Department of Agrarian Reform

SECTION 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.

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.

SECTION 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.

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

SECTION 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.

SECTION 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 case 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. cdt

SECTION 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.

SECTION 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. cdt

SECTION 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.

SECTION 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;

(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.

SECTION 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, or guardian ad litem.

SECTION 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. acd

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 11. Misjoinder and non-joinder of parties. — Misjoinder of parties is not granted 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 15. Association as defendants. — When two or more persons, associated in any business, transact such business 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 of 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.

SECTION 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 non-residents. — 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.

SECTION 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.

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

SECTION 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 "municipal courts" and "city courts."

SECTION 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.

SECTION 3. Date of filing of complaints. — 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.

SECTION 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 if 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 17. Summary procedure for money claim not exceeding two hundred pesos. — Where a claim does not exceed two hundred pesos (P200.00), 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. acd

SECTION 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.

SECTION 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; sections 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.

PROCEDURES 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.

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

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 9. Counterclaim 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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. cdt

SECTION 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.

SECTION 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.

SECTION 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. cdt

SECTION 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" 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.

SECTION 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.

SECTION 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.

SECTION 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 by the insufficiency of one or more of the alternative statements.

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

SECTION 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 part or the capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. cdta

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 2. Defense 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.

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

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 be 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 2. Time to answer when defendant is a 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.

SECTION 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 order admitting the 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.

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

SECTION 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.

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

SECTION 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 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 which the motion was directed or make such other order as it deems just. It may, upon motions, set aside the order, or modify it in the interest of justice.

SECTION 2. Intervention. — A person may, before or during a trial, be permitted by the court, in its discretion, to intervene in 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 be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case.

SECTION 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.

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

SECTION 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.

SECTION 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 the mail to the sender after ten (10) days if undelivered.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 by the judge of the court issuing the summons.

SECTION 6. Return. — When service has been completed, the 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 14. Service upon private foreign corporations. — If the defendant is a foreign corporation, or a non-resident 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.

SECTION 15. Service upon public corporations. — 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.

SECTION 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, be 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

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

SECTION 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 the 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 encumbrances 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 of 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.

SECTION 2. Motion must be in writing. — All motions shall be 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.

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

SECTION 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 affidavit 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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;

(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 the 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 4. Dismissal of counterclaim, cross-claim, 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. cdtai

SECTION 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.

SECTION 3. Relief from order of default. — 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.

SECTION 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 the 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.

SECTION 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.

SECTION 6. No defaults in actions for annulments of marriage or of 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. — When 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-Trial

SECTION 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;

(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.

SECTION 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.

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

SECTION 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.

SECTION 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.

SECTION 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;

(d) Future support;

(e) The jurisdiction of courts;

(f) Future legitime;

(g) Habeas corpus and election cases.

SECTION 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.

SECTION 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.

SECTION 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. cdtai

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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. cdtai

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 person 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.

SECTION 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 be made so as to allow the witness a reasonable time for preparation 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 also be tendered.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 cost 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 or 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.

SECTION 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 afterwards 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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)."

SECTION 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.

SECTION 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.

SECTION 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 is served, the court may for cause shown enlarge or shorten the time.

SECTION 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 take any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

SECTION 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 the conduct of any party, and any other objection to the proceeding, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objection. 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.

SECTION 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.

SECTION 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.

SECTION 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.

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

SECTION 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.

SECTION 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.

SECTION 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 such other party the amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney's fees.

SECTION 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.

SECTION 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 to 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.

SECTION 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.

SECTION 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.

SECTION 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 the 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.

SECTION 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.

SECTION 3. Objections to interrogatories. — Objections to any interrogatories may be presented to the court within (10) days after service thereof, with notice as in the 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.

SECTION 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.

SECTION 5. Scope and use of interrogatories. — Interrogatories may relate to any matter 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.

SECTION 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.

SECTION 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.

SECTION 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 Persons

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 a physical or mental examination by a physician.

SECTION 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.

SECTION 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 causing the 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.

SECTION 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 section 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.

SECTION 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.

SECTION 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 documents or other things 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 thereof, 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.

SECTION 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.

SECTION 5. Failure of party to attend or serve answers. — If a party or an officer or managing agent of a party willfully 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 party 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.

SECTION 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 counsels 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 counsels, 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.

SECTION 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.

SECTION 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

Consolidation 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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;i

(b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect;

(c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or of carrying a judgment or order into effect.

SECTION 3. Order of reference, powers of the commissioner. — When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do 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.

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

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 the commissioner, may apply to the court for an order requiring the commissioner to speed up the proceedings and to make his report.

SECTION 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.

SECTION 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.

SECTION 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.

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

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

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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 right 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.

SECTION 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.

SECTION 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 determined their ultimate rights and obligations.

SECTION 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.

SECTION 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 matter 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 6. Partial new trial. — 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.

SECTION 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.i

SECTION 2. Petition of 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 file a petition in such court and in the same cause praying that the judgment, order or proceeding be set aside.

SECTION 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.

SECTION 4. Order to file an answer. — If the petition is sufficient in form and substance to justify relief, the court in which it is field, 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.

SECTION 5. Preliminary injunction pending proceedings. — The court in which the petition is filed, or a judge thereof, may 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 to the adverse party, conditioned that if the petition is dismissed or the petitioner failed 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.

SECTION 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 shall stand as if the judgment, order or other proceeding set aside had never been issued or taken.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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. cdtai

SECTION 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.

SECTION 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) In 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.

SECTION 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 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 sufficient personal property cannot be found, then out of the real property.

SECTION 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. cdtai

SECTION 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 effects 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 and effect of a conveyance executed in due form of law.

SECTION 11. Return of writ of execution. — The writ of execution may be made returnable, to the clerk or judge of 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.

SECTION 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 values;

(h) On 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.

SECTION 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.

SECTION 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 to remove the same within a reasonable time fixed by the court.

SECTION 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.

SECTION 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 encumbrances then existing.

SECTION 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 makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy, and a copy thereof upon the judgment 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.

SECTION 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 (P400.00), 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 languages, then a like publication for a like period shall be made in one newspaper published in the English language, and in one published in Spanish language.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 adjourn the sale from day to day, if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice.

SECTION 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 rights which the debtor had in such property on the day the execution or attachment was levied.

SECTION 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 the 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 rights which the debtor had in such property on the day that the execution or attachment was levied.

SECTION 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;

(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.

SECTION 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 section 25, 26, and 27 of this rule, shall make express mention of the existence of such third-party claim.

SECTION 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.

SECTION 30. Time and manner of, and amounts payable on, successive redemptions. — Notice to be given and filed. 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.

SECTION 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 redeems, 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 to 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.

SECTION 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 redeems 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;

SECTION 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.

SECTION 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 amount 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 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.

SECTION 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 has 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.

SECTION 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 party 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 or 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.

SECTION 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.

SECTION 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 satisfaction to be made without such admission. cdtai

SECTION 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.

SECTION 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 title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate;

(b) In other cases the judgment or 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 6. Duty of clerk of the Court 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.

SECTION 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 filed in the justice of the peace or municipal court shall be considered reproduced in the Court of First Instance.

SECTION 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 take in the action.

SECTION 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 has 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.

SECTION 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.

SECTION 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 from Courts of First Instance, The Social Security Commission and The Court of Agrarian Relations to the 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.

SECTION 2. Judgment 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.

SECTION 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.

SECTION 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.

SECTION 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 (P120.00) 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 paupers' appeals.

SECTION 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.

SECTION 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.

SECTION 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 transcript 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 23. Appeals from the Social Security Commission and the Court of Agrarian Relations. — The provisions of this rule shall apply to appeals from the Social Security Commission and the Court of Agrarian Relations to the Court of Appeals. In agrarian cases the original record of the case shall be transmitted in lieu of the record on appeal as in cases under Section 17 of this rule.

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.

SECTION 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 of 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. How appeal taken. — An party may appeal from a final order, ruling or decision of the Securities and Exchange Commission, Land Registration Commission, the Court of Agrarian Relations, the Social Security Commission, the Secretary of Labor under Section 7 of the Minimum Wage Law, Court of Industrial Relations, the Civil Aeronautics Board, Workmen's Compensation Commission and 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.

SECTION 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.

SECTION 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 the discretion of the court, also be reviewed upon proper showing that the findings of fact are not supported by substantial evidence.

SECTION 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.

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

SECTION 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.

SECTION 7. Deposit for costs. — If the petition is given due course the petitioner shall deposit the sum of eighty pesos (P80.00) 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.

SECTION 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, 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.

SECTION 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.

SECTION 10. Effect of appeal. — The appeal shall not stay the order, ruling or decision of the Securities and Exchange Commission, 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, the Patent Office, the Agricultural Inventions Board, the Court of Tax Appeals, and the General Auditing Office, shall 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.

SECTION 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. cda

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.

SECTION 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.

SECTION 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.

SECTION 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 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.

SECTION 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.

SECTION 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 court's discretion, indicate the character of reasons which will be considered:

(a) When the Court of Appeals has decided a question of 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.

SECTION 5. Deposit for costs. — If the petition is given due course, the petitioner shall deposit the sum of eighty pesos (P80.00) 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.

SECTION 2. Attorneys and guardians. — Attorneys and guardians 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. LLjur

SECTION 3. Order of transmittal of record. — If the record on appeal is not received by the Court 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.

SECTION 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.

SECTION 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 form 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 9. Clerk to notify parties of receipt of evidence. — Upon receipt of the transcript and exhibits, the clerk shall notify both parties that all the evidence, oral and documentary, is already attached to the record.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 16. Contents of appellant's brief . — The appellant'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 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 for its judgments;

(f) Under the heading "Argument," the appellant's arguments on each assignment or 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 order 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.

SECTION 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.

SECTION 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 questions 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."

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 counsels may, in the discretion of the court, be heard upon each side, but in the order herein provided.

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

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 be 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.

SECTION 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.

SECTION 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;

(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 his 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.

SECTION 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.

SECTION 3. Where appealed cases 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.

SECTION 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 clerk at the date of submission.

SECTION 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.

SECTION 3. Disposition of a cases. — 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.

SECTION 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.

SECTION 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 by the 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 counsels.

SECTION 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.

SECTION 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 52

Re-Hearing

SECTION 1. Motion for re-hearing. — A motion for a re-hearing or reconsideration shall be made ex parte and filed within fifteen (15) days from notice of the final order or judgment. No more than one motion for rehearing or reconsideration shall be filed without express leave of court. A second motion for reconsideration may be presented within fifteen (15) days from notice of the order or judgment deducting the time in which the first motion has been pending.

SECTION 2. Oral argument when motion granted. — If the court finds merit prima facie in the motion for re-hearing or reconsideration, the adverse party shall be given time to answer, after which the court, in its discretion, may set the case for oral argument.

SECTION 3. Stay. — A motion for re-hearing or reconsideration filed in time shall stay the final order or judgment sought to be re-examined.

RULE 53

New Trial

SECTION 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.

SECTION 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.

SECTION 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 Business

SECTION 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 en 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.

SECTION 2. Decision within term. — All cases submitted to a division of the Court of Appeals for 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 consideration, the Court of Appeals, sitting en banc, may, upon petition of the division concerned, grant an additional period not exceeding three (3) months for its disposition or termination.

SECTION 3. Quorum of the court. — Eleven Justices of the Court of Appeals shall constitute a quorum for its sessions en banc; 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 en 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 as well as in appealed cases, shall be the same as in the Court of Appeals, except as hereafter provided.

SECTION 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.

SECTION 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 appellants' brief.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 7. Extension of time. — 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.

SECTION 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.

SECTION 9. Calendar of hearing. — 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.

SECTION 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.

SECTION 11. Procedure if opinion is equally divided. — Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be re-heard, 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.

SECTION 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.

SECTION 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 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 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 in 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 the executor or administrator or other personal representative of the decedent with a copy of the order and notice that said interest is attached. A copy of said order of 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.

SECTION 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.

SECTION 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 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.

SECTION 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.

SECTION 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.

SECTION 12. Discharge of attachment upon giving counterbond. — 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 is 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.

SECTION 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 affidavit 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.

SECTION 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.

SECTION 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 to 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.

SECTION 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.

SECTION 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 form such surety or sureties after notice and summary hearing in the same action.

SECTION 18. Disposition of money deposited. — Where the party against whom attachment has 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.

SECTION 19. Disposition of attached property where judgment is for party against whom attachment was issued. — If judgment be rendered against the attaching creditor, all the proceeds of sales and money collected or received by 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.

SECTION 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 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 stage of an action prior to the final judgment, requiring a person to refrain from a particular act. It may also require the performance of a particular act, in which case it shall be known as a preliminary mandatory injunction.

