned, or liable to be summoned, as assessor, and may, for like cause, discharge from attendance, in any particular case, any person who is acting as assessor thereon.

SEC. 6. Compensation of assessors.— Each assessor shall receive a compensation of ten pesos (P10) per day for the actual time by him employed in the trial of the action and in advising the judge as to the decision thereof, to be advanced out of the provincial or city funds but to be taxed as costs against the defeated party and then refunded to the province or city concerned.

Sec. 7. Oath of assessors.— Before entering upon the performance of his duty, in any action, each assessor shall be sworn by the judge, or by the clerk of the court, to the faithful and honest performance of his duties as such assessor.

Sec. 8. Duties of assessors.— The duties of assessors, when their aid is invoked as herein provided, shall be to sit with the judge during the trial of an action and to advise him in the determination of all questions of fact involved therein; but the final responsibility for the decision must rest with the judge.

Sec. 9. Effect of dissent of assessors.— If one or both assessors shall be of the opinion that the findings of fact in the judgment in the action are wrong, he or they shall certify, in writing, his or their dissent therefrom and their reasons for such dissent and sign such certification, which shall be filed with the other papers in the action. In case such dissent is filed, the appellate court, on appeal, shall give to the dissent aforesaid such weight as in its opinion it is entitled to, and render such judgment as it finds just.

Rule 33 TRIAL BY COMMISSIONER

Section 1. Reference by consent.— By written consent of both parties, filed with the clerk, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these rules the word “commissioner” includes a referee, an auditor and an examiner.

Sec. 2. Reference ordered on motion.— When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue, or any specific question involved therein; (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a or of carrying a judgment or order into effect.

Sec. 3. Order of reference, powers of the commissioner. — When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of reference he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as though the same had been had before the court.

Sec. 4. Oath of commissioner.— Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof.

Sec. 5. Proceedings before commissioner.— Upon receipt of the order of reference unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within ten (10) days after the date of the order of reference and shall notify the parties or their attorneys.

SEC. 6. Failure of parties to appear before commissioner.— If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or his attorney of the adjournment.

Sec. 7. Refusal of witness.— The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence before him, shall be deemed a contempt of the court who appointed the commissioner.

Sec. 8. Commissioner shall avoid delays.— It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court for an order requiring the commissioner to speed up the proceedings and to make his report.

Sec. 9. Report of commissioner.— Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto in all cases, all exhibits, affidavits, depositions, papers and the transcript, if any, of the evidence presented before him.

Sec. 10. Notice to parties of the 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 of objection to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner.

Sec. 11. Hearing upon report.— Upon the expiration of the period of ten (10) days referred to in the preceding section, the report shall be set for hearing, after which the court shall render judgment by adopting, modifying, or rejecting the report in whole or in part or it may receive further evidence or may recommit it with instructions.

Sec. 12. Stipulations as to findings.— When the parties stipulate that a commissioner’s findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.

Sec. 13. Compensation of commissioner.— The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice squires.

RULE 34 SUMMARY JUDGMENTS

SECTION 1. Summary judgment for claimant.— A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits for a summary judgment in his favor upon all or any part thereof.

Sec. 2. Summary judgment for defending party.— A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits for a summary judgment in his favor as to all or any part thereof.

SEC. 3. Motion and proceedings thereon.— The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file together with the affidavits, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Sec. 4. Case not fully adjudicated on motion.— If on motion under this rule, judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

SEC. 5. Form of affidavits and supporting papers. — Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

SEC. 6. Affidavits in bad faith. — Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.

Rule 35 JUDGMENT ON DEMURRER TO EVIDENCE

Section 1. Effect of judgment on demurrer to evidence.—After the plaintiff has completed the presentation of his evidence, the defendant without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no light to relief. However, if the motion is granted and the order of dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf.

Rule 36 JUDGMENTS ORDERS AND ENTRY THEREOF

Section 1. Rendition of judgments.— All judgments determining the merits of cases shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court.

Sec. 2. Entry of judgments and orders.— If no appeal or motion for new trial is filed within the time provided in these rules, the judgment or order shall be entered by the clerk. The recording of the judgment or order in the book of entries of judgments shall constitute its entry. The record shall contain the dispositive part of the judgment or order and shall be signed by the clerk, with a certificate that such judgment or order has become final and executory.

Sec. 3. Judgment for or against one or more of several parties.— Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. When justice so demands, the court may require the parties on each side to file adversary pleadings as between themselves and determine their ultimate rights and obligations.

Sec. 4. Several judgments.— In an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others.

Sec. 5. Judgment at various stages.— When more than one claim for relief is presented in an action, the court at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject mater of the claim, may enter a judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is so entered, the court by order may stay its enforcement until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

Sec. 6. Judgment against association.—When judgment is entered against two or more persons sued as an association, the judgment shall set out their individual or proper names, if known.

Rule 37 NEW TRIAL

SECTION 1. Grounds of and period for filing motion for new trial.— Within the period for perfecting appeal, the aggrieved party may move the trial court to set aside the judgment and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result; (c) Award of excessive damages, or insufficiency of the evidence to justify the decision, or that the decision is against the law.

Sec. 2. Contents of motion for new trial and notice thereof.— The motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the movant on the adverse party. When the motion is made for the causes mentioned in subdivisions (a) and (b) of the preceding section, it shall be proved in the manner provided for proof of motions. Affidavit or affidavits of merits shall also be attached to a motion for the cause mentioned in subdivision (a) which may be rebutted by counter-affidavits. When the motion is made upon the cause mentioned in subdivision (c) of the preceding section, it shall point out specifically the findings or conclusions of the judgment which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions.

Sec. 3. Action upon motion for new trial.—The trial court may set aside the judgment and grant a new trial, upon such terms as may be just, or may deny the motion. If the motion is made upon the cause mentioned in subsection (c), section 1 of this rule, and the court finds its judgment to be contrary to evidence or law, it may amend such judgment accordingly without granting a new trial, unless the court deems the introduction of additional evidence advisable.

Sec. 4. Second motion for new trial.—A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial, based on a ground not existing- nor available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending.

Sec. 5. Effect of granting of motion for new trial.— If a new trial be granted in accordance with the provisions of this rule, the original judgment shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same.

Sec. 6. Partial new trials.— If the grounds for a motion under this rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial as to such issues if severable without interfering with the judgment upon the rest.

SEC. 7. Effect of order for partial new trial.— When less than all of the issues are ordered retried, the court may either enter a final judgment as to the rest, or stay the entry of final judgment until after the new trial.

Rule 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

Section 1. Petition to Court of First Instance for relief from judgment of inferior court.— When a judgment is rendered by an inferior court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been unjustly deprived of a hearing therein, or has been prevented from taking an appeal, he may file a petition in the Court of First Instance of the province in which the original judgment was rendered, praying that such judgment be set aside and the case tried upon its merits.

SEC. 2. Petition to Court of First Instance for relief from judgment or other proceeding thereof.— When a judgment or order is entered, or any other proceeding is taken, against a party in a Court of First Instance through fraud, accident, mistake, or excusable negligence, he may tile a petition in such court and in the same cause praying that the judgment, order or proceeding be set aside.

Sec. 3. Time for filing petition; contents and verification. — A petition provided for in either of the preceding sections of this rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, order, or other proceeding to be set aside, and not more than six (6) months after such judgment or order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be.

Sec. 4. Order to file an answer.— If the petition is sufficient in form and substance to justify relief, the court in which it is filed, or a judge thereof, shall issue an order requiring those against whom the petition is filed to answer the same within fifteen (15) days from the receipt thereof, which order shall be served in such manner as the court may direct, together with copies of the petition.

Sec. 5. Preliminary injunction pending proceedings. — The court in which the petition is filed, or a judge thereof, grant such preliminary injunction as may be necessary for the preservation of the rights of the parties pending the proceeding, upon the filing by the petitioner of a bond the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner.

Sec. 6. Proceedings after answer is filed.— Once the answer is filed, or the time for its filing has expired, the court shall hear the petition and if after such hearing, the court finds that the allegations thereof are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall order the judgment, order or other proceeding complained of to be set aside, upon such terms as may be just, and thereafter the case shah stand as if the judgment, order or other proceeding set aside had never been issued or taken.

Sec. 7. Procedure where a judgment is set aside. — Where the judgment set aside is that of a Court of First Instance, such court shall proceed to hear and determine the case as if timely motion for a new trial had been granted therein. Where the judgment set aside is that of an inferior court, the case shall be tried in the Court of First Instance as if the same had been regularly brought up by appeal, and the judge of the inferior court may be required by the Court of First Instance to attend and produce at the trial all the papers in the original case.

Rule 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Section 1. Execution upon final judgments or orders.—Execution shall issue only upon a judgment or order that finally disposes of the action or proceeding. Such execution shall issue as a matter of right upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. If the judgment has been duly appealed, execution may issue as a matter of right from the date of the service of the notice provided in section 11 of Rule 51.

Sec. 2. Execution pending appeal.— On motion of the prevailing party with notice to the adverse party the court may, in its discretion, order execution to issue even before the expiration of the time to appeal, upon good reasons to be stated in a special order. If a record on appeal is filed thereafter, the motion and the special order shall be included therein.

Sec. 3. Stay of execution.— Execution issued before the expiration of the time to appeal may be stayed upon the approval by the court of a sufficient supersedeas bond filed by the appellant, conditioned upon the performance of the judgment or order appealed from in case it be affirmed wholly or in part. The bond thus given may be proceeded against on motion before the trial court, with notice to the surety, after the case is remanded to it by the appellate court.

Sec. 4. Injunction, receivership and accounting, not stayed.— Unless otherwise ordered by the court, a judgment in an action for injunction or in a receivership action, or a judgment or order directing an accounting in an action, shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal. The trial court, however, in its discretion, when an appeal is taken from a judgment granting, dissolving or denying an injunction, may make an order suspending, modifying, restoring, or granting such injunction during the pendency of the appeal, upon such terms as to bond or otherwise as it may consider proper for the security of the rights of the adverse party.

Sec. 5. Effect of reversal of executed judgment.— Where the judgment executed is reversed totally or partially on appeal, the trial court, on motion, after the case is remanded to it, may issue such orders of restitution as equity and justice may warrant under the circumstances.

Sec. 6. Execution by motion or by independent action.— A judgment may be executed on motion within five (5) years from the date of its entry or from the date it becomes final and executory. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action.

Sec. 7. Execution in case of death of party. — Where a party dies after the entry of the judgment or order, execution thereon may issue, or one already issued may be enforced in the following cases: (a) In case of the death of the judgment creditor, upon the application of his executor or administrator, or successor in interest; (b) In case of the death of the judgment debtor, against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon; (c) n case of the death of the judgment debtor after execution is actually levied upon any of his property, the same may be sold for the satisfaction thereof, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands.

Sec. 8. Issuance, form and contents of a writ of execution.— The writ of execution must issue in the name of the Republic of the Philippines from the court in which the judgment or order is entered; must intelligently refer to such judgment or order, stating the court, province, and municipality where it is of record, and the amount actually due thereon if it be for money; and must require the sheriff or other proper officer to whom it is directed substantially as follows: (a) If the execution be against the property of the judgment debtor, to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of his real property; (b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees, to satisfy the judgment, with interest, out of such property; (c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; {d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property.

Sec. 9. Writ of execution of special judgment.— When a judgment requires the performance of any other act than the payment of money, or the sale or delivery of real or personal property, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment.

Sec. 10. Judgment for specific acts; vesting title. — If a judgment directs a party to execute a conveyance of land, or to deliver deeds or other documents, or to perform any other specific act, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is within the Philippines, the court in lieu of directing a conveyance thereof may enter judgment divesting the title of any party and vesting it in others and such judgment shall have the force an effect of a conveyance executed in due form of law.

Sec.11. Return of writ of execution.— The writ of exertion may be made returnable, to the clerk or judge the court issuing it, at any time not less than ten (10) nor more than sixty (60) days after its receipt by the officer who must set forth in writing on its back the whole of his proceedings by virtue thereof, and file it with the clerk or judge to be preserved with the other papers in the case. A certified copy of the record, in the execution book kept by the clerk, of an execution by virtue of which real property has been sold, or of the officer’s return thereon, shall be evidence of the contents of the originals whenever they, or any part thereof, have been lost or destroyed.

Sec. 12. Property exempt from execution.— Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (a) The debtor’s family home constituted in accordance with the Civil Code, or in the absence thereof, the homestead in which he resides, and land necessarily used in connection therewith, both not exceeding in value three thousand pesos; (b) Tools and implements necessarily used by him in his trade or employment; (c) Two horses, or two cows, or two carabaos, or other beasts of burden, such as the debtor may select, not exceeding one thousand pesos in value, and necessarily used by him in his ordinary occupation; (d) His necessary clothing, and that of all his family; (e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the debtor, such as the debtor may select, of a value not exceeding one thousand pesos; (f) Provisions for individual or family use sufficient for three months; (g) The professional libraries of attorneys, judges, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three thousand pesos in value; (h) One fishing boat and net, not exceeding the total value of one thousand pesos, the property of any fisherman, by the lawful use of which he earns a livelihood; (i) So much of the earnings of the debtor for his personal services within the month preceding the levy as are necessary for the support of his family; (j) Lettered gravestones; (k) All moneys, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance, if the annual premiums paid do not exceed five hundred pesos, and if they exceed that sum a like exemption shall exist which shall bear the same proportion to the moneys, benefits, privileges, and annuities so accruing or growing out of such insurance that said five hundred pesos bears to the whole premiums paid; (l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; (m) Copyrights and other properties especially exempted by law. But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

Sec. 13. How execution for the delivery or restitution of property enforced.— The officer must enforce an execution for the delivery or restitution of property by ousting therefrom the person against whom the judgment is rendered and placing the judgment creditor in possession of such property, and by levying as hereinafter provided upon so much of the property of the judgment debtor as will satisfy the amount of the judgment and costs included in the writ of execution.