SECTION 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.

SECTION 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;

(a) 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;

(b) 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

(c) 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.

SECTION 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 be 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.

SECTION 5. Preliminary injunction not granted without notice; exception. — No preliminary injunction shall be 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.

SECTION 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.

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

SECTION 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.

SECTION 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.

SECTION 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 or 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.

SECTION 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.

SECTION 3. Bond on appointment of receiver ex parte. — 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 damages.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 ad 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 person 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.

SECTION 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.

SECTION 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.

SECTION 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 party 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 6. Disposition of property by officer. — If within five (5) days after 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.

SECTION 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 title 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

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

SECTION 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.

SECTION 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.

SECTION 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 rules 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.

SECTION 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.

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

SECTION 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.

SECTION 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.

SECTION 6. Costs as lien. — The cost 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.

SECTION 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 in the rights of persons not parties to the action.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 in 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.

SECTION 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, or of a corporation, board, officer or person, 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.

Petition for certiorari under Rules 43, 44 and 45 shall be filed with the Supreme Court.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 non-user;

(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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 corporation. 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 of business in the Philippines, and may be enforced by the court in any manner it deems necessary.

SECTION 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 had 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.

SECTION 13. Appointment of receiver when 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 defendant all persons 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 name of 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.

SECTION 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.

SECTION 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.

SECTION 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 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 me 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 encumbrance 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, a statement of the date of the note or other obligation secured by the mortgaged, 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.

SECTION 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.

SECTION 3. Sale of mortgage 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 encumbrances 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.

SECTION 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 encumbrance, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment of such encumbrancers, then to the mortgagor or his agent, or to the person entitled to it.

SECTION 5. How sale to proceed in case the debt is not all due. — If the debt for which the mortgage or encumbrance 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.

SECTION 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 encumbrance 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 lots or parcels as will be most advantageous and 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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.

SECTION 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 severalty 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 estate 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 estates is situated, and the expense of such recording shall be taxed as a part of the costs of the action.

SECTION 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.

SECTION 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 withholding of possession, bring an action in the proper inferior court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. The complaint must be verified.

The provisions of this rule shall not apply to cases covered by the Agricultural Tenancy Act.

SECTION 2. Landlord to proceed against tenant only after demand. — No landlord, or his legal representative or assign, shall bring such action against a tenant for failure to pay rent due or to comply with the conditions of his lease, unless the tenant shall have failed to pay such rent or comply with such conditions for a period of fifteen (15) days, or five (5) days in the case of building, after demand therefor, made upon him personally, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no persons be found thereon.

SECTION 3. Preliminary injunction. — The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff.

A possessor deprived of his possession through forcible entry may within ten (10) days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof.

SECTION 4. Evidence of title, when admissible. — Evidence of title to the land or building may be received solely for the purpose of determining the character and extent of possession and damages for detention.

SECTION 5. When bond required on continuance. — No continuance shall be granted for a longer period than five (5) days on the application of the defendant unless he gives a bond to the adverse party conditioned for the payment, should judgment be rendered against the defendant, of the rent and damages that may accrue.

SECTION 6. Judgment. — If upon trial the court finds that the allegations of the complaint are not true, it shall render judgment for the defendant to recover his costs. If it finds them to be true, it shall render judgment in favor of the plaintiff for the restitution of the premises, for the sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, and for costs. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party, and award costs as justice requires.

SECTION 7. Judgment conclusive only on possession; not conclusive in actions involving title or ownership. — The judgment rendered in an action for forcible entry or detainer shall be effective with respect to the possession only and in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an action between the same parties respecting title to the land or building, nor shall it be held conclusive of the facts therein found in a case between the same parties upon a different cause of action not involving possession.

SECTION 8. Immediate execution of judgment. How to stay same. — If judgment is rendered against the defendant, execution shall issue immediately, unless an appeal has been perfected and the defendant to stay execution files a sufficient bond, approved by the justice of the peace or municipal court and executed to the plaintiff to enter the action in the Court of First Instance and to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as found by the judgment of the justice of the peace or municipal court to exist. In the absence of a contract, he shall deposit with the court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment, on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the justice of the peace or municipal court, with the other papers, to the clerk of the Court of First Instance to which the action is appealed.

All moneys so paid to the appellate court shall be deposited in the provincial or city treasury, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise. Should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court, upon motion of the plaintiff, of which the defendant shall have notice, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on its merits.

If the case is tried on its merits in the Court of First Instance, any money paid into court by the defendant for the purposes of stay of execution shall be disposed of in accordance with the provisions of the judgment of the Court of First Instance, and in any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the justice of the peace or municipal court, damages for such deprivation of possession may be allowed the defendant in the judgment of the Court of First Instance disposing of the appeal. The bond shall be transmitted by the justice of the peace or the municipal court, with the other papers, to the clerk of the Court of First Instance to which the action is appeared.

SECTION 9. Mandatory injunction in case of appeal. — Upon motion of the lessor, within ten (10) days from the perfection of the appeal to the Court of First Instance, the latter may issue a writ of preliminary mandatory injunction to restore the lessor in possession if the court is satisfied that the lessee's appeal is frivolous or dilatory, or that the appeal of the lessor is prima facie meritorious.

SECTION 10. Stay of execution on appeal to Court of Appeals or Supreme Court. — Where defendant appeals from a judgment of the Court of First Instance, execution of said judgment, with respect to the restoration of possession, shall not be stayed unless the appellant deposits the same amounts and within the periods referred to in section 8 of this rule to be disposed of in the same manner as therein provided.

RULE 71

Contempt

SECTION 1. Direct contempt punished summarily. — A person guilty of misbehavior in the presence of or so near a court or judge as to obstruct or interrupt the proceedings before the same, including disrespect toward the court or judge, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required so to do, may be summarily adjudged in contempt by such court or judge and punished by fine not exceeding two hundred pesos or imprisonment not exceeding ten (10) days, or both, if it be a superior court, or a judge thereof, or by fine not exceeding ten pesos or imprisonment not exceeding one (1) day, or both, if it be an inferior court.

SECTION 2. Appeal. — The person adjudged in contempt by an inferior court may appeal from the judgment to the Court of First Instance of the province, and, as in ordinary criminal cases, execution of the judgment shall be suspended pending the appeal upon such person filing a bond conditioned that he will abide by and perform the judgment should the appeal be decided against him. Judgment of superior courts on direct contempt shall not be appealable.

SECTION 3. Indirect contempts to be punished after charge and hearing. — After charge in writing has been filed, and an opportunity given to the accused to be heard by himself or counsel, a person guilty of any of the following acts may be punished for contempt:

(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, judgment, or command of a court, or injunction granted by a court or judge, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt under section 1 of this rule;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

(f) Failure to obey a subpoena duly serve;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him.

But nothing in this section shall be so construed as to prevent the court from issuing process to bring the accused party into court, or from holding him in custody pending such proceedings.

SECTION 4. Charge; where to be filed. — Where the contempt, under the preceding section, has been committed against a superior court or judge, or against an officer appointed by it, the charge may be filed with such superior court. Where such contempt has been committed against an inferior court or judge, the charge may be filed with the Court of First Instance of the province or city in which the inferior court is sitting; but the proceedings may also be instituted in such inferior court subject to appeal to the Court of First Instance of such province or city in the same manner as is provided in Section 2 of this rule. And where a contempt punishable under these rules has been committed against an administrative officer or any non-judicial person, committee, or other body, the charge may be filed with the Court of First Instance of the province or city in which the contempt has been committed.

SECTION 5. Hearing; release on bail. — If the hearing is not ordered to be had forthwith, the accused may be released from custody upon filing a bond, in an amount fixed by the court, for his appearance to answer the charge. Upon the day set for the hearing, the court shall proceed to investigate the charge and consider such answer or testimony as the accused may make or offer.

SECTION 6. Punishment if found guilty. — If the accused is thereupon adjudged guilty of contempt committed against a superior court or judge, he may be fined not exceeding one thousand pesos or imprisoned not more than six (6) months, or both; if adjudged guilty of contempt committed against an inferior court or judge, he may be fined not exceeding one hundred pesos or imprisoned not more than one (1) month, or both, and if the contempt consists in the violation of an injunction, he may also be ordered to make complete restitution to the party injured by such violation.

SECTION 7. Imprisonment until order obeyed. — When the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned by order of a superior court until he performs it.

SECTION 8. Proceeding when party released on bail fails to answer. — When an accused released on bail fails to appear upon the day fixed for the hearing, the court may issue another order of arrest or may order the bond for his appearance to be prosecuted, or both; and, if the bond be prosecuted, the measure of damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt was prosecuted, and the costs of the proceedings, and such recovery shall be for the benefit of the party injured. But if there is no aggrieved party, the bond shall be liable as in criminal cases.

SECTION 9. Court may release accused. — The court or judge who made the order imprisoning a person for contempt may discharge him from imprisonment when it appears that public interest will not suffer thereby.

SECTION 10. Review of judgment or order by Court of Appeals or Supreme Court; bond for stay. — The judgment or order of a Court of First Instance made in a case of contempt punished after written charge and hearing may be reviewed by the Court of Appeals or the Supreme Court, but execution of the judgment or order shall not be suspended until a bond is filed by the person in contempt, in an amount fixed by the Court of First Instance, conditioned that if the appeal be decided against him he will abide by and perform the judgment or order. The appeal may be taken as in criminal cases.

PART II

SPECIAL PROCEEDINGS

GENERAL PROVISION

RULE 72

Subject Matter and Applicability of General Rules

SECTION 1. Subject matter of special proceedings. — Rules of special proceedings are provided for in the following cases:

(a) Settlement of estate of deceased persons;

(b) Escheat;

(d) Trustees;

(e) Adoption;

(f) Rescission and revocation of adoption;

(g) Hospitalization of insane persons;

(h) Habeas corpus;

(i) Change of name;

(j) Voluntary dissolution of corporations;

(k) Judicial approval of voluntary recognition of minor natural children;

(l) Constitution of family home;

(m) Declaration of absence and death;

(n) Cancellation or correction of entries in the civil registry.

SECTION 2. Applicability of rules of civil actions. — In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

SETTLEMENT OF ESTATE OF DECEASED PERSONS

RULE 73

Venue and Process

SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

SECTION 2. Where estate settled upon dissolution of marriage. — When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

SECTION 3. Process. — In the exercise of probate jurisdiction, Court of First Instance may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law. If a person does not perform an order or judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment, or is released.

SECTION 4. Presumption of death. — For purposes of settlement of his estate, a person shall be presumed dead if absent and unheard from for the periods fixed in the Civil Code. But if such person proves to be alive, he shall be entitled to the balance of his estate after payment of all his debts. The balance may be recovered by motion in the same proceeding.

RULE 74

Summary Settlement of Estates

SECTION 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

SECTION 2. Summary settlement of estates of small value. — Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Court of First Instance having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register's office.

SECTION 3. Bond to be filed by distributees. — The court, before allowing a partition in accordance with the provisions of the preceding section, may require the distributees, if property other than real is to be distributed, to file a bond in an amount to be fixed by court, conditioned for the payment of any just claim which may be filed under the next succeeding section.

SECTION 4. Liability of distributees and estate. — If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. And if within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made.

SECTION 5. Period for claim of minor or incapacitated person. — If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1) year after such disability is removed.

RULE 75

Production of Will. Allowance of Will Necessary

SECTION 1. Allowance necessary. Conclusive as to execution. — No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

SECTION 2. Custodian of will to deliver. — The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will.

SECTION 3. Executor to present will and accept or refuse trust. — A person named as executor in a will shall, within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it.

SECTION 4. Custodian and executor subject to fine for neglect. — A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos.

SECTION 5. Person retaining will may be committed. — A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will.

RULE 76

Allowance or Disallowance of Will

SECTION 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

The testator himself may, during his lifetime, petition the court for the allowance of his will.

SECTION 2. Contents of petition. — A petition for the allowance of a will must show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;

(d) The name of the person for whom letters are prayed;

(e) If the will has not been delivered to the court, the name of the person having custody of it.

But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.

SECTION 3. Court to appoint time for proving will. Notice thereof to be published. — When a will is delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by the testator himself.

SECTION 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. — The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing.

If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.

SECTION 5. Proof at hearing. What sufficient in absence of contest. — At the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction of testimony in support of the will. All such testimony shall be taken under oath and reduced to writing. If no person appears to contest the allowance of the will, the court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is required by law.

In the case of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to.

SECTION 6. Proof of lost or destroyed will. Certificate thereupon. — No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.

SECTION 7. Proof when witnesses do not reside in province. — If it appears at the time fixed for the hearing that none of the subscribing witnesses resides in the province, but that the deposition of one or more of them can be taken elsewhere, the court may, on motion, direct it to be taken, and may authorize a photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked the same questions with respect to it, and to the handwriting of the testator and others, as would be pertinent and competent if the original will were present.

SECTION 8. Proof when witnesses dead or insane or do not reside in the Philippines. — If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.

SECTION 9. Grounds for disallowing will. — The will shall be disallowed in any of the following cases;

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

SECTION 10. Contestant to file grounds of contest. — Anyone appearing to contest the will must state in writing his grounds for opposing its allowance, and serve a copy thereof on the petitioner and other parties interested in the estate.

SECTION 11. Subscribing witnesses produced or accounted for where will contested. — If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law.

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, and if the court deem it necessary, expert testimony may be resorted to.

SECTION 12. Proof where testator petitions for allowance of holographic will. — Where the testator himself petitions for the probate of his holographic will and no contest in filed, the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant.

SECTION 13. Certificate of allowance attached to proved will. To be recorded in the Office of Register of Deeds. — If the court is satisfied, upon proof taken and filed, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, and undue influence, or fraud, a certificate of its allowance, signed by the judge, and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the clerk. Attested copies of the will devising real estate and of certificate of allowance thereof, shall be recorded in the register of deeds of the province in which the lands lie.

RULE 77

Allowance of Will Proved Outside of the Philippines and Administration of Estate Thereunder

SECTION 1. Will proved outside the Philippines may be allowed here. — Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.

SECTION 2. Notice of hearing for allowance. — When a copy of such will and of the order or decree of the allowance thereof, both duly authenticated, are filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.

SECTION 3. When will allowed, and effect thereof . — If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the judge, and attested by the seal of the court, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.

SECTION 4. Estate, how administered. — When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country.

RULE 78

Letters Testamentary and of Administration, When and To Whom Issued

SECTION 1. Who are incompetent to serve as executors or administrators. — No person is competent to serve as executor or administrator who:

(a) Is a minor;

(b) Is not a resident of the Philippines; and

(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.

SECTION 2. Executor of executor not to administer estate. — The executor of an executor shall not, as such, administer the estate of the first testator.

SECTION 3. Married women may serve. — A married woman may serve as executrix or administratrix, and the marriage of a single woman shall not affect her authority so to serve under a previous appointment.

SECTION 4. Letters testamentary issued when will allowed. — When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required by these rules.

SECTION 5. Where some coexecutors disqualified others may act. — When all of the executors named in a will can not act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will.

SECTION 6. When and to whom letters of administration granted. — If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

RULE 79

Opposing Issuance of Letters Testamentary. Petition and Contest for Letters of Administration

SECTION 1. Opposition to issuance of letters testamentary. Simultaneous petition for administration. — Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed.

SECTION 2. Contents of petition for letters of administration. — A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent

(d) The name of the person for whom letters of administration are prayed.

But no defect on the petition shall render void the issuance of letters of administration.

SECTION 3. Court to set time for hearing. Notice thereof . — When a petition for letters of administration is filed in the court having jurisdiction, such court shall fix a time and place for hearing the petition, and shall cause notice thereof to be given to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in the estate, in the manner provided in section 3 and 4 of Rule 76.

SECTION 4. Opposition to petition for administration. — Any interested person may, by filing a written opposition, contest the petition on the ground of the incompetency of the person for whom letters are prayed therein, or on the ground of the contestant's own right to the administration, and may pray that letters issue to himself, or to any competent person or persons named in the opposition.

SECTION 5. Hearing and order for letters to issue. — At the hearing of the petition, it must first be shown that notice has been given as hereinabove required, and thereafter the court shall hear the proofs of the parties in support of their respective allegations, and if satisfied that the decedent left no will, or that there is no competent and willing executor, it shall order the issuance of letters of administration to the party best entitled thereto.

SECTION 6. When letters of administration granted to any applicant. — Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves.

RULE 80

Special Administrator

SECTION 1. Appointment of special administrator. — When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed.

SECTION 2. Powers and duties of special administrator. — Such special administrator shall take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court.

SECTION 3. When powers of special administrator cease. Transfer of effects. Pending suits. — When letters testamentary or of administration are granted on the estate of the deceased, the powers of the special administrator shall cease, and he shall forthwith deliver to the executor or administrator the goods, chattels, money, and estate of the deceased in his hands. The executor or administrator may prosecute to final judgment suits commenced by such special administrator.

RULE 81

Bonds of Executors and Administrators

SECTION 1. Bond to be given before issuance of letters. Amount. Conditions. — Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration issue, he shall give a bond, in such sum as the court directs, conditioned as follows:

(a) To make and return to the court, within three (3) months, a true and complete inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him;

(b) To administer according to these rules, and, if an executor, according to the will of the testator, all goods, chattels, rights, credits, and estate which shall at any time come to his possession or to the possession of any other person for him, and from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court;

(c) To render a true and just account of his administration to the court within one (1) year, and at any other time when required by the court;

(d) To perform all orders of the court by him to be performed.

SECTION 2. Bond of executor where directed in will. When further bond required. — If the testator in his will directs that the executor serve without bond, or with only his individual bond, he may be allowed by the court to give bond in such sum and with such surety as the court approves conditioned only to pay the debts of the testator; but the court may require of the executor a further bond in case of a change in his circumstances, or for other sufficient cause, with the conditions named in the last preceding section. LLjur

SECTION 3. Bonds of joint executors and administrators. — When two or more persons are appointed executors or administrators the court may take a separate bond from each, or a joint bond from all.

SECTION 4. Bond of special administrator. — A special administrator before entering upon the duties of his trust shall give a bond, in such sum as the court directs, conditioned that he will make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased which come to his possession or knowledge, and that he will truly account for such as are received by him when required by the court, and will deliver the same to the person appointed executor or administrator, or to such other person as may be authorized to receive them.

RULE 82

Revocation of Administration, Death, Resignation, and Removal of Executors and Administrators

SECTION 1. Administration revoked if will discovered. Proceedings thereupon. — If after letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, and render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided.

SECTION 2. Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation, or removal. — If an executor or administrator neglects to render his account and settle the estate according to law, or to perform an order or judgment of the court, or a duty expressly provided by these rules, or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove him, or, in its discretion, may permit him to resign. When an executor or administrator dies, resigns, or is removed the remaining executor or administrator may administer the trust alone, unless the court grants letters to someone to act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person.

SECTION 3. Acts before revocation, resignation, or removal to be valid. — The lawful acts of an executor or administrator before the revocation of his letters testamentary or of administration, or before his resignation or removal, shall have the like validity as if there had been no such revocation, resignation, or removal.

SECTION 4. Powers of new executor or administrator. Renewal of license to sell real estate. — The person to whom letters testamentary or of administration are granted after the revocation of former letters, or the death, resignation, or removal of a former executor or administrator, shall have the like powers to collect and settle the estate not administered that the former executor or administrator had, and may prosecute or defend actions commenced by or against the former executor or administrator, and have execution on judgments recovered in the name of such former executor or administrator. An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing.

RULE 83

Inventory and Appraisal. Provision for Support of Family

SECTION 1. Inventory and appraisal to be returned within three months. — When three (3) months after his appointment every executor or administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or knowledge. In the appraisement of such estate, the court may order one or more of the inheritance tax appraisers to give his or their assistance.

SECTION 2. Certain articles not to be inventoried. — The wearing apparel of the surviving husband or wife and minor children, the marriage bed and bedding, and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased, under the direction of the court, shall not be considered as assets, nor administered as such, and shall not be included in the inventory.

SECTION 3. Allowance to widow and family. — The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the court, such allowance as are provided by law.

RULE 84

General Powers and Duties of Executors and Administrators

SECTION 1. Executor or administrator to have access to partnership books and property. How right enforced. — The executor or administrator of the estate of a deceased partner shall at all times have access to, and may examine and take copies of, books and papers relating to the partnership business, and may examine and make invoices of the property belonging to such partnership; and the surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. On the written application of such executor or administrator, the court having jurisdiction of the estate may order any such surviving partner or partners to freely permit the exercise of the rights, and to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt.

SECTION 2. Executor or administrator to keep buildings in repair. — An executor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court.

SECTION 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. — An executor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration.

RULE 85

Accountability and Compensation of Executors and Administrators

SECTION 1. Executor or administrator chargeable with all estate and income. — Except as otherwise expressly provided in the following sections, every executor or administrator is chargeable in his account with the whole of the estate of the deceased which has come into his possession, at the value of the appraisement contained in the inventory; with all the interest, profit, and income of such estate; and with the proceeds of so much of the estate as is sold by him, at the price at which it was sold.

SECTION 2. Not to profit by increase or lose by decrease in value. — No executor or administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than the appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly made. If he settles any claim against the estate for less than its nominal value, he is entitled to charge in his account only the amount he actually paid on the settlement.

SECTION 3. When not accountable for debts due estate. — No executor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault.

SECTION 4. Accountable for income from realty used by him. — If the executor or administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent; and if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final.

SECTION 5. Accountable if he neglects or delays to raise or pay money. — When an executor or administrator neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss, the same shall be deemed waste and the damage sustained may be charged and allowed against him in his account, and he shall be liable therefor on his bond.

SECTION 6. When allowed money paid as costs. — The amount paid by an executor or administrator for costs awarded against him shall be allowed in his administration account, unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith.

SECTION 7. What expenses and fees allowed executor or administrator. Not to charge for services as attorney. Compensation provided by will controls unless renounced.— An executor or administrator shall be allowed the necessary expenses in the care, management, and settlement of the estate, and for his services, four pesos per day for the time actually and necessarily employed, or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or devisees, of two per centum of the first five thousand pesos of such value, one per centum of so much of such value as exceeds five thousand pesos and does not exceed thirty thousand pesos, one-half per centum of so much of such value as exceeds thirty thousand pesos and does not exceed one hundred thousand pesos and one-quarter per centum of so much of such value as exceeds one hundred thousand pesos. But in any special case, where the estate is large, and the settlement has been attended with great difficulty, and has required a high degree or capacity on the part of the executor or administrator, a greater sum may be allowed. If objection to the fees allowed be taken, the allowance may be re-examined on appeal.

If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively.

When the executor or administrator is an attorney, he shall not charge against the estate any professional fees for legal services rendered by him.

When the deceased by will makes some other provision for the compensation of his executor, that provision shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces all claim to the compensation provided by the will.

SECTION 8. When executor or administrator to render account. — Every executor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration, unless the court otherwise directs because of extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate; and he shall render such further accounts as the court may require until the estate is wholly settled.

SECTION 9. Examination on oath with respect to account. — The court may examine the executor or administrator upon oath with respect to every matter relating to any account rendered by him, and shall so examine him as to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath of any matter relating to an administration account.

SECTION 10. Account to be settled on notice. — Before the account of an executor or administrator is allowed, notice shall be given to persons interested of the time and place of examining and allowing the same; and such notice may be given personally to such persons interested or by advertisement in a newspaper or newspapers, or both, as the court directs.

SECTION 11. Surety on bond may be party to accounting. — Upon the settlement of the account of an executor or administrator, a person liable as surety in respect to such account may, upon application, be admitted as party to such accounting.

RULE 86

Claims Against Estate

SECTION 1. Notice to creditors to be issued by court. — Immediately after granting letters testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court.

SECTION 2. Time within which claims shall be filed. — In the notice provided in the preceding section, the court shall state the time for the filing of claims against the estate, which shall not be more than twelve (12) nor less than six (6) months after the date of the first publication of the notice. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month.

SECTION 3. Publication of notice to creditors. — Every executor or administrator shall, immediately after the notice to creditors is issued, cause the same to be published three (3) weeks successively in a newspaper of general circulation in the province, and to be posted for the same period in four public places in the province and in two public places in the municipality where the decedent last resided.

SECTION 4. Filing copy of printed notice. — Within ten (10) days after the notice has been published and posted in accordance with the preceding section, the executor or administrator shall file or cause to be filed in the court a printed copy of the notice accompanied with an affidavit setting forth the dates of the first and last publication thereof and the name of the newspaper in which the same is printed.

SECTION 5. Claims which must be filed under the notice. If not filed, barred; exceptions. — All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. Claims not yet due, or contingent, may be approved at their present value.

SECTION 6. Solidary obligation of decedent. — Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution form the other debtor. In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him.

SECTION 7. Mortgage debt due from estate. — A creditor holding a claim against the deceased secured by mortgage or other collateral security, may abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate; or he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section; or he may rely upon his mortgage of other security alone, and foreclose the same at any time within the period of the statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the distribution of the other assets of the estate; but nothing herein contained shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the direction of the court, if the court shall adjudge it to be for the best interest of the estate that such redemption shall be made.