Sec. 14. Removal of improvements on property subject of execution.— When the property subject of the execution contains improvements constructed or planted by the Judgment debtor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon petition of the judgment creditor after due hearing and after the former has failed j remove the same within a reasonable time fixed by the court.

Sec. 15. Execution of money judgments.— The officer must enforce an execution of a money judgment by levying on all the property, real and personal of every name and nature whatsoever, and which may be disposed of for value, of the judgment debtor not exempt from execution, or on a sufficient amount of such property, if there be sufficient, and selling the same, and paying to the judgment creditor, or his attorney, so much of the proceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and accruing costs must be delivered to the judgment debtor, unless otherwise directed by the judgment or order of the court. When there is more property of the judgment debtor than is sufficient to satisfy the judgment and accruing costs, within the view of the officer, he must levy only on such part of the property as is amply sufficient to satisfy the judgment and costs. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied on in like manner and with like effect as under a writ of attachment.

Sec. 16. Effect of levy on execution as to third persons.— The levy on execution shall create a lien in favor of the judgment creditor over the right, title and interest of the judgment debtor in such property at the time of the levy, subject to liens or incumbrances then existing.

Sec. 17. Proceedings where property claimed by third person.—If property levied on be claimed by any other person than the judgment debtor or his agent, and such person make an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serve the same upon the officer making the levy, and a copy thereof upon the judgment creditor, the officer shall not be bound to keep the property, unless such judgment creditor or his agent, on demand of the officer, indemnify the officer against such claim by a bond in a sum not greater than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. The officer is not liable for damages, for the taking or keeping of the property, to any third-party claimant unless a claim is made by the latter and unless an action for damages is brought by him against the officer within one hundred twenty (120) days from the date of the filing of the bond. But nothing herein contained shall prevent such claimant or any third person from vindicating; his claim to the property by any proper action. When the party in whose favor the writ of execution runs, is the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose.

Sec. 18. Notice of sale of property on execution.— Before the sale of property on execution, notice thereof must be given as follows: (a) In case of perishable property, by posting written notice of the time and place of the sale in three public places in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property; (b) In case of other personal property, by posting a similar notice in three public places in the municipality or city where the sale is to take place, for not less than five (5) nor more than ten (10) days; (c) In case of real property, by posting a similar notice particularly describing the property for twenty (20) days in three public places in the municipality or city where the property is situated, and also where the property is to be sold, and, if the assessed value of the property exceeds four hundred pesos (P400), by publishing a copy of the notice once a week, for the same period, in some newspaper published or having general circulation in the province, if there be one. If there are newspapers published in the Province in both the English and Spanish Ianguages, then a like publication for a like period shall be made in one newspaper published in the English language, and in one published in the Spanish language.

Sec. 19. Penalty for selling without notice, or removing or defacing notice.— An officer selling without the notice prescribed by the last preceding section shall forfeit five hundred pesos (P500) to any party injured thereby, in addition to his actual damages, both to be recovered in a single proper action; and a person willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale, shall forfeit five hundred pesos (P500) to any person injured by reason thereof, to be recovered in any proper action.

Sec. 20. No sale if judgment and costs paid.— At any time before the sale of property on execution the judgment debtor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein.

Sec. 21. How property sold on execution. Who may direct manner and order of sale.— All sales of property under execution must be made at public auction, to the highest bidder, between the hours of nine in the morning and five in the afternoon. After sufficient property has been sold to satisfy the execution, no more shall be sold. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the sale and in such parcels as are likely to bring the highest price. The judgment debtor, if present at the sale, may direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the officer holding the execution, nor his deputy, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale.

SEC. 22. Refusal of purchaser to pay.— If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby; but the court may order the refusing purchaser to pay into court the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the judgment debtor. When a purchaser refuses to pay, the officer may thereafter reject any subsequent bid of such person.

Sec. 23. Judgment creditor as purchaser.— When the purchaser is the judgment creditor, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess.

Sec. 24. Adjournment of sale.— By written consent of debtor and creditor, the officer may adjourn any sale upon execution to any date agreed upon in writing by the parties. Without such agreement he may ad-journ the sale from day to day, if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice.

Sec. 25. Conveyance to purchaser of personal property capable of manual delivery.— When the purchaser of any personal property, capable of manual delivery, pays the purchase money, the officer making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied.

Sec. 26. Conveyance to purchaser of personal property not capable of manual delivery.— When the purchaser of any personal property, not capable of manual delivery, pays purchase money, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day that the execution or attachment was levied.

Sec. 27. Conveyance of real property. Certificate thereof given to purchaser and filed with registrar.—Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: (a) A particular description of the real property sold; (b) The price paid for each distinct lot or parcel; (c) The whole price by him paid; (d) The date when the right of redemption expires. A duplicate of such certificate must be filed by the officer in the office of the registrar of deeds of the province where the property is situated.

Sec. 28. Certificate of sale where property claimed by third person.— When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff pursuant to sections 25, 26 and 27 of this rule, shall make express mention of the existence of such third-party claim.

Sec. 29. Who may redeem real property so sold.— Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons: (a) The judgment debtor, or his successor in interest in the whole or any part of the property; (b) A creditor having a lien by attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the judgment under which the property was sold. Such redeeming creditor is termed a redemptioner.

Sec. 30. Time and manner of, and amounts payable on, successive redemptions. Notice to be given and fled. — The judgment debtor, or redemptioner, may redeem the property from the purchaser, at any time within twelve (12) months after the sale, on paying the purchaser the amount of his purchase, with one per centum per month interest thereon in addition, up to the time of redemption, together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last-named amount at the same rate; and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the sum paid on the last redemption, with two per centum, thereon in addition, and the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last-named amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, on paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the amounts of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest-Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registrar of deeds of the province, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registrar of deeds; if such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens.

Sec. 31. Effect of redemption by judgment debtor, and a certificate to be delivered and recorded thereupon. To whom payments on redemption made.— If the judgment debtor redeem, he must make the same payments as are required to effect a redemption by a redemptioner, whereupon the effect of the sale is terminated and he is restored I his estate, and the person to whom the payment is made must execute and deliver to him a certificate of redemption acknowledged or approved before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the office of the registrar of deeds of the province in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale.

Sec. 32. Proof required of redemptioner.— A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer: (a) A copy of the judgment or order under which he claims the right to redeem, certified by the clerk or judge of the court wherein the judgment is docketed; or, if he redeem upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; (b) A copy of any assignment necessary to establish his claim, verified by the affidavit of himself, or of a subscribing witness thereto; (c) An affidavit by himself or his agent, showing the amount then actually due on the lien.

Sec. 33. Manner of using premises pending redemption. Waste restrained.— Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment creditor, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon; or reasonably to use wood or timber on the property therefor, or for fuel for his family, while he occupies the property.

SEC. 34 Rents and profits pending redemption. Statement thereof and credit therefor on redemption.—The purchaser, from the time of the sale until a redemption, and a redemptioner, from the time of his redemption until another redemption, is entitled to receive the rents of the property sold or the value of the use and occupation thereof when such property is in the possession of a tenant. But when any such rents and profits have been received by the judgment creditor or purchaser, or by a redemptioner, or by the assignee of either of them, from property thus sold preceding such redemption, the amounts of such rents and profits shall be a credit upon the redemption money to be paid; and, if a later redemptioner or the judgment debtor, before the expiration of the time allowed for such redemption demands in writing of such creditor, purchaser, or prior redemptioner, or his assigns, a written and verified statement of the amounts of the rents and profits thus received, the period of redemption is extended five (5) days after such demand is complied with and such sworn statement given to such later redemptioner or debtor. If such statement is not so given within one (1) month from and after such demand, such redemptioner or debtor may bring an action to compel an accounting and disclosure of such rents and profits, and until fifteen (15) days from and after the final determination of such action, the right of redemption is extended to such redemptioner or debtor.

Sec. 35. Deed and possession to be given at expiration of redemption period. By whom executed or given. — If no redemption be made within twelve (12) months after the sale, the purchaser, or his assignee, is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner, or his assignee, is entitled to the conveyance and possession; but in all cases the judgment debtor shall have the entire period of twelve (12) months from the date of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. Upon the execution and delivery of said deed the purchaser, or redemptioner, or his assignee, shall be substituted to and acquire all the right, title, interest and claim of the judgment debtor to the property as of the time of the levy, except as against the judgment debtor in possession, in which case the substitution shall be effective as of the date of the deed. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment debtor.

SEC. 36. Recovery of price if sale not effective; revival of judgment.— If the purchaser of real property sold on execution, or his successor in interest fails to recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or because the judgment has been reversed or set aside, or because the property sold was exempt from execution, or because a third person has vindicated his claim to the property he may in a proper action recover from the judgment creditor the price paid, with interest, or so much thereof as has not been delivered to the judgment debtor; or he may, on motion after notice, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment debtor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more.

Sec. 37. Right to contribution or reimbursement. — When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel a contribution from the others; and when a judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal.

Sec. 38. Examination of judgment debtor when execution returned unsatisfied.— When an execution issued in accordance with law against property of a judgment debtor, or any one of several debtors in the same judgment, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, shall be entitled to an order from the judge of the Court of First Instance of the province in which the judgment was rendered or of the province from which the execution was returned, requiring such judgment debtor to appear and answer concerning his property and income before such judge of the Court of First Instance, or before a commissioner appointed by him, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment debtor toward the satisfaction of the judgment. But no judgment debtor shall be so required to appear before a judge of first instance or commissioner outside the province in which such debtor resides or is found.

Sec. 39. Examination of debtor of judgment debtor.— After an execution against the property of a judgment debtor has been returned unsatisfied in whole or in part, and upon proof, by affidavit of a party or otherwise, to the satisfaction of the judge, that a person, corporation, or other legal entity has property of such judgment debtor, or is indebted to him, the judge may, by an order, require such person, corporation, or other legal entity, or any officer or member thereof, to appear before the judge, or a commissioner appointed by him, at a time and place within the province in which the order is served, to answer concerning the same. The service of the order shall bind all credits due the judgment debtor and all money and Property of the judgment debtor in the possession or in the control of such person, corporation, or legal entity from the time of service; and the judge may also require notice of such proceedings to be given to any party to the action in such manner as he may deem proper.

Sec. 40. Enforcement of attendance and conduct of examination.—A party or other person may be compelled, by an order or subpoena, to attend before the judge or commissioner to testify as provided in the two preceding sections, and upon failure to obey such order or subpoena or to be sworn to, or to answer as a witness, or to subscribe his deposition, may be punished for contempt as in other cases. Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time, until they are completed. If the examination is before a commissioner, he must take it in writing and certify it to the judge. All examinations and answers before a judge or commissioner must be on oath, and when a corporation or other legal entity answers it must be on the oath of an officer or agent thereof.

SEC. 41. Debtor may pay execution against creditor. — After an execution against property has issued, a person indebted to the judgment debtor may pay to the officer holding the execution the amount of his debt or so much thereof as may be necessary to satisfy the execution, and the officer’s receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the judgment creditor on the execution.

Sec. 42. Order for application of property and income to satisfaction of judgment.— The judge may order any property of the judgment debtor, or money due him, not exempt from execution, in the hands of either himself or other person, or of a corporation or other legal entity, to be applied to the satisfaction of the judgment, subject to any prior rights over such property and if, upon investigation of his current income and expense, it appears that the earnings of the judgment debtor for his personal services are more than is necessary for the support of his family, the judge may order that he pay the judgment in fixed monthly installments, and upon his failure to pay any such installment when due without good excuse may punish him for contempt.

SEC. 43. Appointment and bond of receiver.— The judge may, by order, appoint the sheriff, or other proper officer or person, receiver of the property of the judgment debtor; and he may also, by order, forbid a transfer or other disposition of, or any interference with, the property of the judgment debtor not exempt from execution. If a bonded officer be appointed receiver, he and his sureties shall be liable on his official bond as such receiver, but if another person be appointed he shall give a bond as receiver as in other cases.

Sec. 44. Sale of ascertainable interest of judgment debtor in, real estate.— If it appears that the judgment debtor has an interest in real estate, in the province in which proceedings are had, as mortgagor or mortgagee or otherwise, and his interest therein can be ascertained without controversy, the receiver may be ordered to sell and convey such real estate or the interest of the debtor therein; and such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate upon execution, and the proceedings thereon shall be approved by the court before the execution of the deed.

Sec. 45. Proceedings when indebtedness denied or another person claims the property.— If it appears that a person or corporation, alleged to have property of the judgment debtor or to be indebted to him claims an interest in the property adverse to him or denies the debt, the court or judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such interest or debt until an action can be commenced and prosecuted to judgment, and may punish disobedience of such order as for contempt. Such order may be modified or vacated by the judge granting the same, or by the court in which the action is brought, at any time, upon such terms as may be just.

Sec. 46. Entry of satisfaction of judgment by clerk or judge.— Satisfaction of a judgment shall be entered by the clerk or judge in his docket, and in his judgment book if it be the judgment of a superior court, upon the return of an execution satisfied, or upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment creditor, or by the attorney of the judgment creditor unless a revocation of his authority is filed, or upon the indorsement of such admission by the judgment creditor or his attorney on the face of the record of the judgment.

Sec. 47. Entry of satisfaction with or without admission.— Whenever a judgment is satisfied in fact, otherwise than upon an execution, the judgment creditor or his attorney must execute and acknowledge, or indorse, an admission of the satisfaction as provided in the last preceding section, and after notice and upon motion the court may order either the judgment creditor or attorney so to do, or may order the entry of satisfation to be made without such admission.