SECTION 8. Claim of executor or administrator against an estate. — If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator, who shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of other claims. The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim.

SECTION 9. How to file a claim. Contents thereof . Notice to executor or administrator. — A claim may be filed by delivering the same with the necessary vouchers to the clerk of court and by serving a copy thereof on the executor or administrator. If the claim be founded on a bond, bill, note or any other instrument, the original need not be filed, but a copy thereof with all indorsements shall be attached to the claim and filed therewith. On demand, however, of the executor or administrator, or by order of the court or judge, the original shall be exhibited, unless it be lost or destroyed, in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or particular description of the instrument and stating its loss or destruction. When the claim is due, it must be supported by affidavit stating the amount justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim is not due, or is contingent, when filed, it must also be supported by affidavit stating the particulars thereof. When the affidavit is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant. The claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued, although the court, in its discretion, and as a matter of convenience, may order all the claims to be collected in a separate folder.

SECTION 10. Answer of executor or administrator. Offsets. — Within fifteen (15) days after service of a copy of the claim on the executor or administrator, he shall file his answer admitting or denying the claim specifically, and setting forth the substance of the matters which are relied upon to support the admission or denial. If he has no knowledge sufficient to enable him to admit or deny specifically, he shall state such want of knowledge. The executor or administrator in his answer shall allege in offset any claim which the decedent before death has against the claimant, and his failure to do so shall bar the claim forever. A copy of the answer shall be served by the executor or administrator on the claimant. The court in its discretion may extend the time for filing such answer.

SECTION 11. Disposition of admitted claim. — Any claim admitted entirely by the executor or administrator shall immediately be submitted by the clerk to the court who may approve the same without hearing; but the court, in its discretion, before approving the claim, may order that known heirs, legatees, or devisees be notified and heard. If upon hearing, an heir, legatee, or devisee opposes the claim, the court may, in its discretion, allow him fifteen (15) days to file an answer to the claim in the manner prescribed in the preceding section.

SECTION 12. Trial of contested claim. — Upon the filing of an answer to a claim, or upon the expiration of the time for such filing, the clerk of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner.

SECTION 13. Judgment appealable. — The judgment of the court approving or disapproving a claim, shall be filed with the record of the administration proceedings with notice to both parties, and is appealable as in ordinary cases. A judgment against the executor or administrator shall be that he pay, in due course of administration, the amount ascertained to be due, and it shall not create any lien upon the property of the estate, or give to the judgment creditor any priority of payment.

SECTION 14. Costs. — When the executor or administrator, in his answer, admits and offers to pay part of a claim, and the claimant refuses to accept the amount offered in satisfaction of his claim, if he fails to obtain a more favorable judgment, he cannot recover costs, but must pay to the executor or administrator costs from the time of the offer. Where an action commenced against the deceased for money has been discontinued and the claim embraced therein presented as in this rule provided, the prevailing party shall be allowed the costs of his action up to the time of its discontinuance.

RULE 87

Actions By and Against Executors and Administrators

SECTION 1. Actions which may and which may not be brought against executor or administrator. — No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

SECTION 2. Executor or administrator may bring or defend actions which survive. — For the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions for causes which survive.

SECTION 3. Heir may not sue until share assigned. — When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee until the time allowed for paying debts has expired.

SECTION 4. Executor or administrator may compound with debtor. — With the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor.

SECTION 5. Mortgage due estate may be foreclosed. — A mortgage belonging to the estate of a deceased person, as mortgagee or assignee of the right of a mortgagee, may be foreclosed by the executor or administrator.

SECTION 6. Proceedings when property concealed, embezzled, or fraudulently conveyed. — If an executor or administrator, heir, legatee, creditor, or other individual interested in the estate of the deceased, complains to the court having jurisdiction of the estate that a person is suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends to disclose the right, title, interest, or claim of the deceased to real or personal estate, or the last will and testament of the deceased, the court may cite such suspected person to appear before it and may examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put to any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office.

SECTION 7. Person entrusted with estate compelled to render account. — The court, on complaint of an executor or administrator, may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds, accounts, or other papers belonging to such estate as came to his possession in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court.

SECTION 8. Embezzlement before letters issued. — If a person, before the granting of letters testamentary or of administration on the estate of the deceased, embezzles or alienates any of the money, goods, chattels, or effects of such deceased, such person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate.i

SECTION 9. Property fraudulently conveyed by deceased may be recovered. When executor or administrator must bring action. — When there is deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration, and the deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or a debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had so conveyed such property, right, interest, debt, or credit that by law the conveyance would be void as against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless on application of the creditors of the deceased, nor unless the creditors making the application pay such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems equitable.

SECTION 10. When creditor may bring action. Lien for costs. — When there is such a deficiency of assets, and the deceased in his lifetime had made or attempted such a conveyance, as is stated in the last preceding section, and the executor or administrator has not commenced the action therein provided for, any creditor of the estate may, with the permission of the court, commence and prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted conveyance for the benefit of the creditors. But the action shall not be commenced until the creditor has filed in a court a bond executed to the executor or administrator, in an amount approved by the judge, conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action. Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. Where the conveyance or attempted conveyance has been made by the deceased in his lifetime in favor of the executor or administrator, the action which a creditor may bring shall be in the name of all the creditors, and permission of the court and filing of bond as above prescribed, are not necessary.

RULE 88

Payment of the Debts of the Estate

SECTION 1. Debts paid in full if estate sufficient. — If, after hearing all the money claims against the estate, and after ascertaining the amount of such claims, it appears that there are sufficient assets to pay the debts, the executor or administrator shall pay the same within the time limited for that purpose.

SECTION 2. Part of estate from which debt paid when provision made by will. — If the testator makes provision by his will, or designates the estate to be appropriated for the payment of debts, the expenses of administration, or the family expenses, they shall be paid according to the provisions of the will; but if the provisions made by the will or the estate appropriated, is not sufficient for that purpose, such part of the estate of the testator, real or personal, as is not disposed of by will, if any, shall be appropriated for that purpose.

SECTION 3. Personalty first chargeable for debts, then realty. — The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses; and if said personal estate is not sufficient for that purpose, or its sale would redound to the detriment of the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor. Any deficiency shall be met by contributions in accordance with the provisions of section 6 of this rule.

SECTION 4. Estate to be retained to meet contingent claims. — If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or, if the estate is insolvent, sufficient to pay a portion equal to the dividend of the other creditors.

SECTION 5. How contingent claim becoming absolute in two years allowed and paid. Action against distributees later. — If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator, within two (2) years from the time limited for other creditors to present their claims, it may be allowed by the court if not disputed by the executor or administrator, and, if disputed, it may be proved and allowed or disallowed by the court as the facts may warrant. If the contingent claim is allowed, the creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor or administrator is sufficient. But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same; but the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased.

SECTION 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. — Where devisees, legatees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid, and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require.

SECTION 7. Order of payment if estate insolvent. — If the assets which can be appropriated for the payment of debts are not sufficient for that purpose, the executor or administrator shall pay the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code.

SECTION 8. Dividends to be paid in proportion to claims. — If there are no assets sufficient to pay the credits of any one class of creditors after paying the credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid.

SECTION 9. Estate of insolvent nonresident, how disposed of . — In case administration is taken in the Philippines of the estate of a person who was at the time of his death an inhabitant of another country, and who died insolvent, his estate found in the Philippines shall, as far as practicable, be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits.

SECTION 10. When and how claim proved outside the Philippines against insolvent resident's estate paid. — If it appears to the court having jurisdiction that claims have been duly proven in another country against the estate of an insolvent who was at the time of his death an inhabitant of the Philippines, and that the executor or administrator in the Philippines had knowledge of the presentation of such claims in such country and an opportunity to contest their allowance, the court shall receive a certified list of such claims, when perfected in such country, and add the same to the list of claims proved against the deceased person in the Philippines so that a just distribution of the whole estate may be made equally among all its creditors according to their respective claims; but the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims.

SECTION 11. Order for payment of debts. — Before the expiration of the time limited for the payment of the debts, the court shall order the payment thereof, and the distribution of the assets received by the executor or administrator for that purpose among the creditors, as the circumstances of the estate require and in accordance with the provisions of this rule.

SECTION 12. Orders relating to payment of debts where appeal is taken. — If an appeal has been taken from a decision of the court concerning a claim, the court may suspend the order for the payment of the debts or may order the distribution among the creditors whose claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim disputed and appealed. When a disputed claim is finally settled the court having jurisdiction of the estate shall order the same to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors.

SECTION 13. When subsequent distribution of assets ordered. — If the whole of the debts are not paid on the first distribution, and if the whole assets are not distributed, or other assets afterwards come to the hands of the executor or administrator, the court may from time to time make further orders for the distribution of assets.

SECTION 14. Creditors to be paid in accordance with terms of order. — When an order is made for the distribution of assets among the creditors, the executor or administrator shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order.

SECTION 15. Time for paying debts and legacies fixed, or extended after notice, within what periods. — On granting letters testamentary or administration the court shall allow to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased, which shall not, in the first instance, exceed one (1) year; but the court may, on application of the executor or administrator and after hearing on such notice of the time and place therefor given to all persons interested as it shall direct, extend the time as the circumstances of the estate require not exceeding six (6) months for a single extension nor so that the whole period allowed to the original executor or administrator shall exceed two (2) years.

SECTION 16. Successor of dead executor or administrator may have time extended on notice within certain period. — When an executor or administrator dies, and a new administrator of the same estate is appointed, the court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor or administrator, not exceeding six (6) months at a time and not exceeding six (6) months beyond the time which the court might have allowed to such original executor or administrator; and notice shall be given of the time and place for hearing such application, as required in the last preceding section.

RULE 89

Sales, Mortgages, and Other Encumbrances of Property of Decedent

SECTION 1. Order of sale of personalty. — Upon the application of the executor or administrator, and on written notice to the heirs and other persons interested, the court may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of paying debts, expenses of administration, or legacies, or for the preservation of the property.

SECTION 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies through personalty not exhausted. — When the personal estate of the deceased is not sufficient to pay the debts, expenses of administration, and legacies, or where the sale of such personal estate may injure the business or other interests of those interested in the estate, and where a testator has not otherwise made sufficient provision for the payment of such debts, expenses, and legacies, the court, on the application of the executor or administrator and on written notice to the heirs, devisees, and legatees residing in the Philippines, may authorize the executor or administrator to sell, mortgage, or otherwise encumber so much as may be necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts, expenses, and legacies, if it clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons interested; and if a part cannot be sold, mortgaged, or otherwise encumbered without injury to those interested in the remainder, the authority may be for the sale, mortgage, or other encumbrance of the whole of such real estate, or so much thereof as is necessary or beneficial under the circumstances.

SECTION 3. Persons interested may prevent such sale, etc., by giving bond. — No such authority to sell, mortgage, or otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond, in a sum to be fixed by the court, conditioned to pay the debts, expenses of administration, and legacies within such time as the court directs; and such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be prosecuted for the benefit of either.

SECTION 4. When court may authorize sale of estate as beneficial to interested persons. Disposal of proceeds. — When it appears that the sale of the whole or a part of the real or personal estate, will be beneficial to the heirs, devisees, legatees, and other interested persons, the court may, upon application of the executor or administrator and on written notice to the heirs, devisees and legatees who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or expenses of administration; but such authority shall not be granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions.

SECTION 5. When court may authorize sale, mortgage, or other encumbrance of estate to pay debts and legacies in other countries. — When the sale of personal estate, or the sale, mortgage, or other encumbrance of real estate is not necessary to pay the debts, expenses of administration, or legacies in the Philippines, but it appears from records and proceedings of a probate court in another country that the estate of the deceased in such other country is not sufficient to pay the debts, expenses of administration, and legacies there, the court here may authorize the executor or administrator to sell the personal estate or to sell, mortgage, or otherwise encumber the real estate for the payment of debts or legacies in the other country, in the same manner as for the payment of debts or legacies in the Philippines.

SECTION 6. When court may authorize sale, mortgage, or other encumbrance of realty acquired on execution or foreclosure. — The court may authorize an executor or administrator to sell, mortgage, or otherwise encumber real estate acquired by him on execution or foreclosure sale, under the same circumstances and under the same regulations as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate.