Sec. 48. When principal bound by judgment against surety.— When a judgment is rendered against a party, and such party stands in the relation of surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety’s request to join in the defense.

Sec. 49. Effect of judgments.—The effect of a judgment or final order rendered by a court or judge of the Philippines, having jurisdiction to pronounce the judgment or order, may be as follows: (a) In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or order is conclusive upon the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases the judgment or order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

SEC. 50. Effect of foreign judgments.— The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows: (a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing; (b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

APPEALS

Rule 40 APPEAL FROM INFERIOR COURTS TO COURTS OF FIRST INSTANCE

Section 1. Who may appeal.— Either party to an action may appeal from a judgment rendered by an inferior court to the Court of First Instance of the province where the judgment was rendered.

Sec. 2. Appeal, how perfected.— An appeal shall be perfected within fifteen (15) days after notification to the party of the judgment complained of, (a.) by filing with the justice of the peace or municipal judge a notice of appeal; (b) by delivering a postal money order for the amount of the appellate court docket fee, or a certificate of the municipal treasurer showing that the appellant has deposited such appellate court docket fee, or, in chartered cities, a certificate of the clerk of the municipal court showing receipt of the said fee; and (c) by giving a bond.

Sec. 3. Appeal bond.— The bond to be given by the appellant shall be filed with the justice of the peace or municipal court and shall be in the sum of sixty pesos (P60), executed to the adverse party, with at least one sufficient surety, conditioned that the appellant will pay all costs which the Court of First Instance may award against him. In lieu of such bond, the appellant may file with the court a postal money order for fifty pesos (P50) or a certificate of the proper official that the appellant has deposited fifty pesos (P50) with the municipal or city treasurer and that said sum is available for the satisfaction of any judgment for costs that may be rendered against appellant by the Court of First Instance. In case judgment is rendered in appellant’s favor the sum deposited in lieu of appeal bond shall be returned to him by the official with whom it was deposited.

Sec. 4. Interruption of time to appeal.—The time during which a motion for new trial has been pending shall be deducted from the period for perfecting an appeal.

Sec. 5. Transmittal of record.— The justice of the peace or municipal judge from whose judgment an appeal is taken, shall, within five (5) days after the perfection of the appeal, transmit to the clerk of the Court of First Instance for the province or city a certified copy of the docket entries, together with all the original papers and process in the case and the original appeal bond, or in lieu thereof, the postal money order, or certificate of deposit, and the appellate court docket fee.

Sec. 6. Duty of clerk of the Court of First Instance.— It shall be the duty of the clerk of the Court of First Instance, upon receipt of the record, to deliver the money order or the deposit certificate within five (5) days to the provincial treasurer, who shall immediately pay the court docket fee, and the clerk, as soon as the fee be in his possession, shall enter the appeal upon the docket of his office

Sec. 7. Reproduction of pleadings on appeal.— Except in summary proceedings under section 17 of Rule 5, upon the docketing of the case under appeal, it shall be the duty of the clerk of the court to notify the parties of that fact by registered mail. Thereupon, the pleadings riled in the justice of the peace or municipal court shall be considered reproduced in the Court of First Instance.

Sec. 8. Settlement of appealed cases.— At any time after the perfection of an appeal from a judgment of a justice of the peace or municipal judge, and before the papers have been transmitted to the clerk of the Court of First Instance to which the action is appealed, the parties may adjust the controversy by agreement in writing, signed by both parties and filed with the justice of the peace or municipal judge, who shall enter the same upon his docket, and no further proceeding shall thereafter be taken in the action. But if the appeal papers have already been transmitted to the clerk of the Court of First Instance, then the justice of the peace or the municipal judge shall immediately transmit the compromise agreement to the clerk of the Court of First Instance, who shall file the same and enter a memorandum thereof upon his docket, and no further proceedings shall thereafter be taken in the action.

Sec. 9. Effect of appeals.— A perfected appeal shall operate to vacate the judgment of the justice of the peace or the municipal court, and the action when duly docketed in the Court of First Instance shall stand for trial de novo upon its merits in accordance with the regular procedure in that court, as though the same had never been tried before and had been originally there commenced. If the appeal is withdrawn, or dismissed for failure to Prosecute, the judgment shall be deemed revived and shall forthwith be remanded to the justice of the peace or municipal court for execution.

Sec. 10. Appellate powers of Courts of First Instance where action not tried on its merits by inferior court.— Where the action has been disposed of by an inferior court upon a question of law and not after a valid trial upon the merits, the Court of First Instance shall on appeal review the ruling of the inferior court and may affirm or reverse it, as the case may be. In case of reversal, the case shall be remanded for further proceedings.

Sec. 11. Lack of jurisdiction.— A case tried by an inferior court without jurisdiction over the subject matter shall be dismissed on appeal by the Court of First Instance. But instead of dismissing the case, the Court of First Instance in the exercise of its original jurisdiction, may try the case on the merits if the parties therein file their pleadings and go to the trial without any objection to such jurisdiction.

RULE 41 APPEALS PROM COURTS OF FIRST INSTANCE AND THE SOCIAL SECURITY COMMISSION TO COURT OF APPEALS

Section 1. Exceptions unnecessary.— Formal exceptions to rulings, orders or a judgment of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

Sec. 2. Judgments or orders subject to appeal.— Only final judgments or orders shall be subject to appeal. No interlocutory or incidental judgment or order shall stay the progress of an action, nor shall it be the subject of appeal until final judgment or order is rendered for one party or the other. A judgment denying relief under Rule 38 is subject to appeal, and in the course thereof, a party may also assail the judgment on the merits, upon the ground that it is not supported by the evidence or it is contrary to law. A party who has been declared in default may likewise appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition for relief to set aside the order of default has been presented by him in accordance with Rule 38.

Sec. 3. How appeal is taken.— Appeal may be taken by serving upon the adverse party and filing with the trial court within thirty (30) days from notice of order or judgment, a notice of appeal, an appeal bond, and a record on appeal. The time during which a motion to set aside the judgment or order or for a new trial has been pending shall be deducted, unless such motion fails to satisfy the requirements of Rule 37. But where such a motion has been filed during office hours of the last day of the period herein provided, the appeal must be perfected within the day following that in which the party appealing received notice of the denial of said motion.

Sec. 4. Notice of appeal.— The notice of appeal shall specify the parties to the appeal; shall designate the judgment or order, or part thereof, appealed from; and shall specify the court to which the appeal is taken.

Sec. 5. Appeal bond.— The appeal bond shall answer for the payment of costs. It shall be in the amount of one hundred and twenty pesos (P120) unless the court shall fix a different amount. If the appeal bond is not in cash it must be approved by the court before the transmittal of the record on appeal to the appellate court.

Sec. 6. Record on appeal; form and contents thereof.— The full names of all the parties to the proceedings shall be stated in the caption of the record on appeal and it shall include the order or judgment from which the appeal is taken, and, in chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are related to the appealed order or judgment and necessary for the proper understanding of the issue involved, together with such data as will show that the appeal was perfected on time. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the evidence, oral and documentary, taken upon the issue involved. The reference shall specify the documentary evidence by the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and the oral evidence by the names of the corresponding witnesses. If the whole oral and documentary evidence in the case is to be included, a statement to that effect will be sufficient without mentioning the names of the witnesses or the numbers or letters of exhibits. Every record on appeal exceeding twenty (20) pages must contain a subject index.

Sec. 7. Hearing and approval of record.— Upon the submission for approval of the record on appeal, if no objection is filed within five (5) days, the trial judge may approve it as presented or, upon his own motion or at the instance of the appellee, may direct its amendment by the inclusion of any matters omitted which are deemed essential to the determination of the issue of law or fact involved in the appeal. If the trial judge orders the amendment of the record, the appellant, within the time limited in the order, or such extension thereof as may be granted, or if no time is fixed by the order within ten (10) days from receipt thereof, shall redraft the record by including therein, in their proper chronological sequence, such additional matters as the court may have directed him to incorporate, and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as the original draft.

Sec. 8. Joint record on appeal.— Where both parties are appellants they may file a joint record on appeal within the time fixed by section 3 of this rule, or that fixed by the court.

Sec. 9. When appeal deemed perfected; effect thereof. — If the notice of appeal, the appeal bond and the record on appeal have been filed in due time, the appeal is deemed perfected upon the approval of the record on appeal and of the appeal bond other than a cash bond, and thereafter the trial court loses its jurisdiction over the case, except to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, to approve compromises offered by the parties prior to the transmittal of the record on appeal to the appellate court, and to permit the prosecution of pauper’s appeals.

Sec. 10. Duty of clerk of court after approval of the record.— Upon the approval of the record on appeal by trial judge, it shall be the duty of the clerk of the trial court to verify the correctness of the copies of all petitions, motions, pleadings, orders and decisions included therein, as well as the dates of filing and receipt thereof by the parties, and to make a certificate of their correctness. Sec. 11. Transmittal.— The clerk of the trial court shall transmit to the appellate court the record on appeal within ten (10) days after its approval, together with a certified copy of the minutes of the proceedings, the order of approval, the certificate of correctness, and the original documentary evidence referred to therein. A true copy of such documentary evidence shall be prepared by the clerk and shall remain in the lower court. The documentary exhibits to be forwarded by the clerk of the trial court to the appellate court shall be collected in a separate folder which shall contain an index of such exhibits. The exhibit folder shall also contain a list of such other exhibits as by their nature can not be included in the folder, the list to indicate thereon the page of the record where they may be found, or the place where they may have been kept or deposited.

Sec. 12. Transcript — Upon the approval of the record on appeal the clerk shall direct the stenographer or stenographers concerned to attach to the record of the case five (5) copies of the transcript of the oral evidence referred to in the record on appeal. The stenographer or stenographers shall transcribe such oral evidence and shall prepare and affix to his transcript an index containing the names of the witnesses and the pages wherein their testimony is found, and a list of the exhibits and the pages wherein each of them appears to have been offered and admitted or rejected by the trial court. The transcripts shall be transmitted to the clerk of the trial court, who shall thereupon arrange the same in the order in which the witnesses testified at the trial, and shall cause the pages to be numbered consecutively. The original copy and three (3) copies of the transcripts shall be transmitted to the appellate court and the other copy shall remain in the lower court for examination of the parties or any of them.

Sec. 13. Effect of failure to file notice, bond, or record on appeal.— Where the notice of appeal, appeal bond or record on appeal is not filed within the period of time herein provided, the appeal shall be dismissed.

Sec. 14. Motion to dismiss appeal.— A motion to dis­miss an appeal on any of the grounds mentioned in the preceding section, may be filed in the Court of First Instance prior to the transmittal of the record to the appellate court.

Sec. 15. Mandamus.— When erroneously a motion to dismiss an appeal is granted or a record on appeal is disallowed by the trial court, a proper petition for mandamus may be filed in the appellate court.

Sec. 16. Appeal by pauper.— Where a party desiring to appeal shall establish to the satisfaction of the trial court that he is a pauper and unable to pay the expenses of prosecuting the appeal, and that the case is of such importance, by reason of the amount involved, or the nature of the questions raised, that it ought to be reviewed by the appellate court, the trial judge may enter an order entitling the party to appeal as pauper. The clerk shall transmit to the appellate court the entire record of the case, including the evidence taken on trial and the record on appeal, and the case shall be heard in the appellate court upon the original record so transmitted without printing the same. A petition to be allowed to appeal as pauper shall not be entertained by the appellate court.

Sec. 17. Appeal in certiorari, prohibition, mandamus, quo warranto, and employers’ liability cases. — In appeals in certiorari, prohibition, mandamus, quo warranto, workmen’s compensation, and employers’ liability cases, the original record of the case shall be transmitted to the appellate court in lieu of the record on appeal. The clerk of the trial court shall observe the provisions of section 11 of this rule as far as practicable.

SEC. 18. Appeal in habeas corpus cases, how taken. — An appeal in habeas corpus cases shall be perfected by filing with the clerk of the court or the judge who rendered the judgment, within forty-eight (48) hours from notice of such judgment, a statement that the person making it appeals therefrom.

Sec. 19. Who may appeal in habeas corpus cases. — The appeal in habeas corpus cases may be taken in the name of the person detained or of the officer or person detaining him. But if the detention is by reason of civil proceedings the party in interest or the person who caused the detention shall be entitled to control the appeal; and, if by virtue of criminal proceedings, the the provincial fiscal, or the city fiscal as the case may be, is entitled to control the appeal on behalf of the government, subject to the right of the Solicitor General to intervene.

Sec. 20. Effect of appeal in habeas corpus cases. — A judgment remanding the person detained to the custody of the officer or person detaining him, shall not be stayed by appeal. A judgment releasing the person detained shall not be effective until the officer or person detaining has been given opportunity to appeal. An appeal taken by such officer or person shall stay the order of release, unless the person detained shall furnish a satisfactory bond in an amount fixed by the court or judge rendering the judgment. The bond shall be conditioned for the appearance of the person detained before the appellate court to abide its order in the appeal.

Sec. 21. Transmittal of record in appeals in habeas corpus cases.— Immediately after an appeal is taken in habeas corpus cases, the clerk, or judge, shall transmit to the appellate court the original petition for the writ of habeas corpus, the return thereon, a statement of all the proceedings therein and the original judgment discharging or remanding the person detained, together with all the papers used upon the hearing, the statement of appeal, and the orders in regard thereto. The correctness of the papers shall be certified to by the clerk or judge transmitting them.