SECTION 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estate. — The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell personal estate, or to sell, mortgage, or otherwise encumber real estate; in cases provided by these rules and when it appears necessary or beneficial, under the following regulations:

(a) The executor or administrator shall file a written petition setting forth the debts due from the deceased, the expenses of administration, the legacies, the value of the personal estate, the situation of the estate to be sold, mortgaged, or otherwise encumbered, and such other facts as show that the sale, mortgage, or other encumbrance is necessary or beneficial;

(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of the petition, the reason for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper;

(c) If the court requires it, the executor or administrator shall give an additional bond, in such sum as the court directs, conditioned that such executor or administrator will account for the proceeds of the sale, mortgage, or other encumbrance;

(d) If the requirements in the preceding subdivisions of this section have been complied with, the court, by order stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court may authorize it to be public or private, as would be most beneficial to all parties concerned. The executor or administrator shall be furnished with a certified copy of such order;

(e) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale;

(f) There shall be recorded in the registry of deeds of the province in which the real estate thus sold, mortgaged, or otherwise encumbered is situated, a certified copy of the order of the court, together with the deed of the executor or administrator for such real estate, which shall be as valid as if the deed had been executed by the deceased in his lifetime.

SECTION 8. When a court may authorize conveyance or realty which deceased contracted to convey. Notice. Effect of deed. — Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or administrator to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court; and if the contract is to convey real property to the executor or administrator, the clerk of the court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime; but no such conveyance shall be authorized until notice of the application for that purpose has been given personally or by mail to all persons interested, and such further notice has been given, by publication or otherwise, as the court deems proper; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend.

SECTION 9. When court may authorize conveyance of lands which deceased held in trust. — Where the deceased in his lifetime held real property in trust for another person, the court may, after notice given as required in the last preceding section, authorize the executor or administrator to deed such property to the person, or his executor or administrator, for whose use and benefit it was so held; and the court may order the execution of such trust, whether created by deed or by law.

RULE 90

Distribution and Partition of the Estate

SECTION 1. When order for distribution of residue made. — When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.

SECTION 2. Questions as to advancement to be determined. — Questions as to advancement made, or alleged to have been made, by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the person raising the questions and on the heir.

SECTION 3. By whom expenses of partition paid. — If at the time of the distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying for the sum assessed.

SECTION 4. Recording the order of partition of estate. — Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated.

RULE 91

Escheats

SECTION 1. When and by whom petition filed. — When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Court of First Instance of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated.

SECTION 2. Order for hearing. — If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which date shall be not more than six (6) months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least once a week for six (6) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best.

SECTION 3. Hearing and judgment. — Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the person died intestate, seized of real or personal property in the Philippines, leaving no heir or person entitled to the same, and no sufficient cause being shown to the contrary, the court shall adjudge that the estate of the deceased in the Philippines, after the payment of just debts and charges, shall escheat; and shall, pursuant to law, assign the personal estate to the municipality or city where he last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.

The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used.

SECTION 4. When and by whom claim to estate filed. — If a devisee, legatee, heir, widow, widower or other person entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds, after deducting reasonable charges for the care of the estate; but a claim not made within said time shall be forever barred.

SECTION 5. Other actions for escheat. — Until otherwise provided by law, actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall be instituted in the province where the land lies in whole or in part.

GENERAL GUARDIANS AND GUARDIANSHIP

RULE 92

Venue

SECTION 1. Where to institute proceedings. — Guardianship of the person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent person resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or part thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance.

In the City of Manila the proceedings shall be instituted in the Juvenile and Domestic Relations Court.

SECTION 2. Meaning of word "incompetent." — Under this rule, the word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.

SECTION 3. Transfer of venue. — The court taking cognizance of a guardianship proceeding, may transfer the same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees.

RULE 93

Appointment of Guardians

SECTION 1. Who may petition for appointment of guardian for resident. — Any relative, friend, or other pe

rson on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. An officer of the Federal Administration of the United States in the Philippines may also file a petition in favor of a ward thereof, and the Director of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper.

SECTION 2. Contents of petition. — A petition for the appointment of a general guardian must show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The minority or incompetency rendering the appointment necessary or convenient;

(c) The names, ages, and residences of the relatives of the minor or incompetent, and of the persons having him in their care;

(d) The probable value and character of his estate;

(e) The name of the person for whom letters of guardianship are prayed.

The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship.

SECTION 3. Court to set time for hearing. Notice thereof . — When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age or the incompetent himself, and may direct other general or special notice thereof to be given.

SECTION 4. Opposition to petition. — Any interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor, competency of the alleged incompetent, or the unsuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable person named in the opposition.

SECTION 5. Hearing and order for letters to issue. — At the hearing of the petition the alleged incompetent must be present if able to attend, and it must be shown that the required notice has been given. Thereupon the court shall hear the evidence of the parties in support of their respective allegations, and, if the person in question is a minor, or incompetent it shall appoint a suitable guardian of his person or estate, or both, with the powers and duties hereinafter specified.

SECTION 6. When and how guardian for nonresident appointed. Notice. — When a person liable to be put under guardianship resides without the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing, the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate.

SECTION 7. Parents as guardians. — When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these rules, and shall file the petition required by section 2 hereof. For good reasons the court may, however, appoint another suitable person.

SECTION 8. Service of judgment. — Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated.

RULE 94

Bonds of Guardians

SECTION 1. Bond to be given before issuance of letters. Amount. Conditions. — Before a guardian appointed enters upon the execution of his trust, or letters of guardianship issue, he shall give a bond, in such sum as the court directs, conditioned as follows:

(a) To make and return to the court, within three (3) months, a true and complete inventory of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him;

(b) To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward;

(c) To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto;

(d) To perform all orders of the court by him to be performed.

SECTION 2. When new bond may be required and old sureties discharged. — Whenever it is deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the estate.

SECTION 3. Bonds to be filed. Actions thereon. — Every bond given by a guardian shall be filed in the office of the clerk of the court, and, in case of the breach of a condition thereof, may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate.

RULE 95

Selling and Encumbering Property of Ward

SECTION 1. Petition of guardian for leave to sell or encumber estate. — When the income of an estate under guardianship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, or when it appears that it is for the benefit of the ward that his real estate or some part thereof be sold, or mortgaged or otherwise encumbered, and the proceeds thereof put out at interest, or invested in some productive security, or in the improvement or security of other real estate of the ward, the guardian may present a verified petition to the court by which he was appointed setting forth such facts, and praying that an order issue authorizing the sale or encumbrance.

SECTION 2. Order to show cause thereupon. — If it seems probable that such sale or encumbrance is necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of the ward, and all persons interested in the estate, to appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted.

SECTION 3. Hearing on return of order. Costs. — At the time and place designated in the order to show cause, the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward require. The court shall make such order as to costs of the hearing as may be just.

SECTION 4. Contents of order for sale or encumbrance, and how long effective. Bond. — If, after full examination, it appears that it is necessary, or would be beneficial to the ward, to sell or encumber the estate, or some portion of it, the court shall order such sale or encumbrance and that the proceeds thereof be expended for the maintenance of the ward and his family, or the education of the ward, if a minor, or for the putting of the same out at interest, or the investment of the same as the circumstances may require. The order shall specify the causes why the sale or encumbrance is necessary or beneficial, and may direct that estate ordered sold be disposed of at either public or private sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond as a condition for the granting of the order of sale. No order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same, without a sale being had.

SECTION 5. Court may order investment of proceeds and direct management of estate. — The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his hands, in real estate or otherwise, as shall be for the best interest of all concerned, and may make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may require.

RULE 96

General Powers and Duties of Guardians

SECTION 1. To what guardianship shall extend. — A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

SECTION 2. Guardian to pay debts of ward. — Every guardian must pay the ward's just debts out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an order for the sale or encumbrance thereof.

SECTION 3. Guardian to settle accounts, collect debts, and appear in actions for ward. — A guardian must settle all accounts of his ward, and demand, sue for, and receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; and he shall appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose.

SECTION 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. — A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as may be necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order so to do, and apply so much of the proceeds as may be necessary to such maintenance.

SECTION 5. Guardian may be authorized to join in partition proceedings after hearing. — The court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ward jointly or in common with others, but such authority shall only be granted after hearing, upon such notice to relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action.

SECTION 6. Proceedings when person suspected of embezzling or concealing property of ward. — Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any money, goods, or interest, or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to appear for examination touching such money, goods, interest, or instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance.

SECTION 7. Inventories and accounts of guardians, and appraisement of estates. — A guardian must render to the court an inventory of the estate of his ward within three (3) months after his appointment, and annually after such appointment an inventory and account, the rendition of any of which may be compelled upon the application of an interested person. Such inventories and accounts shall be sworn to by the guardian. All the estate of the ward described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within three (3) months after such discovery, succession, or acquisition.

SECTION 8. When guardian's accounts presented for settlement. Expenses and compensation allowed. — Upon the expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. In the settlement of the account, the guardian, other than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of the ward.

RULE 97

Termination of Guardianship

SECTION 1. Petition that competency of ward be adjudged, and proceedings thereupon. — A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person so declared incompetent, and to the ward. On the trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease.

SECTION 2. When guardian removed or allowed to resign. New appointment. — When a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or failed for thirty (30) days after it is due to render an account or make a return, the court may, upon reasonable notice to the guardian, remove him, and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. A guardian may resign when it appears proper to allow the same; and upon his resignation or removal the court may appoint another in his place.

SECTION 3. Other termination of guardianship. — The marriage or voluntary emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. The guardian of any person may be discharged by the court when it appears, upon the application of the ward or otherwise, that the guardianship is no longer necessary.

SECTION 4. Record to be kept by the justice of the peace or municipal judge. — When a justice of the peace or municipal court takes cognizance of the proceedings in pursuance of the provisions of these rules, the record of the proceedings shall be kept as in the court of first instance.

SECTION 5. Service of judgment. — Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated.

RULE 98

Trustees

SECTION 1. Where trustee appointed. — A trustee necessary to carry into effect the provisions of a will or written instrument shall be appointed by the Court of First Instance in which the will was allowed if it be a will allowed in the Philippines, otherwise by the Court of First Instance of the province in which the property, or some portion thereof, affected by the trust is situated.

SECTION 2. Appointment and powers of trustee under will. Executor of former trustee need not administer trust. — If a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will, the proper Court of First Instance may, after notice to all persons interested, appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. No person succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust.

SECTION 3. Appointment and powers of new trustee under written instrument. — When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy, the proper Court of First Instance may, after due notice to all persons interested, appoint a new trustee to act alone or jointly with the others, as the case may be. Such new trustee shall have and exercise the same powers, rights, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested, in the trustee in whose place he is substituted; and the court may order such conveyance to be made by the former trustee or his representatives, or by the other remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either alone or jointly with the others.

SECTION 4. Proceedings where trustee appointed abroad. — When land in the Philippines is held in trust for persons resident here by a trustee who derives his authority from without the Philippines, such trustee shall, on petition filed in the Court of First Instance of province where the land is situated, and after due notice to all persons interested, be ordered to apply to the court for appointment as trustee; and upon his neglect or refusal to comply with such order, the court shall declare such trust vacant, and shall appoint a new trustee in whom the trust estate shall vest in like manner as if he had been originally appointed by such court.

SECTION 5. Trustee must file bond. — Before entering on the duties of his trust, a trustee shall file with the clerk of the court having jurisdiction of the trust a bond in the amount fixed by the judge of said court, payable to the Government of the Philippines and sufficient and available for the protection of any party in interest, and a trustee who neglects to file such bond shall be considered to have declined or resigned the trust; but the court may until further order exempt a trustee under a will from giving a bond when the testator has directed or requested such exemption, and may so exempt any trustee when all persons beneficially interested in the trust, being of full age, request the exemption. Such exemption may be cancelled by the court at any time and the trustee required to forthwith file a bond.

SECTION 6. Conditions included in bond. — The following conditions shall be deemed to be a part of the bond whether written therein or not:

(a) That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge;

(b) That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed;

(c) That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order;

(d) That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto.

But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly.

SECTION 7. Appraisal. Compensation of trustee. — When an inventory is required to be returned by a trustee, the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance tax appraisers to assist in the appraisement. The compensation of the trustee shall be fixed by the court, if it be not determined in the instrument creating the trust.

SECTION 8. Removal or resignation of trustee. — The proper Court of First Instance may, upon petition of the parties beneficially interested and after due notice to the trustee and hearing, remove a trustee if such removal appears essential in the interests of the petitioners. The court may also, after due notice to all persons interested, remove a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper to allow such resignation.

SECTION 9. Proceedings for sale or encumbrance of trust estate. — When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction of the trust may, on petition and after due notice and hearing, order such sale or encumbrance to be made, and the reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust. The petition, notice, hearing, order of sale or encumbrance, and record of proceedings, shall conform as nearly as may be to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards.