Sec. 22. Withdrawal of appeal.— An appeal in any case may be withdrawn in the Court of First Instance before the record on appeal is transmitted to the appellate court. After the transmittal of the record, the withdrawal of the appeal may be done in the appellate court as provided in section 4 of Rule 50.

Sec. 23. Appeals from the Social Security Commission.— The provisions of this rule shall apply to appeals from the Social Security Commission to the Court of Appeals.

RULE 42 APPEAL FROM COURTS OF FIRST INSTANCE TO SUPREME COURT

Section 1. Procedure.— The procedure of appeal to the Supreme Court from Courts of First Instance shall be governed by the same rules governing appeals to the Court of Appeals, except as hereinafter provided.

Sec. 2. Appeal on pure question of law.— Where the appellant states in his notice of appeal or record on appeal that he will raise only questions of law, no other questions shall be allowed, and the evidence need not be elevated.

Rule 43 APPEAL FROM AN ORDER OR DECISION OF SECURITIES AND EXCHANGE COMMISSION, LAND REGISTRATION COMMISSION, COURT OP AGRARIAN RELATIONS, SOCIAL SECURITY COMMISSION, SECRETARY OF LABOR UNDER SECTION 7 OF THE MINIMUM WAGE LAW, COURT OF INDUSTRIAL RELATIONS, CIVIL AERONAUTICS BOARD, WORKMEN’S COMPENSATION COMMISSION AND COMMISSION ON ELECTIONS

Section 1. Bow appeal taken.— Any party may appeal from a final order, ruling or decision of the Securities and Exchange Commission, the Land Registration Commission, the Court of Agrarian Relations, the Social Security Commission, the Secretary of Labor under
Section 7 of the Minimum Wage Law, the Court of Industrial Relations, the Civil Aeronautics Board, the Workmen’s Compensation Commission, and the Commission on Elections by filing with said bodies a notice of appeal and with the Supreme Court twelve (12) printed or mimeographed copies of a petition for certiorari or review of such order, ruling or decision, as the corresponding statute may provide. A copy of the petition shall be served upon the court, commission, board or officer concerned and upon the adverse party, and proof of service thereof attached to the original of the petition.

Sec. 2. Contents of petition.— The petition shall contain a concise statement of the issues involved and the grounds relied on for the petition, and shall be accompanied with a true copy of the ruling, order or decision appealed from, together with the copies of such material portions of the record as are referred to therein and other supporting papers. The questions raised must be distinctly set forth in the petition. The petition shall be made under oath and shall show, by mention of the specific material dates, that it was filed within the period fixed in this rule.

Sec. 3. Grounds.— The petition may be filed on the ground that the body rendering the ruling, order or decision appealed from, has decided a question of substance not theretofore determined by the Supreme Court, or has decided it in a way not in accord with law or the applicable decisions of the Supreme Court. Decisions of the Court of Agrarian Relations may, in discretion of the court, also be reviewed upon proper mowing that the findings of fact are not supported by substantial evidence.

Sec. 4. Period for filing.— Appeals from an order, ruling or decision of the Securities and Exchange Commission and the Land Registration Commission, shall be brought within a period of thirty (30) days from notice of such ruling, order or decision; those from the Court of Agrarian Relations, the Social Security Commission, and the Secretary of Labor under
Section 7 of the Minimum Wage Law, within a period of fifteen (15) days; and those from the Court of Industrial Relations, the Civil Aeronautics Board, the Workmen’s Compensation Commission, and the Commission on Elections, within a period of ten (10) days.

Sec. 5. Docketing fee.— Upon filing the petition the petitioner shall pay to the clerk of the Supreme Court the docketing fee.

Sec 6. Dismissal.— Upon petition of the respondent filed within five (5) days from service of the petition, or upon its own motion, the Supreme Court may dismiss the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. However, no petition shall be dismissed on account of a mistaken designation of the method of appeal, if the contents thereof substantially comply with the requirements of this rule, in which case the pleading shall be treated as a petition for review.

Sec. 7. Deposit for costs.— If the petition is given due course, the petitioner shall deposit the sum of eighty pesos (P80) for costs within three (3) days from notice by the clerk of court, unless a different period is fixed by the court. Upon failure of petitioner to make the deposit within the said period, the petition shall be dismissed.

Sec 8. Elevation of record.— Within five (5) days from the deposit of the costs, the clerk of the Supreme Court shall notify the clerk of the court, commission, board or office concerned to forward the record of the case. Within five (5) days from receipt of such notice, the whole record of the case shall be forwarded to the Supreme Court in appeals from the Securities and Exchange Com­mission and the Land Registration Commission. In appeals from the Court of Agrarian Relations, the Secretary of Labor under
Section 7 of the Minimum Wage Law the Court of Industrial Relations, the Civil Aeronautics Board, the Workmen’s Compensation Commission, the Commission on Elections and the Social Security Commission, certified true copies of the record shall be elevated to the Supreme Court.

Sec. 9. Answer of respondent.—Immediately after deposit for costs is made, the clerk shall require respondent to answer within ten (10) days from notice. The answer shall be accompanied with true copies of such material portions of the record as are referred to therein together with other supporting papers. Copy of the answer shall be served by the respondent upon the petitioner.

Sec. 10. Effect of appeal.— The appeal shall not stay the order, ruling or decision of the Securities and Exchange Commission, the Land Registration Commission, the Court of Agrarian Relations, the Social Security Commission, the Secretary of Labor under
Section 7 of the Minimum Wage Law, the Court of Industrial Relations, and the Commission on Elections, but shall stay that of the Civil Aeronautics Board and the Workmen’s Compensation Commission, unless the Supreme Court shall direct otherwise upon such terms as it may deem just.

Rule 44 APPEAL FROM AN AWARD, ORDER OR DECISION OF PUBLIC SERVICE COMMISSION, PATENT OFFICE, AGRICULTURAL INVENTIONS BOARD, COURT OF TAX APPEALS, AND GENERAL AUDITING OFFICE

SECTION 1. How appeal taken.—An appeal from a final award, order or decision of the Public Service Commission, Patent Office, the Agricultural Inventions Board, the Court of Tax Appeals, and the General Auditing Office, be perfected by filing with said bodies a notice of appeal and with the Supreme Court twelve (12) copies of a petition for review of the award, order or ruling complained of, within a period of thirty (30) days from notice of such award, order or decision.

Sec. 2. Grounds of and procedure on appeal.— Questions of law may be raised in an appeal from an award, order or decision of the above-mentioned bodies. Findings of fact if not supported by substantial evidence may also be reviewed. The procedure on appeal shall be governed by the provisions of Rule 43 in matters not covered by this rule, but the deposit for costs shall be made together with the payment of the docketing fee.

Sec. 3. Elevation of record. —Within five (5) days from the deposit of the costs, the clerk of the Supreme Court shall notify the clerk of the court, commission, or office concerned to forward the record of the case. Within five (5) days from such notice, the whole record shall be forwarded in appeals from the Public Service Commission, the Court of Tax Appeals or the General Auditing Office; but in appeals from the Patent Office and the Agricultural Inventions Board certified true copies of the record shall be sufficient.

Sec. 4. Effect of appeal.— The appeal shall not stay the award, order or decision of the Public Service Commission, the Patent Office and the Agricultural Inventions Board, but shall stay that of the Court of Tax Appeals and the General Auditing Office.

Rule 45 APPEAL FROM COURT OF APPEALS TO SUPREME COURT

Section 1. Filing of petition with Supreme Court. — A party may appeal by certiorari, from a judgment of the Court of Appeals, by filing with the Supreme Court a petition for certiorari, within fifteen (15) days from notice of judgment or of the denial of his motion for reconsideration filed in due time, and paying at the same time, to the clerk of said court the corresponding docketing fee. The petition shall not be acted upon without proof of service of a copy thereof to the Court of Appeals.

Sec. 2. Contents of petition.— The petition shall contain a concise statement of the matters involved, the assignment of errors made in the court below, and the reasons relied on for the allowance of the petition, and it should be accompanied with a true copy of the judgment sought to be reviewed, together with twelve (12) copies of the record on appeal, if any, and of the petitioner’s brief as filed in the Court of Appeals. A verified statement of the date when notice of judgment and denial of the motion for reconsideration, if any, were received shall accompany the petition. Only questions of law may be raised in the petition and must be distinctly set forth. If no record on appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon admission of the petition, shall demand from the Court of Appeals the elevation of the whole record of the case.

Sec. 3. Dismissal.— Upon petition of the respondent filed within five (5) days from service of the petition, or upon its own motion, the Supreme Court may dismiss the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Sec. 4. Review of Court of Appeals’ decision, discretionary.— A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the hurt’s discretion, indicate the character of reasons which will be considered: (a) When the Court of Appeals has decided a question substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; (b) When the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.

Sec. 5. Deposit for costs.— If the petition is given due course, the petitioner shall deposit the sum of eighty pesos (P80) for costs within five (5) days from notice unless a different period is fixed by the court. Upon failure of petitioner to make the deposit within the said period, the petition may be dismissed.

PROCEDURE IN THE COURT OF APPEALS
Rule 46 APPEALED CASES

Section 1. Title of cases.— In all cases removed to the Court of Appeals, the party bringing the case shall be called the “appellant” and the adverse party the “appellee,” but the title of the case shall remain as it was below.

Sec. 2. Attorneys and guardians.— Attorneys and guarddians ad litem of the respective parties in the court below shall be considered as the attorneys and guardians of the same parties respectively in the Court of Appeals. When others are appointed notice thereof shall be served immediately on the adverse party and filed with the court.

Sec. 3. Order of transmittal of record.— If the record on appeal is not received by the Court of Appeals within thirty (30) days after the approval thereof, the appellee may, upon notice to the appellant, move the court to grant an order directing the clerk of the lower court forthwith to transmit such record on appeal or to declare the same abandoned for failure to prosecute.

Sec. 4. Notice of receipt of record.— The clerk upon receiving the record on appeal shall cause a notice of that fact to be served on the parties.

Sec. 5. Duty of appellant upon receipt of notice. — It shall be the duty of the appellant, within fifteen (15) days from the date of the notice referred to in the preceding section, to pay to the clerk of the Court of Appeals the fee for the docketing of the appeal, and within sixty (60) days from such notice to submit to the court forty (40) printed copies of the record on appeal, together with proof of service of fifteen (15) printed copies thereof upon the appellee. Where the appellant has been authorized to appeal as pauper, he shall file with the court seven (7) clearly typewritten or mimeographed copies of his record on appeal, together with proof of service of one (1) copy thereof upon the adverse party.

Sec. 6. Place of payment.— The appellant may, at his election, pay the docketing fee to the clerk of the lower court at any time before the transmission of the record on appeal, in which event the docketing fee shall be transmitted with the record on appeal.

Sec. 7. Objections to printed record on appeal.— Within thirty (30) days from receipt of the printed copies of the record on appeal, the appellee shall submit a statement to the court specifying his objections to the printed record. No alterations, omissions or additions in the printed record shall be allowed, and a violation of this prohibition shall be a ground for dismissal of the appeal. The period fixed in the preceding paragraph shall not suspend or interrupt the period for filing the appellant’s brief as provided in section 10 of this rule.

Sec. 8. Elevation of evidence.— Upon receipt of printed copies of the record on appeal, the clerk shall ascertain whether or not the transcript and exhibits have been elevated, and if not, shall cause this to be done.

Sec. 9. Service of printed copies of record on appeal.— Upon receipt of the printed copies of the record on appeal, the clerk shall at once cause fifteen (15) of them to be served by registered mail or personal delivery upon each party or his attorney.

Sec. 10. Appellant’s brief.— After receipt by the appellant of fifteen (15) copies of the printed record on appeal, it shall be his duty to file with the clerk, within forty-five (45) days from receipt of notice of the clerk to the effect that all the evidence, oral and documentary, is already attached to the record, forty (40) copies of his printed brief together with proof of service of five (5) copies thereof upon the appellee. If the appellant is duly authorized to appeal as pauper, or if for sufficient cause he is relieved of the obligation to file a printed brief, he may file seven (7) legibly typewritten or mimeographed copies of his brief with copies of the judgment or order appealed from as appendix thereto, within forty-five (45) days from notice by the appellate court that all the evidence, oral and documentary, is already attached to the record of the case, and shall serve a copy of the brief on the appellee.

Sec. 11. Appellee’s brief.— Within forty-five (45) days from receipt of appellant’s brief, the appellee shall file with the court forty (40) copies of his printed brief together with proof of service of five (5) copies thereof upon the appellant. A pauper appellee may file seven (7) legibly typewritten or mimeographed copies of his brief, and serve a copy on the appellant.

Sec. 12. Appellant’s reply brief.— Within twenty (20) days from receipt of appellee’s brief, the appellant may file a reply brief answering points in appellee’s brief not already covered in his main brief.

Sec. 13. Time of filing brief in special cases.— In mandamus, certiorari, prohibition, quo warranto, habeas corpus, election contest, workmen’s compensation, employers’ liability and social security cases, the respective briefs of the parties shall be filed within thirty (30) days but the court may still shorten this period as the circumstances may require.

Sec. 14. Several appellants or appellees or several attorneys for each party.— Where there are several appellants or appellees, each attorney representing one or more but not all of them shall be served with only three (3) copies of the briefs. And when several attorneys represent one party appellant or appellee, copies of the brief may be served upon any of them.

Sec. 15. Extension of time for filing brief.— Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended.

Sec. 16. Contents of appellant’s brief.— The appellants brief shall contain in the order herein indicated the following: (a) A subject index of the matter in the brief with a digest of the argument and page references and a table of cases alphabetically arranged, textbooks and statutes cited with reference to the pages where they are cited (b) An assignment of the errors intended to be urged. Such errors shall be separately, distinctly and concisely stated without repetition, and shall be numbered consecutively ; (c) Under the heading “Statement of the Case,” a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record; (d) Under the heading “Statement of Facts,” a clear and concise statement in a narrative form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record; (e) A clear and concise statement of the issues of fact or law to be submitted to the court fox its judgment; (f) Under the heading “Argument,” the appellant’s arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found; (g) Under the heading “Relief,” a specification of the or judgment which the appellant seeks; (h) In cases not brought up by record on appeal, the appellant’s brief shall contain as an appendix, a copy of the Judgment or order appealed from.

Sec. 17. Contents of appellee’s brief.— The appellee’s brief shall contain in the order herein indicated the following: (a) A subject index of the matter in the brief with a digest of the argument and page references and a table of cases alphabetically arranged, textbooks, and statutes cited with references to the pages where they are cited; (b) Under the heading “Statement of Facts,” the appellee shall state that he accepts the statement of facts in the appellant’s brief, or under the heading “Counter Statement of Facts,” he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in appellant’s statement of facts; (c) Under the heading “Argument,” the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found.

Sec. 18. Questions that may be raised on appeal.— Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties.

Rule 47 ORIGINAL CASES
Section 1. Title of cases.— In all cases originally filed in the Court of Appeals, the party instituting the action shall be called the “petitioner” and the opposing party the “respondent.”Sec. 2. Petition.— In cases coming within the original jurisdiction of the Court of Appeals, the petition shall be accompanied with supporting papers, including copies of the decision or order to be reviewed. A sufficient number of copies of the petition and supporting papers shall be signed by the petitioner and filed with the court to be served upon the respondents.Sec. 3. Order.— Immediately upon the filing of the petition, the clerk shall report the same to the court and upon a prima facie showing the court shall order the respondent to answer the petition, within ten (10) days from the date of service. A copy of the order with a copy of the petition shall be served upon the respondents by the sheriff or his deputy or any officer designated by the court. In habeas corpus cases against a government official, service shall be made also upon the Solicitor General.Sec. 4. Answer.— The respondent, within the time herein provided, shall file his answer with the court and serve a copy thereof upon the petitioner, otherwise the petition shall be heard ex parte.

Sec. 5. Oral argument.— Upon the filing and service of the respondent’s answer if no issue of fact is therein raised, the court shall fix a date for oral argument with notice upon the parties, unless it dismisses the petition upon the pleadings filed.

Rule 48 ORAL ARGUMENT

Section 1. When appealed case deemed submitted for decision.—Upon the filing of appellant’s reply brief, or after the expiration of the time for its filing, the case shall be deemed submitted for decision, unless within twenty (20) days any party asks and for special reasons is thereafter granted permission for oral argument, or unless the court on its own motion requires it. Oral argument shall be confined to such points as the court may specify in an order setting the date therefor. This section shall apply to all appeals by petition for review or certiorari, petitioner being considered the appellant.

Sec. 2. Order of oral argument.— The appellant, petitioner, or, in the discretion of the court, the party who applied for oral argument, may open the same; the adverse party may then follow; and the closing argument shall belong to the party who opened it. Two counsel may, in the discretion of the court, be heard upon each side, but in the order herein provided.

Sec. 3. Duration of oral argument.— Each party shall be entitled to half an hour for oral argument, extendible in the discretion of the court.

Sec. 4. Memoranda and list of authorities.— Memoranda may be admitted at the hearing in lieu of oral argument. A citation of authorities not already referred to in the briefs may also be admitted at the hearing.

Sec. 5. Oral argument of appellee without brief.— If the appellee fails to file his brief in time and the case is called for oral argument, he shall only be heard in reply to appellant’s oral argument or memorandum.

Sec. 6. Completion or correction of record.— If the court discovers that the record before it is so incomplete or incorrect that justice requires the same to be completed or corrected, the court may make such order as may be proper and necessary to that effect.

Sec. 7. Original papers may be required.— Whenever it is necessary or proper in the opinion of the court that original papers of any kind should be inspected in the court on appeal, it may make such order for the transmission, safekeeping, and return of such original papers as may seem proper, and the court may receive and consider such original papers in connection with the record.

Sec. 8. Hearing of appeals in habeas corpus cases.— Appeals in habeas corpus cases shall take precedence over all other cases in the Court of Appeals. At the hearing of the appeal, if the person detained is on bail, his presence shall be required, and likewise at the time of the rendition of the judgment by the appellate court. His absence, however, shall not preclude the appellate court from proceeding in its discretion to hear the appeal and render judgment, but the court may forthwith declare his bond forfeited and order that the person detained foe remanded to the custody of the officer or person detaining him. The sum due upon the forfeited bond shall be collected in the same manner as in criminal proceedings.

Rule 49 PLEADINGS, MOTIONS, SERVICE OF PAPERS

SECTION 1. Pleadings, motions, service of papers and proof thereof.— Pleadings, motions, filing and service of papers, and proof thereof, except as otherwise provided, shall be governed by Rules 7, 8, 9, 13 and 15, in so far as they are not inconsistent with the provisions of this rule.

Sec. 2. No oral argument for motions.— No oral argument will be heard in support of motions, unless the court otherwise directs. The adverse party may file objections within five (5) days from service, upon the expiration of which the motion shall be deemed submitted for ruling.

Sec. 3. Effectiveness of service.— Unless otherwise provided by these rules, service of notices, of pleadings and of all other papers shall take effect upon the expiration of five (5) days from receipt.

Rule 50 DISMISSAL OF APPEAL

Section 1. Grounds for dismissal of appeal.— An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was perfected within the period fixed by these rules; (b) Failure to file, within the period prescribed by these rules, the notice of appeal, appeal bond or record on appeal; (c) Failure of the appellant to prosecute his appeal under section 3 of Rule 46; (d) Failure of the appellant to pay the docketing fee as provided in section 5 of Rule 46; (e) Unauthorized alterations, omissions or additions in the printed record on appeal; (f) Failure of the appellant or of Ms printer, to serve and file the required number of copies of his brief within the time provided by these rules; (g) Want of specific assignment of errors in the appellant’s brief, or of page references to the record as required in section 16 (d) of Rule 46; (h) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; and (i) That the order or judgment appealed from is not appealable.

Sec. 2. Effect of dismissal.— Fifteen (15) days after the dismissal of an appeal, the clerk shall return to the court below the record on appeal with a certificate under the seal of the court showing that the appeal has been dismissed. Upon the receipt of such certificate in the lower court the case shall stand there as though no appeal had ever been taken, and the judgment of the said court may be enforced with the additional costs allowed by the appellate court upon dismissing the appeal.

Sec. 3. Where appealed case erroneously, brought. — Where the appealed case has been erroneously brought to the Court of Appeals, it shall not dismiss the appeal, but shall certify the case to the proper court, with a specific and clear statement of the grounds therefor.

Sec. 4. Withdrawal of appeal.— An appeal may be withdrawn as of right at any time before the filing of appellee’s brief. After that brief is filed the withdrawal may be allowed by the court in its discretion. The withdrawal of an appeal shall have the same effect as that of a dismissal in accordance with section 2 of this rule.

Rule 51 JUDGMENT

SECTION 1. Justices; who may take part.— All matters submitted to the court for its consideration and adjudication will be deemed to be submitted for consideration and adjudication by any and all of the Justices who are members of the division of the court at the time when such matters are taken up for consideration and adjudication, whether such Justices were or were not present at the date of submission; however, only those members present when any matter is submitted for oral argument will take part in its consideration and adjudication, if the parties or either of them, express a desire to that effect in writing filed with the the clerk at the date of submission.

Sec. 2. Quorum of the court.— The unanimous vote of the three Justices of a division shall be necessary for the pronouncement of a judgment. In the event that the three Justices do not reach a unanimous vote, the Presiding Justice shall designate two Justices from among the other members of the court to sit temporarily with them, forming a special division of five Justices, and the concurrence of a majority of such division shall be necessary for the pronouncement of a judgment.

Sec. 3. Disposition of a case.— The Court of Appeals, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify the judgment or order appealed from, and may direct a new trial or further proceeding to be had. When a new trial shall be granted, the court shall pass upon all the questions of law involved for the final determination of the action.

Sec. 4. Findings of the court.— Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it. Sec 5. Harmless error.— No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted e court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect which does not affect the substantial rights of the parties.

Sec. 6. Judgment where there are several parties. — In all actions or proceedings, an appealed judgment may be affirmed as to some of the appellants, and reversed as to others, and the case shall thereafter be proceeded with, so far as necessary, as if separate actions had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper.

Sec. 7. Questions that may be decided.— No error which does not affect the jurisdiction over the subject matter will be considered unless stated in the assignment of errors and properly argued in the brief, save as the court, at its option, may notice plain errors not specified, and also clerical errors.

Sec. 8. Interest-bearing claim.— Unless otherwise provided, when the judgment rendered by the Court of Appeals is upon an interest-bearing claim, it shall bear the same rate of interest as the claim; when upon a non-interest-bearing claim, it shall bear the legal rate of interest.

Sec. 9. Filing and notice of judgment.— After the judgment and dissenting opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall cause true copies thereof to be served upon the parties or their counsel.

Sec. 10. Entry of judgment.— The judgment shall be entered upon the expiration of fifteen (15) days after service of notice thereof upon the parties. In criminal cases where defendant is acquitted, or judgment is based upon petition of appellant without objection on the part of the appellee praying for the dismissal of the case, entry shall be made immediately. The entry shall be in the same form as is provided in section 2 of Rule 36.

SEC. 11. Return of case.— Ten (10) days after entry of judgment, the clerk shall return the records of the case to the lower court, unless notice is given of intention to petition the Supreme Court for a writ of certiorari, in which event the mittimus shall be stayed. Upon returning the case, the clerk shall transmit to the court below a certified copy of the judgment for execution. It shall be the duty of the clerk of the lower court to notify the parties within five (5) days of the receipt by him of the records of a case from the appellate court.

Rule 53 NEW TRIALSECTION 1. Petition.— Before a final order or judgment rendered by the Court of Appeals becomes executory, a motion for a new trial may be filed on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence.

Sec. 2. Hearing and order.—The Court of Appeals shall consider the new evidence together with that adduced on the trial below, and may grant or refuse a new trial, or may make such order, with notice to both parties, as to taking further testimony, either orally in court, or by depositions, or render such other judgment as ought to be rendered, in view of the whole case, upon such terms as it may deem just. Sec. 3. Procedure in new trial.— Unless the court otherwise directs, the procedure in the new trial shall be the same as if granted by a Court of First Instance.

Rule 54 INTERNAL BUSINESSSECTION 1. Distribution of cases among divisions. — All the cases of the Court of Appeals shall be allotted among the different divisions thereof for hearing and decision. The Court of Appeals, sitting in banc, shall make proper orders or rules to govern the allotment of cases among the different divisions, the constitution of such divisions, the regular rotation of Justices among them, the filling of vacancies occurring therein, and other matters relating to the business of the court; and such rules shall continue in force until repealed or altered by it or by the Supreme Court.

Sec. 2. Decisions within term.— All cases submitted to a division of the Court of Appeals for decision shall be decided or terminated therein within the term in which they were heard and submitted for decision. However, when a case is complicated or otherwise attended with special circumstances which demand additional time for its study or consideration, the Court of Appeals, sitting to bane, may, upon petition of the division concerned, grant an additional period not exceeding three (3) months for its disposition or termination.

Sec. 3. Quorum of the court.— Eleven Justices of the Court of Appeals shall constitute a quorum for its sessions in bane; and three Justices shall constitute a quorum for the sessions of a division. In the absence of a quorum, the court or the division shall stand ipso facto adjourned until such time as the requisite number shall be present, and a memorandum showing this fact shall be inserted by the clerk in the minutes of the court. The affirmative vote of ten Justices is necessary to pass a resolution of the court in banc.

Rule 55 PUBLICATION OF DECISIONS

With the consent of the respective writers thereof, the decisions of the court shall be published in the Official Gazette and in the Appellate Court’s Reports in the language in which they have been originally written. Memoranda of all other decisions not so published shall be made by the reporter and published in the Official Gazette and included in the Appellate Court’s Reports. The syllabi for the decisions shall be prepared by the reporter in consultation with the writers thereof.

PROCEDURE IN THE SUPREME COURT

Rule 56 APPEALED AND ORIGINAL CASES

Section 1. Procedure similar to that of Court of Appeals.— Unless otherwise provided by the Constitution or by law, the procedure in the Supreme Court in original ff as well as in appealed cases, shall be the same as in Court of Appeals, except as hereafter provided.

Sec. 2. Copies to be filed in appealed as well as in original cases.— In appeals under Rule 42, where record on appeal is required, twenty (20) printed copies thereof shall be submitted to the Supreme Court. In all other cases or whenever original jurisdiction is invoked, in addition to the original pleadings, memoranda and reports, and the necessary copies to be served on the adverse party, twenty (20) printed copies thereof shall be filed for the use of the court. Upon proper petition and showing the court may allow the filing of twelve (12) legibly typewritten copies in lieu of printed or mimeographed copies. The transcript of the testimony, whenever required by the rules, shall be filed in five (5) clearly legible copies besides the original that shall be attached to the record. Additional copies shall be made in the office of the clerk.

SEC. 3. Periods for filing briefs.— In all appeals, including petitions for review or certiorari, the appellant or petitioner shall file his brief within thirty (30) days from notice to this effect by the clerk of the Supreme Court. The appellee or respondent shall also file his brief with the said court within thirty (30) days from receipt of appellant’s brief.

Sec. 4. Copies of briefs to be filed.— Both appellant and appellee, or petitioner and respondent, shall file with the Supreme Court twenty (20) printed copies of their briefs, together with proof of service of five (5) copies thereof upon the adverse party.