RULE 99

Adoption and Custody of Minors

SECTION 1. Venue. — A person desiring to adopt another or have the custody of a minor shall present his petition to the Court of First Instance of the province, or the municipal or justice of the peace court of the city or municipality in which he resides.

In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court.

SECTION 2. Contents of petition. — The petition for adoption shall contain the same allegations required in a petition for guardianship, to wit:

(a) The jurisdictional facts;

(b) The qualifications of the adopter;

(d) The name, age, and residence of the person to be adopted and of his relatives or of the persons who have him under their care;

(e) The probable value and character of the estate of the person to be adopted.

SECTION 3. Consent to adoption. — There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such person; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required.

If the person to be adopted is of age, only his or her consent and that of the spouse, if any, shall be required.

SECTION 4. Order for hearing. — If the petition and consent filed are sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which date shall not be more than six (6) months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best.

SECTION 5. Hearing and judgment. — Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed, that the allegations of the petition are true, and that it is a proper case for adoption and the petitioner or petitioners are able to bring up and educate the child properly, the court shall adjudge that thenceforth the child is freed from all legal obligations of obedience and maintenance with respect to its natural parents, except the mother when the child is adopted by her husband, and is, to all legal intents and purposes, the child of the petitioner or petitioners, and that its surname is changed to that of the petitioner or petitioners. The adopted person or child shall thereupon become the legal heir of his parents by adoption and shall also remain the legal heir of his natural parents. In case of the death of the adopted person or child, his parents and relatives by nature, and not by adoption, shall be his legal heirs. cda

SECTION 6. Proceedings as to child whose parents are separated. Appeal. — When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such hearing, it appears that both parents are improper persons to have the care, custody, and control of the child, the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society. The court may in conformity with the provisions of the Civil Code order either or both parents to support or help support said child, irrespective of who may be its custodian, and may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.

SECTION 7. Proceedings as to vagrant or abused child. — When the parents of any minor child are dead, or by reason of long absence or legal or physical disability have abandoned it, or cannot support it through vagrancy, negligence, or misconduct, or neglect or refuse to support it, or treat it with excessive harshness or give it corrupting orders, counsels, or examples, or cause or allow it to engage in begging, or to commit offenses against the law, the proper Court of First Instance, upon petition filed by some reputable resident of the province setting forth the facts, may issue an order requiring such parents to show cause, or, if the parents are dead or cannot be found, requiring the fiscal of the province to show cause, at a time and place fixed in the order, why the child should not be taken from its parents, if living; and if upon the hearing it appears that the allegations of the petition are true, and that it is for the best interest of the child, the court may make an order taking it from its parents, if living; and committing it to any suitable orphan asylum, children's home, or benevolent society or person to be ultimately placed, by adoption or otherwise, in a home found for it by such asylum, children's home, society or person.

SECTION 8. Service of judgment. — Final orders or judgments under this rule shall be served by the clerk upon the civil registrar of the city or municipality wherein the court issuing the same is situated.

RULE 100

Rescission and Revocation of Adoption

SECTION 1. Who may file petition; grounds. — A minor or other incapacitated person may, through a guardian or guardian ad litem, petition for the rescission or revocation of his or her adoption for the same causes that authorize the deprivation of parental authority.

The adopter may, likewise, petition the court for the rescission or revocation of the adoption in any of these cases:

(a) If the adopted person has attempted against the life of the adopter;

(b) When the adopted minor has abandoned the home of the adopter for more than three (3) years;

SECTION 2. Order to answer. — The court in which the petition is filed shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and a copy of the petition shall be served on the adverse party in such manner as the court may direct.

SECTION 3. Judgment. — If upon trial, on the day set therefor, the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission or revocation of the adoption, with or without costs, as justice requires.

SECTION 4. Service of judgment. — A certified copy of the judgment rendered in accordance with the next preceding section shall be served upon the civil registrar concerned, within thirty (30) days from rendition thereof, who shall forthwith enter the action taken by the court in the register.

SECTION 5. Time within which to file petition. — A minor or other incapacitated person must file the petition for rescission or revocation of adoption within the five (5) years following his majority, or if he was incompetent at the time of the adoption, within the five (5) years following the recovery from such incompetency.

The adopter must also file the petition to set aside the adoption within five (5) years from the time the cause or causes giving rise to the rescission or revocation of the same took place.

RULE 101

Proceedings for Hospitalization of Insane Persons

SECTION 1. Venue. Petition for commitment. — A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Court of First Instance of the province where the person alleged to be insane is found. The petition shall be filed by the Director of Health in all cases where, in his opinion, such commitment is for the public welfare, or for the welfare of said person who, in his judgment, is insane, and such person or the one having charge of him is opposed to his being taken to a hospital or other place for the insane.

SECTION 2. Order for hearing. — If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date for the hearing thereof, and copy of such order shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. The court shall furthermore order the sheriff to produce the alleged insane person, if possible, on the date of the hearing.

SECTION 3. Hearing and judgment. — Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane as may be recommended by the Director of Health. The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed.

SECTION 4. Discharge of insane. — When, in the opinion of the Director of Health, the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured, or may be released without danger he may file the proper petition with the Court of First Instance which ordered the commitment.

SECTION 5. Assistance of fiscal in the proceeding. — It shall be the duty of the provincial fiscal or in the City of Manila the fiscal of the city, to prepare the petition for the Director of Health and represent him in court in all proceedings arising under the provisions of this rule.

RULE 102

Habeas Corpus

SECTION 1. To what habeas corpus extends. — Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

SECTION 2. Who may grant the writ. — The writ of habeas corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First Instance, or any judge thereof for the hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district.

SECTION 3. Requisites of application therefor. — Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth:

(a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty;

(b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended;

(d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear.

SECTION 4. When writ not allowed or discharge authorized. — If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.

SECTION 5. When the writ must be granted and issued. — A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it.

SECTION 6. To whom writ directed, and what to require. — In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint.

SECTION 7. How prisoner designated and writ served. — The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody.

SECTION 8. How writ executed and returned. — The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof.

SECTION 9. Defect of form. — No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge before whom he is to be brought.

SECTION 10. Contents of return. — When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably:

(a) Whether he has or has not the party in his custody or power, or under restraint;

(b) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held;

(c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge;

(d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made.

SECTION 11. Return to be signed and sworn to. — The return or statement shall be signed by the person who makes it; and shall also be sworn to by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity.

SECTION 12. Hearing on return. Adjournments. — When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law.

SECTION 13. When the return evidence, and when only a plea. — If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts.

SECTION 14. When person lawfully imprisoned recommitted, and when let to bail. — If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order or judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement.

SECTION 15. When prisoner discharged if no appeal. — When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.

SECTION 16. Penalty for refusing to issue writ, or for disobeying the same. — A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt.

SECTION 17. Person discharged not to be given imprisoned. — A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting writ as for contempt.

SECTION 18. When prisoner may be removed from one custody to another. — A person committed to prison, or in custody of an officer, for any criminal matter, shall not be removed therefrom into the custody of another officer unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail, or, by order of the proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire, epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes, signs, or countersigns any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action.

SECTION 19. Record of writ, fees and costs. — The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by virtue of the proceedings. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct.

RULE 103

Change of Name

SECTION 1. Venue. — A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court.

SECTION 2. Contents of petition. — A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

SECTION 3. Order for hearing. — If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

SECTION 4. Hearing. — Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.i

SECTION 5. Judgment. — Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition.

SECTION 6. Service of judgment. — Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register.

RULE 104

Voluntary Dissolution of Corporations

SECTION 1. Where, by whom and on what showing application made. — A petition for dissolution of a corporation shall be filed in the Court of First Instance of the province where the principal office of a corporation is situated. The petition shall be signed by a majority of its board of directors or other officers having the management of its affairs, verified by its president or secretary or one of its directors, and shall set forth all claims and demands against it, and that its dissolution was resolved upon by a majority of the members, or, if a stock corporation, by the affirmative vote of the stockholders holding and representing two-thirds of all shares of stock issued or subscribed, at a meeting of its members or stockholders called for that purpose.

SECTION 2. Order thereupon for filing objections. — If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date on or before which objections thereto may be filed by any person, which date shall not be less than thirty (30) nor more than sixty (60) days after the entry of the order. Before such date a copy of the order shall be published at least once a week for four (4) successive weeks in some newspaper of general circulation published in the municipality or city where the principal office of the corporation is situated, or, if there be no such newspaper, then in some newspaper of general circulation in the Philippines, and a similar copy shall be posted for four (4) weeks in three public places in such municipality or city.

SECTION 3. Hearing, dissolution, and disposition of assets. Receiver. — Upon five (5) days' notice given after the date on which the right to file objections as fixed in the order expired, the court shall proceed to hear the petition and try any issue made by objections filed; and if no such objection is sufficient, and the material allegations of the petition are true, it shall render judgment dissolving the corporation and directing such disposition of its assets as justice requires, and may appoint a receiver to collect such assets and pay the debts of the corporation.

SECTION 4. What shall constitute record. — The petition, orders, proof of publication and posting, objections filed, declaration of dissolution, and any evidence taken, shall constitute the record in the case.

RULE 105

Judicial Approval of Voluntary Recognition of Minor Natural Children

SECTION 1. Venue. — Where judicial approval of a voluntary recognition of a minor natural child is required, such child or his parents shall obtain the same by filing a petition to that effect with the Court of First Instance of the province in which the child resides. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

SECTION 2. Contents of petition. — The petition for judicial approval of a voluntary recognition of a minor natural child shall contain the following allegations:

(a) The jurisdictional facts;

(b) The names and residences of the parents who acknowledged the child, or of either of them, and their compulsory heirs, and the person or persons with whom the child lives;

(c) The fact that the recognition made by the parent or parents took place in a statement before a court of record or in an authentic writing, copy of the statement or writing being attached to the petition.

SECTION 3. Order for hearing. — Upon the filing of the petition, the court, by an order reciting the purpose of the same, shall fix the date and place for the hearing thereof, which date shall not be more than six (6) months after the entry of the order, and shall, moreover, cause a copy of the order to be served personally or by mail upon the interested parties, and published once a week for three (3) consecutive weeks, in a newspaper or newspapers of general circulation in the province.

SECTION 4. Opposition. — Any interested party must, within fifteen (15) days from service, or from the last date of publication, of the order referred to in the next preceding section, file his opposition to the petition, stating the grounds or reasons therefor.

SECTION 5. Judgment. — If, from the evidence presented during the hearing, the court is satisfied that the recognition of the minor natural child was willingly and voluntarily made by the parent or parents concerned, and that the recognition is for the best interest of the child, it shall render judgment granting judicial approval of such recognition.

SECTION 6. Service of judgment upon civil registrar. — A copy of the judgment rendered in accordance with the preceding section shall be served upon the civil registrar whose duty it shall be to enter the same in the register.

RULE 106

Constitution of Family Home

SECTION 1. Who may constitute. — The head of a family owning a house and the land on which it is situated may constitute the same into a family home by filing a verified petition to that effect with the Court of First Instance of the province or city were the property is located. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

When there is danger that a person obliged to give support may lose his or her fortune because of grave mismanagement or on account of riotous living, his or her spouse, if any, and a majority of those entitled to be supported by him or by her may petition the Court of First Instance for the creation of the family home.

SECTION 2. Contents of petition. — The petition shall contain the following particulars:

(a) Description of the property;

(b) An estimate of its actual value;

(d) The encumbrances thereon;

(e) The names and addresses of all the creditors of the petitioner or head of the family and of all mortgagees and other persons who have an interest in the property;

(f) The names of all the beneficiaries of the family home.

SECTION 3. Notice and publication. — The court shall notify the creditors, mortgagees and all other persons who have an interest in the estate, of the filing of the petition, causing copies thereof to be served upon them, and published once a week for three (3) consecutive weeks in a newspaper of general circulation. The petition shall, moreover, be caused to be posted in a conspicuous place in the parcel of land mentioned therein, and also in a conspicuous place of the municipal building of the municipality or city in which the land is situated, for at least fourteen (14) days prior to the day of the hearing.

SECTION 4. Objection and date of hearing. — In the notice and publication required in the preceding section, the court shall require the interested parties to file their objection to the petition within a period of not less than thirty (30) days from receipt of notice or from the date of last publication, and shall fix the date and time of the hearing of the petition.

SECTION 5. Order. — After hearing, if the court finds that the actual value of the proposed family home does not exceed twenty thousand pesos, or thirty thousand pesos in chartered cities, and that no third person is prejudiced thereby, or that creditors have been given sufficient security for their credits, the petition shall be approved.

SECTION 6. Registration of order. — A certified copy of the order of the court approving the establishment of the family home shall be furnished the register of deeds who shall record the same in the registry of property.