Sec. 5. Mimeographed or typewritten copies of record on appeal and brief.—Where a party has been authorized to appeal as pauper, he shall file with the Supreme Court twelve (12) clearly typewritten or mimeographed copies of his record on appeal and brief, together with proof of service of one (1) copy thereof upon the adverse party.

Sec. 6. Appealed orders or decisions as appendix.— Unless records on appeal are required, orders or decisions sought to be reviewed, of the courts, commissions or officers involved, shall be copied in the appellant’s or petitioner’s brief as appendix.

SEC. 7. Extension of Mme.—No extension of time to file brief shall be granted except for special and weighty reasons, upon verified petition filed before the expiration of the period sought to be extended.

SEC 8. When case deemed submitted.— Upon the filing of the reply brief, or after the expiration of the time for its filing, the case shall be deemed submitted for decision, unless the court on its own motion, or upon motion of any party, for special reasons, requires oral argument. Oral argument shall be heard only on points specified in a special order of the court.

Sec. 9. Calendar of hearings.— The clerk shall prepare at the beginning of each month a calendar of hearings in original cases and in cases authorized to be heard on oral argument as provided in section 8 of this rule.

Sec. 10. Oral argument, its duration.— Each party shall be entitled to thirty (30) minutes for oral argument, extendible in the discretion of the court where motion for more time has been filed the day before the hearing.

Sec. 11. Procedure if opinion is equally divided. — Where the court in bane is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on re-hearing no decision is reached, the action shall be dismissed if originally commenced in the court; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied.

 

PROVISIONAL REMEDIES

Rule 57 ATTACHMENT

Section 1. Grounds upon which attachment may issue.— A plaintiff or any proper party may, at the commencement of the action or at any time thereafter, have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of money or damages on a cause of action arising from contract, express or implied, against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an officer; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in concealing or disposing of the property for the taking, detention or conversion of which the action is brought; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; (f) In an action against a party who resides out of the Philippines, or on whom summons may be served by publication.

Sec. 2. Issuance and contents of order.— An order of attachment may be granted by the judge of any court in which the action is pending, or by a Justice of the Court of Appeals or the Supreme Court, and must require the sheriff or other proper officer of the province to attach all the property of the party against whom it is issued within the province not exempt from execution, or so much thereof as may be sufficient to satisfy the applicant’s demand, the amount of which must be stated in the order, unless such party makes deposit or gives bond as hereinafter provided in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which is about to be attached. Several orders may be issued at the same time to the sheriffs or other proper officers of different provinces.

Sec. 3. Affidavit and bond required.— An order of attachment shall be granted only when it is made to appear by the affidavit of the applicant, or of some other person who personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding section, must be duly filed with the clerk or judge of the court before the order issues.

Sec. 4. Condition of applicant’s bond.— The party applying for the order must give a bond executed to the adverse party in an amount to be fixed by the judge, not exceeding the applicant’s claim, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto.

Sec. 5. Manner of attaching property.— The officer executing the order shall without delay attach, to await judgment and execution in the action, all the properties of the party against whom the order is issued in the province, not exempt from execution, or so much thereof as may be sufficient to satisfy the applicant’s demand, unless the former makes a deposit with the clerk or judge of the court from which the order issued, or gives a counter-bond executed to the applicant, in an amount sufficient to satisfy such demand besides costs, or in an amount equal to the value of the property which is about to be attached, to secure payment to the applicant of any judgment which he may recover in the action. The officer shall also forthwith serve a copy of the applicant’s affidavit and bond, and of the order of attachment, on the adverse party, if he be found within the province.

Sec. 6. Officer’s return.— Immediately after executing the order the officer must make a return thereon to the clerk or judge of the court from which the order issued, with a full statement of his proceedings under the order and a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued, and serve a copy of any such counter-bond on the applicant or his lawyer.

Sec. 7. Attachment of real and personal property; recording thereof.— Properties shall be attached by the officer executing the order in the following manner: (a) Real property, or growing crops thereon, standing upon the records of the registrar of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, by filing with the registrar of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any there be. Where the property has been brought under the operation of the Land Registration Act, the notice shall contain a reference to the number of the certificate of title and the volume and page in the registration book where the certificate is registered. The registrar must index attachments filed under this paragraph in the names both of the applicant and the adverse party; (b) Real property, or growing crops thereon or any interest therein, belonging to the party against whom attachment is issued, and held by any other person, or standing on the records of the registrar of deeds in the name of any other person, by filing with the registrar of deeds a copy of the order, together with a description of the property, and a notice that such real property, and any interest therein of said party, held by or standing in the name of such other person, naming him, are attached, and by leaving with the occupant of the property, if any, and with such other person, or his agent, if found within the province, or at the residence of either, if within the province, a copy of such order, description, and notice. Where the property has been brought under the operation of the Land Registration Act, the notice shall contain a reference to the number of the certificate of title and the volume and page in the registration book where the certificate is registered. The registrar of deeds must index attachments filed under this paragraph in the name of the applicant, of the adverse party and of the person by whom the property is held or in whose name it stands on the records; (c) Personal property capable of manual delivery, by taking and safely keeping it in his capacity, after issuing the corresponding receipt therefor; (d) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the order, and a notice stating that the stock or interest of the party against whom the attachment is issued, is attached in pursuance of such order; (e) Debts and credits, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the order, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property m his possession, or under his control, belonging to said party, are attached in pursuance of such order; (f) The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving executor or administrator or other personal representative of the decedent with a copy of the order and e that said interest is attached. A copy of said order attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be attached is in custodia legis, copy of the order of attachment shall be filed with the proper court and notice of the attachment served upon the custodian of such property.

SEC. 8. Effect of attachment of debts and credits.— All persons having in their possession or under their control any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to the same, at the time of service upon them of a copy of the order of attachment and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other property, until the attachment be discharged, or any judgment recovered by him be satisfied, unless such property be delivered or transferred, or such debts be paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment.

Sec. 9. Effect of attachment of interest in property belonging to the estate of a, decedent.— The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent, shall not impair the powers of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the officer making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him.

Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to officer.—Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and be examined on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk of the court, sheriff, or other proper officer on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action.

Sec. 11. Sale of perishable property.— Whenever it shall be made to appear to the judge of the court in which the action is pending, upon hearing after notice to both parties, if practicable, that the property attached is perishable, or that the interests of all the parties to the action will be subserved by the sale thereof, the judge may, on motion, order such property to be sold at public auction in such manner as he may direct, and the proceeds to be deposited in court to abide the judgment in the action.

Sec. 12. Discharge of attachment upon giving counter-bond.— At any time after an order of attachment has been granted, the party whose property has been attached, or the person appearing on his behalf, may, upon reasonable notice to the applicant, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order discharging the attachment wholly or in part on the security given. The judge shall, after hearing, order the discharge of the attachment if a cash deposit is made, or a counter-bond executed to the attaching creditor is filed, on behalf of the adverse party, with the clerk or judge of the court where the application made, in an amount equal to the value of the property attached as determined by the judge, to secure the payment of any judgment that the attaching creditor may recover in the action. Upon the filing of such counter-bond copy thereof shall forthwith be served on the attaching creditor or his lawyer. Upon the discharge of an attachment in accordance with the provisions of this section the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any reason be found to be, or become, insufficient, and the party furnishing the same fail to file an additional counter-bond, the attaching creditor may apply for a new order of attachment.

Sec. 13. Discharge of attachment for improper or irregular issuance.— The party whose property has been attached may also, at any time either before or after the release of the attached property, or before any attachment shall have been actually levied, upon reasonable notice to the attaching creditor, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order to discharge the attachment on the ground that the same was improperly or irregularly issued. If the motion be made on affidavits on the part of the party whose property has been attached, but not otherwise, the attaching creditor may oppose the same by counter-affidavits or other evidence in addition to that on which the attachment was made. After hearing, the judge shall order the discharge of the attachment if it appears that it was improperly or irregularly issued and the defect is not cured forthwith.

SEC. 14. Proceedings where property claimed by third persons.— If property taken be claimed by any person other than the party against whom attachment had been issued or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the officer while the latter has possession of the property, and a copy thereof upon the attaching creditor, the officer shall not be bound to keep the property under the attachment, unless the attaching creditor or his agent, on demand of said officer, secures him against such claim by a bond in a sum not greater than the value of the property attached. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. The officer shall not be liable for damages, for the taking or keep­ing of such property, to any such third-party claimant, unless such a claim is so made and the action upon the bond brought within one hundred and twenty (120) days from the date of the filing of said bond. But nothing herein contained shall prevent such third person from vindicating his claim to the property by proper action. However, when the person in whose behalf the writ of attachment was issued, is the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or attaching officer is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

Sec. 15. Satisfaction of judgment out of property attached; return of officer.— If judgment be recovered by the attaching creditor and execution issue thereon, the sheriff or other proper officer may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose, in the following manner: (a) By paying to the judgment creditor the proceeds of all sales of perishable or other property sold in pursuance of the order of the judge, or so much as shall be necessary to satisfy the judgment; (b) If any balance remain due, by selling so much of the property, real or personal, as may be necessary o satisfy the balance, if enough for that purpose remain in the officer’s hands, or in those of the clerk of the court; (c) By collecting from all persons having in their possession credits belonging to the judgment debtor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment creditor. The officer shall forthwith make return in writing to the court of his proceedings under this section.

Sec. 16. Balance due collected upon an execution; excess delivered to judgment debtor.— If after realizing upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds to the extinguishment of the judgment, less the expenses of proceedings upon the judgment, any balance shall remain due, the officer must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the officer, upon reasonable demand, must return to the judgment debtor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment.

Sec. 17. When execution returned unsatisfied, recovery had upon bond.— If the execution be returned unsatisfied in whole or in part, the surety or sureties on any counter-bond given pursuant to the provisions of this rule to secure the payment of the judgment shall become charged on such counter-bond, and bound to pay to the judgment creditor upon demand, the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action.

Sec. 18. Disposition of money deposited.— Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching creditor, and after satisfying the judgment the balance shall be refunded to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee.

Sec. 19. Disposition of attached property where judgment is for party against whom attachment was issued.— If judgment be rendered against the attaching creditor, ill the proceeds of sales and money collected or received by the sheriff, clerk, or other proper officer under the order of attachment, and all property attached remaining in any such officer’s hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged.

Sec. 20. Claim for damages on account of illegal attachment.— If the judgment on the action be in favor of the party against whom attachment was issued, he may recover, upon the bond given or deposit made by the attaching creditor, any damages resulting from the attachment. Such damages may be awarded only upon application and after proper hearing, and shall be included in the final judgment. The application must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching creditor and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages sustained during the pendency of the appeal by filing an application with notice to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court.

Rule 58 PRELIMINARY INJUNCTION

Section 1. Preliminary injunction defined; classes. — A preliminary injunction is an order granted at any of an action prior to the final judgment, requiring a person to refrain from a particular act. It may also the performance of a particular act, in which case it shall be known as a preliminary mandatorv injection.

Sec. 2. Who may grant preliminary injunction.— A preliminary injunction may be granted by the judge of any court in which the action is pending, or by a Justice of the Court of Appeals or of the Supreme Court. It may also be granted by the judge of a Court of First Instance in any action pending in an inferior court within his district.

Sec. 3. Grounds for issuance of preliminary injunction.— A preliminary injunction may be granted at any time after the commencement of the action and before judgment, when it is established: That the plaintiff is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the acts complained of, or in the performance of an act or acts, either for a limited period or perpetually; That the commission or continuance of some act complained of during the litigation or the non-performance thereof would probably work injustice to the plaintiff; or That the defendant is doing, threatens, or is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual.

Sec. 4. Verified complaint and bond for preliminary injunction.— A preliminary injunction may be granted only when: (a) The complaint in the action is verified, and shows facts entitling the plaintiff to the relief demanded; and (b) The plaintiff files with the clerk or judge of the court in which the action is pending a bond executed to the party enjoined, in an amount to he fixed by the court, to the effect that the plaintiff will pay to such party all damages which he may sustain by reason of the injunction if the court should finally decide that the plaintiff was not entitled thereto.

Sec. 5. Preliminary injunction not granted without notice; exception.— No preliminary injunction shall granted without notice to the defendant unless it shall appear from facts shown by affidavits or by the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice. The judge to whom the application for preliminary injunction was made, must cause an order to be served on the defendant, requiring him to show cause, at a specified time and place, why the injunction should not be granted.

Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction.— The injunction may be refused, or, if granted ex parte, may be dissolved, upon the insufficiency of the complaint as shown by the complaint itself, with or without notice to the adverse party. It may also be refused or dissolved on other grounds upon affidavits on the part of the defendant which may be opposed by the plaintiff also by affidavits. It may further be refused or, if granted, may be dissolved, if it appears after hearing that although the plaintiff is entitled to the injunction, the issuance or continuance thereof, as the case may be, would cause great damage to the defendant while the plaintiff can be fully compensated for such damages as he may suffer, and the defendant files a bond in an amount fixed by the judge conditioned that he will pay all damages which the plaintiff may suffer by the refusal or the dissolution of the injunction. If it appears that the extent of the preliminary injunction granted is too great, it must be modified.

Sec. 7. Order.— After hearing on the merits the court may grant or refuse, continue, modify or dissolve the injunction as justice may require.

Sec. 8. Service of copies of bonds; effect of disapproval of same.— The party filing a bond in accordance with the provisions of this rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the plaintiff’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be dissolved. If the defendant’s bond is found to be insufficient in amount, or the surety or sureties thereon fail to justify and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be.