RULE 107

Absentees

SECTION 1. Appointment of representative. — When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the Court of First Instance of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

SECTION 2. Declaration of absence; who may petition. — After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the following:

(a) The spouse present;

(b) The heirs instituted in a will, who may present an authentic copy of the same;

(d) Those who have over the property of the absentee some right subordinated to the condition of his death.

SECTION 3. Contents of petition. — The petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or an administrator, must show the following:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy;

(c) The names and residences of creditors and others who may have any adverse interest over the property of the absentee;

(d) The probable value, location and character of the property belonging to the absentee.

SECTION 4. Time of hearing; notice and publication thereof . — When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof where all concerned may appear to contest the petition.

Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best.

SECTION 5. Opposition. — Anyone appearing to contest the petition shall state in writing his grounds therefor, and served a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing.

SECTION 6. Proof at hearing; order. — At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians.

In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette.

SECTION 7. Who may be appointed. — In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court.

In case of declaration of absence, the trustee or administrator of the absentee's property shall be appointed in accordance with the preceding paragraph.

SECTION 8. Termination of administration. — The trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases:

(a) When the absentee appears personally or by means of an agent;

(b) When the death of the absentee is proved and his testate or intestate heirs appear;

(c) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title.

In these cases the trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of those who may have a right thereto.

RULE 108

Cancellation or Correction of Entries in the Civil Registry

SECTION 1. Who may file petition. — Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located.

SECTION 2. Entries subject to cancellation or correction. — Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (a) changes of name.

SECTION 3. Parties. — When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

SECTION 4. Notice and publication. — Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

SECTION 5. Opposition. — The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto.

SECTION 6. Expediting proceedings. — The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings.

SECTION 7. Order. — After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

RULE 109

Appeals in Special Proceedings

SECTION 1. Orders or judgments from which appeals may be taken. — An interested person may appeal in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment:

(a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled;

(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it;

(d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and

(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration.

SECTION 2. Advance distribution in special proceedings. — Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules.

PART III

CRIMINAL PROCEDURE

RULE 110

Prosecution of Offenses

SECTION 1. Commencement of criminal action. — All criminal actions must be commenced either by complaint or information in the name of the People of the Philippines against all persons who appear to be responsible therefor.

SECTION 2. Complaint defined. — Complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other employee of the government or governmental institution in charge of the enforcement or execution of the law violated.

SECTION 3. Information defined. — An information is an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court.

SECTION 4. Who must prosecute criminal actions. — All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal.

The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be.

The offended party, even if she were a minor, has the right to institute the prosecution for the above offenses, independently of her parents, grandparents or guardian, unless she is incompetent or incapable of doing so upon grounds other than her minority. Where the offended party who is a minor fails to file the complaint, her parents, grandparents or guardians, may file the same. The right to file the action granted to the parents, or grandparents or guardians shall be exclusive of all other persons and shall be exercised successively in the order herein provided.

No criminal action for defamation which consists in the imputation of an offense mentioned above, shall be brought except at the instance of and upon complaint filed by the offended party.

SECTION 5. Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the defendant; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information.

SECTION 6. Name of the defendant. — A complaint or information must state the name and surname of the defendant or any appellation or nickname by which he has been or is known, or if his name cannot be discovered he must be described under a fictitious name with a statement that his true name is unknown.

If in the course of the proceeding the true name of the defendant is disclosed by him, or appears in some other manner to the court, the court shall cause the true name of the defendant to be inserted in the complaint or information and record.

SECTION 7. Designation of the offense. — Whenever possible, a complaint or information should state the designation given to the offense by the statute, besides the statement of the acts or omissions constituting the same, and if there is no such designation, reference should be made to the section or subsection of the statute punishing it.

SECTION 8. Cause of accusation. — The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition, not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment.

SECTION 9. Place of the commission of the offense. — The complaint or information is sufficient if it can be understood therefrom that the offense was committed or some of the essential ingredients thereof occurred at some place within the jurisdiction of the court, unless the particular place wherein it was committed constitutes an essential element of the offense or is necessary for identifying the offense charged. prcd

SECTION 10. Time of the commission of the offense. — It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit.

SECTION 11. Name of the offended party. — A complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known, and if there is no better way of identifying him, he must be described under a fictitious name.

(a) In case of offenses against property, if the name of the offended party is unknown, the property, subject matter of the offense, must be described with such particularity as to properly identify the particular offense charged.

(b) If in the course of the trial the true name of the person against whom or against whose property the offense was committed is disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information, or record.

(c) If the offended party is a corporation or any other juridical person, it is sufficient to state the name of such corporation or juridical person, or any name or designation by which it has been or is known, or by which it may be identified, without necessity of averring that it is a corporation, or that it is organized in accordance with law.

SECTION 12. Duplicity of offense. — A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses.

SECTION 13. Amendment. — The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original complaint or information and order the filing of a new one charging the proper offense, provided the defendant would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial.

SECTION 14. Place where action is to be instituted. — (a) In all criminal prosecutions the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredients thereof took place.

(b) Where an offense is committed on a railroad train, in an aircraft, or in any other public or private vehicle while in the course of its trip, the criminal action may be instituted and tried in the court of any municipality or province through which such train, aircraft or other vehicle passed during such trip.

(c) Where an offense is committed on board a vessel registered or licensed in accordance with the laws of the Philippines, in the course of its voyage, the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or province through which the vessel passed during such voyage.

(d) Other crimes committed outside of the Philippines but punishable therein under Article 2 of the Revised Penal Code shall be cognizable by the first Court of First Instance in which the charge is filed.

SECTION 15. Intervention of the offended party in criminal action. — Unless the offended party has waived the civil action or expressly reserved the right to institute it separately from the criminal action, and subject to the provisions of section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense.

RULE 111

Prosecution of Civil Action

SECTION 1. Institution of criminal and civil actions. — When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately.

SECTION 2. Independent civil action. — In the cases provided for in Articles 31, 32, 33, and 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

SECTION 3. Other civil actions arising from offenses. — In all cases not included in the preceding section the following rules shall be observed:

(a) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action;

(b) After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted, and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered;

(c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered.

SECTION 4. Judgment in civil action not a bar. — A final judgment rendered in a civil action absolving the defendant from civil liability is no bar to a criminal action.

SECTION 5. Suspension by reason of prejudicial question. — A petition for the suspension of the criminal action based upon the pendency of a pre-judicial question in a civil case, may only be presented by any party before or during the trial of the criminal action.

RULE 112

Preliminary Investigation

SECTION 1. Preliminary examination. — Preliminary examination is a previous inquiry or examination made before the arrest of the accused by a judge or officer authorized to conduct the same, with whom a complaint or information has been filed imputing the commission of an offense cognizable by the Court of First Instance, for the purpose of determining whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof, so that a warrant of arrest may be issued and the accused held for trial.

SECTION 2. Officers authorized to conduct preliminary examination. — Every justice of the peace, municipal judge, city or provincial fiscal, shall have authority to conduct preliminary examination or investigation in accordance with these rules of all offenses alleged to have been committed within his municipality, city or province, cognizable by the Court of First Instance.

The justice of the peace of the provincial capital or of the municipality in which the provincial jail is located, when directed by an order of the Court of First Instance, shall have authority to conduct such preliminary examination or investigation of any offense committed anywhere within his province at the expense of the municipality wherein the same was committed.

SECTION 3. Preliminary examination by the municipal mayor. — In case of temporary absence of both the justice of the peace and the auxiliary justice from the municipality, town, or place wherein they exercise their jurisdiction, the municipal mayor shall make the preliminary examination in criminal cases when such examination cannot be delayed without prejudice to the interest of justice. He shall make a report of any preliminary examination so made to the justice of the peace or to the auxiliary justice immediately upon the return of one or the other. He shall have authority in such cases to order the arrest of the defendant and to grant him bail in the manner and cases provided for in Rule 114.

SECTION 4. Summoning witnesses. — Every person making complaint charging the commission of an offense must inform the judge or the corresponding officer of all persons whom he believes to have any knowledge of its commission; the said judge or officer shall issue subpoena for such persons, requiring them to attend at a specified time and place as witnesses.

SECTION 5. Duty of judge, fiscal or other officer conducting preliminary examination. — The justice of the peace, the municipal judge, the fiscal or the municipal mayor who conducts the preliminary examination as provided in these rules must take under oath, either in the presence or absence of the accused, the testimony of the complainant and his witnesses. The testimony of the complainant and his witnesses shall be reduced to writing and signed by them.

SECTION 6. Warrant of arrest, when issued. — If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest.

SECTION 7. Admission to bail when arrest occurs outside of the jurisdiction of the court. — Upon issuing the order of arrest, the judge shall ascertain whether the defendant is within or without his jurisdiction. In the latter case, if the offense charged is one which admits bail, he shall issue an order fixing the amount thereof and authorizing any justice of the peace or judge of a Court of First Instance where the defendant may be found or arrested to accept such bail. The officer making the arrest shall take the accused before a judge or other official of such province having authority to admit to bail, who shall admit the defendant to bail for his appearance before the judge who issued the warrant, and release him, and inform the judge who issued the order of arrest of his action, forwarding the papers in the case.

SECTION 8. Procedure when bail not given or when offense admits no bail. — If the offense charged in the complaint is not bailable, or if on the admission to bail of the person arrested as provided in section 7, bail is not forthwith given, the officer who made the arrest shall take the person arrested before the judge or before some other person in authority, who issued the warrant as directed therein.

SECTION 9. When summons instead of warrant of arrest issued. — When the defendant is charged with violation of some law or ordinance and the penalty provided for such violation is arresto menor or imprisonment for not over one (1) month or a fine of not more than two hundred pesos or both, the judge shall not issue any warrant or order for the arrest of the defendant, but shall order the latter to appear on the day and hour fixed in the order to answer to the complaint or information, unless the defendant is a recidivist, or fugitive from justice, or is charged with physical injuries, or does not reside in the place where the violation of the law or ordinance was committed, or has no known residence. But the judge may order that a defendant charged with such offense be arrested and not released except upon furnishing bail.

SECTION 10. Right of accused to preliminary investigation after arrest. — After the arrest of the accused and his delivery to the court, he shall be informed of the complaint or information filed against him. He shall be given access to the testimony and evidence presented against him at the preliminary examination, and, if he desires to testify or to present witnesses or evidence in his favor, he shall be allowed to do so. The testimony of the witnesses presented at this investigation need not be reduced to writing but that of the accused shall be taken in writing and subscribed by him.

In cases triable in the justice of the peace or municipal courts, the accused shall not be entitled as a matter of right to a preliminary investigation in accordance with this section.

SECTION 11. Sending for attorney. — At any time during the proceedings referred to in the preceding section the defendant, if he so requests, shall be allowed to have the services of an attorney. For this purpose, the judge or corresponding officer may require any peace officer to deliver any message from the defendant to any attorney requesting the latter's services.

SECTION 12. Transmission of record. — Upon the conclusion of the preliminary investigation, the judge or corresponding officer shall transmit without delay to the clerk of the Court of First Instance having jurisdiction of the offense the record of the case, including (a) the warrant, if the arrest was by virtue of a warrant, and the written testimony in support of the same; (b) an abstract of the testimony of the witnesses at the preliminary investigation; (c) the undertaking or bail of the accused; (d) the person of the accused if not on bail; and (e) his findings from the preliminary investigation.

SECTION 13. Preliminary examination and investigation by the judge of the Court of First Instance. — Upon complaint filed directly with the Court of First Instance, without previous preliminary examination and investigation conducted by the fiscal, the judge thereof shall either refer the complaint to the justice of the peace referred to in the second paragraph of section 2 hereof for preliminary examination and investigation, or himself conduct both preliminary examination and investigation simultaneously in the manner provided in the preceding sections, and should he find reasonable ground to believe that the defendant has committed the offense charged, he shall issue a warrant for his arrest, and thereafter refer the case to the fiscal for the filing of the corresponding information.

SECTION 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in cases cognizable by the Court of First Instance. — Except where an investigation has been conducted by a judge of first instance, justice of the peace or other officer in accordance with the provisions of the preceding sections, no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. If the accused appears the investigation shall be conducted in his presence and he shall have the right to be heard, to cross-examine the complainant and his witnesses, and to adduce evidence in his favor. If he cannot be subpoenaed, or if subpoenaed he does not appear before the fiscal, the investigation shall proceed without him.

The fiscal or state attorney shall certify under oath in the information to be filed by him that the defendant was given a chance to appear in person or by counsel at said examination and investigation.