Sec. 9. Judgment to include damages against party and sureties.— Upon the trial the amount of damages to be awarded to the plaintiff, or to the defendant, as the case may be, upon the bond of the other party, shall be claimed, ascertained, and awarded under the same procedure as prescribed in section 20 of Rule 57.

Sec. 10. When final injunction granted.— If upon the trial of the action it appears that the plaintiff is entitled to have the act complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the defendant from the commission or continuance of the act or confirming the preliminary mandatory injunction.

Rule 59 RECEIVERS

Section 1. When and by whom receiver appointed.— One or more receivers of the property, real or personal, which is the subject of the action, may be appointed by the judge of the Court of First Instance in which the action is pending, or by a Justice of the Court of Appeals or of the Supreme Court, in the following cases: (a) When a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights; (b) When it appears from the complaint or answer, and such other proof as the judge may require, that the party applying for the appointment of receiver has an interest in the property or fund which is the subject of the action, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to guard and preserve it; (c) When it appears in an action by the mortgagee for the foreclosure of a mortgage that 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 so stipulated in the contract of mortgage; (d) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment debtor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; (e) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

Sec. 2. Creditor or stockholder may apply for receiver for corporation.— When a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights, a receiver may be appointed on the complaint of a creditor, stockholder, or member of the corporation.

Sec. 3. Bond on appointment of receiver ex parts. — If a receiver be appointed upon an ex parte application, the court, before making the order, may require the person applying for such appointment to file a bond executed to the party against whom the application is presented in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such Sec 4. Denial of application or discharge of receiver on defendant’s bond.— The application for the appointment of a receiver may be denied, or the receiver already appointed may be discharged, when the party opposing the appointment makes it appear by affidavits, that such appointment was secured without sufficient cause; the adverse party may oppose the affidavits thus presented by counter-affidavits. The application may also be denied, or the receiver discharged, when the party opposing the appointment files a bond executed to the applicant in an amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in the application as ground for such appointment.

Sec. 5. Oath and bond, of receiver.— Before entering upon his duties, the receiver must be sworn to perform them faithfully, and must file a bond, executed to such person and in such sum as the court or judge may direct, to the effect that he will faithfully discharge the duties of receiver in the action and obey the orders of the court therein.

Sec. 6. Service of copies of bonds; effect of disapproval of same.— The person filing a bond in accordance with the provisions of this rule shall forthwith serve a copy of such bond on each interested party, who may except to the sufficiency of the bond, or of the surety or sureties thereon, as in other cases. If either the applicant’s or the receiver’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the application shall be denied, or the receiver discharged, as the case may be. If the bond of the party opposing the appointment of the receiver is found to be insufficient in amount or the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be appointed or re-appointed, as the case may be.

Sec. 7. General powers of receiver.— Subject to the control of the court in which the action is pending, a receiver shall have power to bring and defend, as such, actions in his own name; to take and keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is receiver; to compound for and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the court may authorize. But funds in the hands of a receiver may be invested at interest only by order of the court made upon the written consent of all the parties to the action.

Sec. 8. Termination of receivership; compensation of receiver.— Whenever the court, of its own motion or on that of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his hands to the persons adjudged entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires.

Sec. 9. Judgment to include recovery against sureties.— The amount, if any, to be awarded to either party upon any bond filed by the other in accordance with the provisions of this rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57.

Rule 60 DELIVERY OF PERSONAL PROPERTY

SECTION 1. Application.— Whenever the complaint in an action prays for the recovery of possession of personal property, the plaintiff may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided.

Sec. 2. Affidavit and bond.— Upon applying for such order the plaintiff must show by his own affidavit or that of some other person who personally knows the facts: (a) That the plaintiff is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) That the property is wrongfully detained by the defendant, alleging the cause of detention thereof according to his best knowledge, information, and belief; (c) That it has not been taken for a tax assessment or fine pursuant to law, or seized under an execution, or an attachment against the property of the plaintiff, or, if so seized, that it is exempt from such seizure; and (d) The actual value of the property. The plaintiff must also give a bond, executed to the defendant in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the defendant if the return thereof be adjudged, and for the payment to the defendant of such sum as he may recover from the plaintiff in the action.

Sec. 3. Order.— Upon the filing of such affidavit and bond with the clerk or judge of the court in which the action is pending, the judge of such court shall issue an order describing the personal property alleged to be wrongfully detained, and requiring the sheriff or other proper officer of the court forthwith to take such property into his custody.

Sec. 4. Duty of the officer.— Upon receiving such order the officer must serve a copy thereof on the defendant together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the defendant or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or inclosure, the officer must publicly demand its delivery, and if it be not delivered, he must cause the building or inclosure to be broken open and take the property into his possession. When the officer has taken property as herein provided, he must keep it in a secure place and shall be responsible for it and ultimately deliver it to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same.

Sec. 5. Return of property.— If the defendant objects to the sufficiency of the plaintiff’s bond, or of the surety or sureties thereon, he cannot require the return of the property as in this section provided; but if he does not so object, he may, at any time before the delivery of the property to the plaintiff, require the return thereof, by filing with the clerk or judge of the court a bond executed to the plaintiff, in double the value of the property as stated in the plaintiff’s affidavit, for the delivery of the property to the plaintiff, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the defendant, and by serving a copy of such bond on the plaintiff or his attorney.

Sec. 6. Disposition of property by officer.— If within. five (5) days after the taking of the property by the officer, the defendant does not object to the sufficiency of the bond, or of the surety or sureties thereon, or require the return of the property as provided in the last preceding section; or if the defendant so objects, and the plaintiff’s first or new bond is approved; or if the defendant so requires, and his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the Plaintiff. If for any reason the property is not delivered to the plaintiff, the officer must return it to the defendant.

Sec. 7. Third-party claim.— If the property taken be claimed by any other person than the defendant or his agent, and such person makes an affidavit of his thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer while he has possession of the property, and a copy thereof upon the plaintiff, the officer is not bound to keep the property or deliver it to the plaintiff, unless the plaintiff or his agent, on demand of the officer, indemnifies him against such claim by a bond in a sum not greater than the value of the property, and in case of disagreement as to such value the same shall be decided by the court issuing the order. The officer is not liable for damages, for the taking or keeping of such property, to any other person than the defendant or his agent, unless such a claim is so made and the action upon the bond brought within one hundred and twenty (120) days from the date of the filing of said bond. But nothing herein contained shall prevent such third person from vindicating his claim to the property by any proper action. However, when the plaintiff, or the person in whose behalf the order of delivery was issued, is the Republic of the Philippines, or any officer duly representing it, the filing of bond shall not be required, and in case the sheriff or the officer executing the order is sued for damages as a result of such execution, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

Sec. 8. Return of papers.—The officer must file the order, with his proceedings indorsed thereon, with the clerk of the court within twenty (20) days after taking the property mentioned therein.

Sec. 9. Judgment.—After a trial of the issues the court shall find in whom is the right of possession and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for the value in case delivery cannot be made, and also for such damages as either party may prove, and for costs. Sec. 10. Judgment to include recovery against sureties.— The amount, if any, to be awarded to either party upon any bond filed by the other in accordance with the provisions of this rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57.

Rule 61 SUPPORT PENDENTE LITE

Section 1. Application.— The plaintiff, at the commence­ment of the proper action, or at any time afterwards but prior to final judgment, may file an application for support pendente lite, stating the grounds for the claim and the financial conditions of both parties, and shall be accompanied by affidavits, depositions or other authentic documents in support thereof.

Sec. 2. Notice.—Notice of the application shall be served upon the adverse party who shall have three (3) days to answer, unless a different period of time is fixed by the court.

Sec. 3. Answer.—The answer shall be in writing and accompanied by affidavits, depositions or other authentic documents supporting the same.

Sec. 4. Hearing.—After the answer is filed, or after the expiration of the time for its filing, a day will be set for hearing. The facts in issue shall be proved in the same manner as is provided in connection with motions.

Sec. 5. Order.— The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and such other circumstances as may aid in the proper elucidation of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid, and the terms of payment. If the application is denied, the trial of the principal case on its merits shall be held as early as possible. Sec. 6. Enforcement of order.— If defendant fails to comply with an order granting support pendente lite, he must be ordered to show cause why he should not be punished for contempt. Should the defendant appear to have means to pay support and refuses to pay, either an order of execution may be issued or a penalty for contempt may be imposed, or both.

SPECIAL CIVIL ACTIONS

Rule 62 GENERAL RULE

Section 1. Preceding rides applicable in special civil actions.— The provisions of the preceding rules shall apply in special actions for interpleader, declaratory relief and similar remedies, certiorari, prohibition, mandamus, quo warranto, eminent domain, foreclosure of mortgage, partition, forcible entry and detainer, and contempt, which are not inconsistent with or may serve to supplement the provisions of the rules relating to such special civil actions.

Rule 63 INTERPLEADER

Section 1. Interpleader when proper.— Whenever conflicting claims upon the same subject matter are or may be made against a person, who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves.

Sec. 2. Order.— Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may command in such order that the subject matter be paid or transferred into court.

Sec. 3. Summons.— Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order.

Sec. 4. Other pleadings.— Each claimant shall file his answer setting forth his respective claim within fifteen (15) days from service of the summons upon him, serving copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these rules. If any claimant fails to plead within the time herein fixed, the court may enter judgment barring him from any claim in respect to the subject matter.

Sec. 5 Determination.— After the pleadings of the conflicting claimants have been filed the court shall proceed to determine their respective rights and adjudicate their several claims.

Sec. 6. Costs as lien.— The costs shall be a first lien or charge upon the subject matter of the proceedings unless the court shall otherwise order.

Rule 64 DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petition.— Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof, bring an action to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this rule.

Sec. 2. Parties.— All persons shall be made parties who have or claim any interest which would be affected by the declaration; and no declaration shall, except as otherwise provided in these rules, prejudice the rights of Persons not parties to the action.

Sec. 3. Notice on Solicitor General.— In any action which involves the validity of a statute, or executive order or regulation, the Solicitor General shall be notified by the party attacking the statute, executive order or regulation, and shall be entitled to be heard upon such question.

Sec. 4. Municipal or city ordinance.— In any action involving the validity of a municipal or city ordinance the provincial or city fiscal or attorney shall be similarly notified and entitled to be heard; and if the ordinance is alleged to be unconstitutional the Solicitor General shall also be notified and entitled to be heard.

Sec. 5. Discretionary.— Except in actions falling under paragraph 2 of section 1 of this rule, the court may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration, or construction is not necessary and proper at the time under all the circumstances.

Sec. 6. Conversion into ordinary action.— If before the final termination of the case, a breach or violation of an instrument, or a statute, executive order or regulation, or ordinance, should take place, the action may thereupon be converted into an ordinary action, and parties allowed to file such pleadings as may be necessary or proper.

Rule 65 CERTIORARI, PROHIBITION AND MANDAMUS

Section 1. Petition for certiorari.— When any tribunal, board, or officer exercising judicial functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or officer. The petition shall be accompanied by a certified true copy of the judgment or order subject thereof, together with copies of all pleadings and documents relevant and pertinent thereto.

Sec. 2. Petition for prohibition.— When the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein. The petition shall be accompanied by a certified true copy of the judgment or order subject thereof, together with copies of all pleadings and documents relevant and pertinent thereto.

Sec. 3. Petition for mandamus.— When any tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.

Sec. 4. Where petition filed.— The petition may be filed in the Supreme Court, or, if it relates to the acts or omissions of an inferior court, in a Court of First Instance having jurisdiction thereof. It may also be filed in the Court of Appeals if it is in aid of its appellate jurisdiction. Petitions for certiorari under Rules 43, 44 and 45 shall be filed with the Supreme Court.

Sec. 5. Defendants and costs in certain cases.— When the petition filed relates to the acts or omissions of a court or judge, the petitioner shall join, as parties defendant with such court or judge, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such person or persons to appear and defend, both in his or their own behalf and in behalf of the court or judge affected by the proceedings, and costs awarded in such proceedings in favor of the petitioner shall be against the person or persons in interest only, and not against the court or judge.

Sec. 6. Order to answer.—If the petition is sufficient in form and substance to justify such process, the court in which it is filed, or a judge thereof, shall issue an order requiring the defendant or defendants to answer the petition within ten (10) days from the receipt of a copy thereof. Such order shall be served on the defendants in such manner as the court may direct, together with a copy of the petition, and to that effect the petitioner shall file sufficient copies thereof.

Sec. 7. Expediting proceedings. Preliminary injunction.— The court in which the petition is filed, or a judge thereof, may make orders expediting the proceedings, and may also grant a preliminary injunction for the preservation of the rights of the parties pending such proceedings.

Sec. 8. Proceedings after answer is filed. — Once the answer is filed, or the time for its filing has expired, the court may order the proceedings complained of to be forthwith certified up for review and shall hear the case, and if after such hearing the court finds that the allegations of the petition are true, it shall render judgment for such of the relief prayed for as the petitioner is entitled to, with or without costs, as justice requires.

Sec. 9. Service and enforcement of order or judgment.— A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the tribunal, corporation, board, officer, or person concerned in such manner as the court may direct, and disobedience thereof punished as for contempt. An execution may issue as in other cases for any damages or costs awarded.

Rule 66 QUO WARRANTO

Section 1. Action by Government against individuals. — An action for the usurpation of office or franchise may be brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, or a franchise, or an office in a corporation created by authority of law; (b) A public officer who does or suffers an act which, by the provisions of law, works a forfeiture of his office; (c) An association of persons who act as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

Sec. 2. Like actions against corporations.— A like action may be brought against a corporation: (a) When it has offended against a provision of an Act for its creation or renewal; (b) When it has forfeited its privileges and franchises by nonuser; (c) When it has committed or omitted an act which amounts to a surrender of its corporate rights, privileges, or franchises; (d) When it has misused a right, privilege, or franchise conferred upon it by law, or when it has exercised a right, privilege, or franchise in contravention of law.

Sec. 3. When Solicitor General or fiscal must commence action.— The Solicitor General or a fiscal, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the last two preceding sections can be established by proof, must commence such action,

Sec. 4. When Solicitor General or fiscal may commence action with permission of court. — The Solicitor General or fiscal may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action to be given to him by the person at whose request and upon whose relation the same is brought.

Sec. 5. When hearing had on application for permission to commence action.—Upon application for permission to commence such action in accordance with the last preceding section, the court may direct that notice be given to the defendant so that he may be heard in opposition thereto; and if permission is granted, entry thereof shall be made on the docket, or the fact shall be noted by the judge on the complaint, which shall then be filed.

Sec. 6. When an individual may commence such an action.—A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name.

Sec. 7. What complaint for usurpation to set forth, and who may be made parties.—When the action is against a person for usurping an office, position or franchise, the complaint shall set forth the name of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the defendant is unlawfully in possession thereof. All persons who claim to be entitled to the office, position or franchise may be made parties, and their respective rights to such office, position or franchise determined, in the same action.

Sec. 8. Venue.— An action under the last preceding’ seven sections can be brought only in the Supreme Court or in the Court of First Instance of the province in which the defendant, or one of the defendants, resides, or, when the defendant is a corporation, in the province in which it is domiciled or has a place of business; but when the Solicitor General of the Philippines commences the action, it may be brought in a Court of First Instance in the City of Manila or in the Supreme Court.

Sec. 9. Time for pleadings and proceedings may be shortened. Action given precedence.— The court may shorten the time provided by these rules for filing pleadings and for all other proceedings in the action, so as to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil business pending in the court.

Sec. 10. Judgment where usurpation found.— When the defendant is found guilty of usurping, intruding into, or unlawfully holding or exercising an office, position, right, privilege, or franchise, judgment shall be rendered that such defendant be ousted and altogether excluded therefrom, and that the plaintiff or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the office, position, right, privilege, or franchise of all the parties to the action as justice requires.

Sec. 11. Judgment where director of corporation was illegally elected. Order and notice of new election. Enforcement of order.— When the action is brought against a director of a corporation, and the court finds that at his election either illegal votes were received or legal votes were rejected, or both, sufficient to change the result, judgment may be rendered that the defendant be ousted, and of induction in favor of the person who was entitled to have been declared elected at such election; or, in such case, the court may, in its discretion, order a new election to be held at a time and place and by Judges of election appointed by the court. Notice of such election and naming of the judges shall be given for the time and in the manner provided by law for notice of elections of directors of such corporations. The order shall become obligatory upon the corporation and its officers when a duly certified copy thereof is served upon its secretary personally, or is left at its principal place business in the Philippines, and may be enforced by the court in any manner it deems necessary.

Sec. 12. Judgment against corporation for dissolution or ouster.— When it is found that a corporation has, by an act done or omitted, surrendered, or forfeited its corporate rights, privileges, and franchises, or has not used the same during the term of five (5) years, judgment shall be entered that it be ousted and excluded therefrom and that it be dissolved. When it is found that the corporation has offended in a matter or manner which does not by law work as a surrender or forfeiture, judgment shall be rendered that it be ousted from the continuance of such offense and the exercise of any power usurped by it.

Sec. 13. Appointment of receiver token corporation dissolved.—The court rendering a judgment dissolving a corporation shall appoint a receiver of all its assets who shall proceed to administer the same in accordance with the provisions of Rule 59.

Sec. 14. Liability of officer neglecting to deliver property of corporation to receiver.— An officer of such corporation who refuses or neglects, upon demand, to deliver over to the receiver all money, property, books, deeds, notes, bills, obligations, and papers of every description within his power or control, belonging to the corporation, or in anywise necessary for the settlement of its affairs, or the discharge of its debts and liabilities, may be punished for contempt as having disobeyed a lawful order of the court, and shall be liable to the receiver for the value of all money or other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the stockholders and creditors of the corporation, or any of them, in consequence of such neglect or refusal.

Sec. 15. Rights of persons adjudged entitled to office Delivery of books and papers. Damages.—If judgment be rendered in favor of the person averred in the complaint to be entitled to the office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the defendant all the books and papers in the defendant’s custody or control appertaining to the office to which the judgment relates. If the defendant refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against such defendant to recover the damages sustained by such person by reason of the usurpation.

Sec. 16. Limitations.— Nothing contained in this rule shall be construed to authorize an action against a corporation for forfeiture of charter unless the same be commenced within five (5) years after the act complained of was done or committed; nor to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the plaintiff to hold such office or position, arose; nor to authorize an action for damages in accordance with the provisions of the last preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the plaintiff’s right to the office in question.

Sec. 17. Judgment for costs.— In an action brought in accordance with the provisions of this rule, the court may render judgment for costs against either the plaintiff, the relator, the defendant, the directors, or other officers of a defendant corporation, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires.

Rule 67 EMINENT DOMAIN

Section 1. The complaint.— The right of eminent domain shall be exercised by the filing of a complaint which shall state with certainty the right and purpose of condemnation, describe the real or personal property sought to be condemned, and join as defendants all person owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the interest of each defendant separately. If the title to any property sought to be condemned appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect may be made in the complaint.

Sec. 2. Entry of plaintiff upon depositing value with National or Provincial Treasurer.— Upon the filing of the complaint or at any time thereafter the plaintiff shall have the right to take or enter upon the possession of the real or personal property involved if he deposits with the National or Provincial Treasurer its value, as provisionally and promptly ascertained and fixed by the court having jurisdiction of the proceedings, to be held by such treasurer subject to the orders and final disposition of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a depository of the Republic of the Philippines payable on demand to the National or Provincial Treasurer, as the case may be, in the amount directed by the court to be deposited. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved.

Sec. 3. Defenses and objections.— Within the time specified in the summons, each defendant, in lieu of an answer, shall present in a single motion to dismiss or for other appropriate relief, all of his objections and defenses to the right of the plaintiff to take his property for the use or purpose specified in the complaint. All such objections and defenses not so presented are waived. A copy of the motion shall be served on the plaintiff s attorney of record and filed with the court with the proof of service.

Sec. 4. Order of condemnation.— When such a motion is overruled or when any party fails to defend as required by this rule, the court may enter an order of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint. After the entry of such an order no objection to the exercise of the right of condemnation shall be filed or heard and the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court fixes.

Sec. 5. Ascertainment of compensation.— Upon the entry of the order of condemnation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report is to be filed with the court.

Sec. 6. Proceedings by commissioners.— Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be condemned and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the cause. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation, or the carrying on of the business of the corporation or Person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken.

Sec. 7. Report by commissioners and judgment thereupon.— The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be condemned, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual to bind the property or the parties until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire.

Sec. 8. Action upon commissioners report.— Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners, or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of condemnation, and to the defendant just compensation for the property so taken.

Sec. 9. Uncertain ownership. Conflicting claims.— If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the clerk of the court for the benefit of the persons adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the clerk before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made.

Sec. 10. Rights of plaintiff after judgment and payment.— Upon payment by the plaintiff to the defendant of compensation as fixed by the judgment, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property condemned and to appropriate it to the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his attorney absent themselves from the court, or decline to receive the amount tendered, or if the court shall have ordered the compensation paid to the clerk, the payment may be made with like effect to the clerk of the court for the defendant or the person ultimately adjudged entitled thereto, and the clerk shall receive such payment and be responsible on his bond therefor.

Sec. 11. Entry not delayed by appeal. Effect of reversal.— The right of the plaintiff to enter upon the property of the defendant and appropriate the same to public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of condemnation, the case shall be remanded to the Court of First Instance with mandate that the defendant be replaced in possession of the property and that he recover the damages sustained by reason of the possession taken by the Plaintiff.

Sec. 12. Costs, by whom paid.—The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner.

Sec. 13. Recording judgment, and its effect.— The judgment entered in condemnation proceedings shall state definitely, by an adequate description, the particular property or interest therein condemned, and the nature of the public use or purpose for which it is condemned. When real estate is condemned, a certified copy of such judgment shall be recorded in the office of the registrar of deeds for the province in which the property is situated, and its effect shall be to vest title in the real estate so described in the plaintiff for such public use or purpose.

Sec. 14. Power of guardian in such proceedings.— The guardian or guardian ad litem of a minor or person of unsound mind, or of a person declared judicially to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the condemnation for public use or purpose of property belonging to such minor or person of unsound mind, or person declared judicially to be incompetent, which such minor or person of unsound mind, or person declared judicially to be incompetent could do in such proceedings if he were of age or of sound mind or competent.

Rule 68 FORECLOSURE OF MORTGAGE

Section 1. Complaint in action for foreclosure.— In an action for the foreclosure of a mortgage or other incumbrance upon real estate, the complaint shall set forth the date and due execution of the mortgage, its assignments, if any, the names and residences of the mortgagor and mortgagee, a description of the mortgaged premises, statement of the date of the note or other obligation secured by the mortgage, the amount claimed to be unpaid thereon, and the names and residences of all persons having or claiming an interest in the premises subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.

Sec. 2. Judgment on foreclosure for payment or sale.— If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and costs, and shall render judgment for the sum so found due and order that the same be paid into court within a period of not less than ninety (90) days from the date of the service of such order, and that in default of such payment the property be sold to realize the mortgage debt and costs.

Sec. 3. Sale of mortgaged property; effect.— When the defendant, after being directed to do so as provided in the last preceding section, fails to pay the principal, interest, and costs at the time directed in the order, the court shall order the property to be sold in the manner and under the regulations that govern sales of real estate under execution. Such sale shall not affect the rights of persons holding prior incumbrances upon the property or a part thereof, and when confirmed by an order of the court, it shall operate to divest the rights of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.

Sec. 4. Disposition of proceeds of sale.—The money realized from the sale of mortgaged property under the regulations hereinbefore prescribed shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off such mortgage or other incumbrance, the same shall be paid to junior incumbrancers in the order of their priority, to be ascertained by the court, or if there be no such incumbrancers or there be a balance or residue after payment of such incumbrancers, then to the mortgagor or his agent, or to the person entitled to it.

Sec. 5. How sale to proceed in case the debt is not all due.— If the debt for which the mortgage or incumbrance was held is not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease; and afterwards, as often as more becomes due for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without injury to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper.

Sec. 6. Judgment for balance after sale of property.— Upon the sale of any real property, under an order for a sale to satisfy a mortgage or other incumbrance thereon, if there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise the plaintiff shall be entitled to execution at such time as the balance remaining would have become due by the terms of the original contract, which time shall be stated in the judgment.

Sec. 7. Final record.— The final record in the action shall set forth, in brief, the petition and other pleadings, judgment and orders, the proceedings under the order of sale, the order confirming the sale, the name of the purchaser, with a description of the property by him purchased, and the certificate of redemption, if any, or the final deed of conveyance executed in favor of the purchaser.

Sec. 8. Judicial foreclosure of chattel mortgage. — The provisions of this rule shall be applicable to the judicial foreclosure of chattel mortgages, except that the sale of the property mortgaged shall be held as provided by the Chattel Mortgage Law and without prejudice to the provisions of Articles 1484, 1485 and 1486 of the Civil Code.

RULE 69 PARTITION

Section 1. Complaint in action for partition of real estate.— A person having the right to compel the partition of real estate may do so as in this rule prescribed, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all the other persons interested in the property.

Sec. 2. Order for partition, and partition by agreement thereunder.— If upon trial the court find that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, Make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the office of the registrar of deeds for the province in which the property is situated.

Sec. 3. Commissioners to make partition when parties fail to agree.— If the parties are unable to agree upon the partition, the court shall by order appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court in such order shall direct.

Sec. 4. Oath and duties of commissioners.— Before making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart the same to the several parties in such lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof.

Sec. 5. Assignment or sale of real estate by commissioners.— When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without great prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such sum or sums of money as the commissioners deem equitable, unless one of the parties interested asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale, and the commissioners shall sell the same accordingly.

Sec. 6. Report of commissioners. Proceedings not binding until confirmed.— The commissioners shall make full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. None of the proceedings had before the commissioners shall be effectual to pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment in accordance with its recommendations.

Sec. 7. Action of the court upon commissioners report.— Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, upon hearing, accept the report and render judgment in accordance therewith; or, for cause shown, recommit the same to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof.

Sec. 8. Accounting for rent and profits in action for partition.— In an action for partition in accordance with the provisions of this rule, one party may recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits.

Sec. 9. Power of guardian in such proceedings.— The guardian or guardian ad litem of a minor or person of unsound mind or person declared judicially to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person of unsound mind or person declared judicially to be incompetent could do in partition proceedings if he were of age or of sound mind or competent.

Sec. 10. Costs and expenses to be taxed and collected.— The court shall equitably tax and apportion between the parties the costs and expenses which accrue in the action, including the compensation of the commissioners to make partition, having regard to the interests of the parties and execution may issue therefor as in other cases.

Sec. 11. The judgment and its effect. Copy to be recorded with registrar of deeds.— If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severally the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the office of the registrar of deeds of the province in which the real estate is situated, and the expense of such recording shall be taxed as a part of the costs of the action.

Sec. 12. Neither paramount rights nor amicable partition affected by this rule.— Nothing in this rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved in an action for partition by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made; nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action.

Sec. 13. Partition of personal property.— The provisions of this rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable.

RULE 70 FORCIBLE ENTRY AND DETAINER

Section 1. Who may institute proceedings, and when. — Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a landlord, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such landlord, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or w