SECTION 15. Investigation of persons in custody. — Where the accused is detained without a warrant for his arrest, he may ask for a preliminary investigation by a proper officer in accordance with the preceding sections, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended. Notwithstanding such waiver the investigation must be terminated within seven (7) days from its inception.

If the case has already been filed in court and no preliminary investigation has been conducted by the fiscal because the accused has not made the waiver referred to in the preceding paragraph, the accused may, within a period of five (5) days from the time he learns of the filing of the information, ask for a reinvestigation thereof with the same right to cross-examine the witnesses against him and adduce evidence in his favor.

SECTION 16. Investigation for prosecution under Anti- Subversion Act. — No prosecution for violation of the Anti- Subversion Act shall be made unless the city or provincial fiscal, or any special attorney or prosecutor duly designated by the Secretary of Justice, as the case may be, finds after due investigation of the facts, that a prima facie case for violation of said Act exists against the accused, and thereafter presents an information in court against the said accused in due form, and certifies under oath that he has conducted a proper preliminary investigation thereof, with notice, whenever it is possible to give the same, to the party concerned, who shall have the right to be represented by counsel, to testify, to have compulsory process for obtaining witnesses in his favor, and to cross-examine witnesses against him; Provided, That the preliminary investigation of any offense defined and penalized under the Anti-Subversion Act by prision mayor to death shall be conducted by the proper Court of First Instance.

RULE 113

Arrest

SECTION 1. Definition of arrest. — Arrest is the taking of a person into custody in order that he may be forthcoming to answer for the commission of an offense.

SECTION 2. Arrest — How made. — An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest.

No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention.

SECTION 3. Execution of warrant. — It shall be the duty of an officer to whom the warrant of arrest is delivered to arrest the defendant and without unnecessary delay take the person arrested before the judge or before some other person in authority who issued the warrant as directed therein.

SECTION 4. Execution of warrant outside of the province. — Warrant of arrest issued by the justice of the peace cannot be served or executed outside his province, unless the judge of the Court of First Instance of the district or, in his absence, the provincial fiscal shall certify that in his opinion the interest of justice requires such service. Warrant issued by the judge of the Court of First Instance or of any other superior court may be served or executed anywhere within the Philippines.

SECTION 5. Arrest upon order of a judge. — When an offense is committed in the presence of a judge acting as such, he may, by an oral or written order, command any person immediately to arrest the offender, and may thereupon proceed as though the offender had been brought before him on a warrant of arrest.

SECTION 6. Arrest without warrant — When lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence;

(b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while transferred from one confinement to another.

SECTION 7. Time of making arrest. — An arrest may be made on any day and at any time of the day or night.

SECTION 8. Method of arrest by officer by virtue of warrant. — When making an arrest by virtue of a warrant the officer shall inform the person to be arrested of the cause of the arrest and of the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

SECTION 9. Method of arrest by officer without warrant. — When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the person to be arrested is then engaged in the commission of an offense, or is pursued immediately after its commission or after an escape, or flees or forcibly resist before the officer has opportunity so to inform him or when the giving of such information will imperil the arrest. cda

SECTION 10. Method of arrest by private person. — A private person when making an arrest shall inform the person to be arrested of the intention to arrest him and cause of the arrest, unless the person to be arrested is then engaged in the commission of an offense, or is pursued immediately after its commission or after an escape, or flees or forcibly resists before the person making the arrest has opportunity so to inform him, or when the giving of such information will imperil the arrest.

SECTION 11. Officer may summon assistance. — Any officer making a lawful arrest may orally summon as many persons as he deems necessary to aid him in making the arrest. Every person so summoned by an officer shall aid him in the making of such arrest, when he can render such aid without detriment to himself.

SECTION 12. Right of officer to break into building. — An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for an offense without a warrant, as provided in section 6, may break open a door or window or any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after he has announced his authority and purpose.

SECTION 13. Right to break door or window to effect release. — Whenever an officer or private person has entered a building in accordance with the provisions of the preceding section, he may break open a door or window of the building, if detained therein, when necessary for the purpose of liberating himself.

SECTION 14. Right to break into building in order to effect release of person making arrest detained therein. — A peace officer or a private person may break open a door or window of any building when necessary for the purpose of liberating a person who entered the building in accordance with the provisions of section 12 and is detained therein.

SECTION 15. Arrest after escape or rescue. — If a person lawfully arrested escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and retake him without a warrant at any time and in any place within the Philippines.

SECTION 16. Method of recapture. — To retake the person escaping or rescued, the person from whose custody he escaped who is lawfully pursuing may use the same means as are authorized for an arrest.

SECTION 17. Duty of person making arrest without warrant. — Any person making arrest for legal ground shall, without unnecessary delay and within the time prescribed in Article 125 of the Revised Penal Code, as amended, take the person arrested to the proper court or judge for such action as they may deem proper to take.

SECTION 18. Right of attorney to visit person arrested. — Any attorney entitled to practice in the courts of the Philippines shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person, in the jail or any other place of custody at any hour of the day or, in urgent cases, of the night.

RULE 114

Bail

SECTION 1. Bail defined. — Bail is the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance.

SECTION 2. Condition of the bail. — The condition of the bail is that the defendant shall answer the complaint or information in the court in which it is filed or to which it may be transferred for trial, and after conviction, if the case is appealed to the Court of First Instance upon application supported by an undertaking or bail, that he will surrender himself in execution of such judgment as the appellate court may render, or that, in case the cause is to be tried anew or remanded for a new trial, he will appear in the court to which it may be remanded and submit himself to the orders and processes thereof.

SECTION 3. Offenses less than capital before conviction by the Court of First Instance. — After judgment by a justice of the peace and before conviction by the Court of First Instance, the defendant shall be admitted to bail as of right.

SECTION 4. Non-capital offenses after conviction by the Court of First Instance. — After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court.

SECTION 5. Capital offense defined. — A capital offense, as the term is used in this rule, is an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death.

SECTION 6. Capital offense not bailable. — No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong.

SECTION 7. Capital offense — Burden of proof . — On the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that evidence of guilty is strong is on the prosecution. The evidence presented during such hearings in the Court of First Instance shall be considered automatically reproduced at the trial, without need or retaking the same; but, upon motion of either party, the court may recall any witness for additional examination unless the witness is dead, outside of the Philippines or otherwise unable to testify.

SECTION 8. Notice of application to fiscal. — When admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the fiscal.

SECTION 9. Qualification of sureties. — The necessary qualifications of sureties to a bail bond shall be as follows:

(a) Each of them must be a resident householder or freeholder within the Philippines;

(b) In case there are only two sureties, each must be worth the amount specified in the undertaking over and above all just debts, obligations and property exempt from execution; but the court may allow two or more sureties to justify severally in amounts less than that expressed in the undertaking, if the entire sum justified to is equivalent to the whole amount of bail demanded.

SECTION 10. Justification of sureties. — The sureties must in all cases justify by affidavit taken before the judge, that they each possess the qualifications named in the preceding section, and each may be required to describe in the affidavit the property by which he proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by him and remaining undischarged, and all his other liabilities. The court may further examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper.

SECTION 11. Release on bail. — The defendant must be discharged by the court upon its acceptance of bail.

SECTION 12. Increase or reduction of bail. — After a defendant shall have been admitted to bail, the court may, upon good cause shown, either increase or reduce the amount of the same. If increased, the defendant may be committed to custody unless he gives bail in the increased amount he is called upon to furnish. A defendant held to answer on a criminal charge but who is released without bail on the filing of a complaint, may, at any subsequent stage of the proceedings whenever it may satisfactorily appear to the court that he is the author of the alleged offense, be required to give bail, or in lieu thereof may be committed to prison.

SECTION 13. Bail on appeal. — Bail upon appeal must conform in all respects as provided for in other cases of bail.

If the accused-appellant jumps bail or escapes confinement on appeal from the justice of the peace court to the Court of First Instance, the appeal shall be dismissed and the vacated judgment of the justice of the peace court shall be revived.

SECTION 14. Deposit of money as bail. — At any time after the amount of bail is fixed by order, the defendant, instead of giving bail, may deposit with the nearest collector of internal revenue, or provincial, city, or municipal treasurer the sum mentioned in the order, and upon delivering to the court a proper certificate of the deposit, must be discharged from custody. Money thus deposited, shall be applied to the payment of the fine and costs for which judgment may be given; and the surplus, if any, shall be returned to the defendant.

SECTION 15. Forfeiture of bail. — When the appearance of the defendant is required by the court, his sureties shall be notified to produce him before the court on a given date. If the defendant fails to appear as required, the bond is declared forfeited and the bondsmen are given thirty (30) days within which to produce their principal and to show cause why a judgment should not be rendered against them for the amount of their bond. Within the said period of thirty (30) days, the bondsmen (a) must produce the body of their principal or give the reason for its non-production; and (b) must explain satisfactorily why the defendant did not appear before the court when first required so to do. Failing in these two requisites, a judgment shall be rendered against the bondsmen.

SECTION 16. Discharge of sureties. — Upon application filed with the court and after due notice to the fiscal, the bail bond shall be cancelled and the sureties discharged from liability (a) where the sureties so request upon surrender of the defendant to the court; (b) where the defendant is re-arrested or ordered into custody on the same charge or for the same offense; (c) where the defendant is discharged by the court at any stage of the proceedings, or acquitted, or is convicted and surrendered to serve the sentence; and (d) where the defendant dies during the pendency of the action.

SECTION 17. Sureties may arrest defendant. — For the purpose of surrendering the defendant, the surety may arrest him, or on written authority endorsed on a certified copy of the undertaking may cause him to be arrested by any police officer or any other person of suitable age and discretion.

SECTION 18. No bail after final judgment. — No bail shall be allowed after the judgment has become final, or after the accused has commenced to serve sentence.

RULE 115

Rights of Defendant

SECTION 1. Rights of defendant at the trial. — In all criminal prosecutions the defendant shall be entitled:

(a) To be presumed innocent until the contrary is proved;

(b) To be present and defend in person and by attorney at every stage of the proceedings, that is, from the arraignment to the promulgation of the judgment;

(d) To testify as witness in his own behalf. But if a defendant offers himself as a witness he may be cross-examined as any other witness. His neglect or refusal to be a witness shall not in any manner prejudice or be used against him;

(e) To be exempt from being a witness against himself;

(f) To be confronted at the trial by, and to cross- examine the witness against him. Where the testimony of a witness for the prosecution has previously been taken down by question and answer in the presence of the defendant or his attorney, the defense having had an opportunity to cross-examine the witness, the testimony or deposition of the latter may be read, upon satisfactory proof to the court that he is dead or incapacitated to testify, or can not with due diligence be found in the Philippines;

(g) To have compulsory process issued to secure the attendance of witnesses in his behalf;

(h) To have a speedy and public trial;

(i) To have the right of appeal in all cases authorized by law.

RULE 116

Arraignment

SECTION 1. Arraignment. How made. — The defendant must be arraigned before the court in which the complaint or information has been filed unless the cause shall have been transferred elsewhere for trial. The arraignment must be made by the judge or clerk, and shall consist in reading the complaint or information to the defendant and delivering to him a copy thereof, including a list of witnesses, and asking him whether he pleads guilty or not guilty as charged. The prosecution may, however, call at the trial witnesses other than those named in the complaint or information.

SECTION 2. Presence of defendant on arraignment. — If the charge is for an offense within the jurisdiction of the Courts of First Instance, the defendant must be personally present at the arraignment, and if for a light offense triable by the justice of the peace or any other inferior courts of similar jurisdiction he may appear by attorney.

SECTION 3. Duty of court to inform defendant of his right to have attorney. — If the defendant appears without attorney, he must be informed by the court that it is his right to have attorney before being arraigned, and must be asked if he desires the aid of attorney. If he desires and is unable to employ attorney, the court must assign attorney de oficio to defend him. A reasonable time must be allowed for procuring attorney.

SECTION 4. Who may be appointed attorney de oficio. — The attorney so employed or assigned must be a duly authorized member of the bar. The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de oficio only such members of the bar as by reason of their experience and ability may, in the court's opinion, adequately defend the accused. But in localities were duly authorized members of the bar are not available, the justice of the peace court may in its discretion, admit or assign a person, resident in the province and of good repute for probity and ability, to aid the defendant in his defense, although the person so admitted or assigned be not a duly authorized member of the bar.

SECTION 5. Time for counsel de oficio to prepare for arraignment or trial. — Whenever an attorney de oficio is employed or assigned by the court to defend the accused either at the arraignment or at the trial, he shall be given a reasonable time to consult with the accused and prepare his defense before proceeding further in the case, which shall not be less than two (2) hours in case of arraignment and two (2) days in case of trial, but the court may, for good cause shown, shorten or extend the time.

SECTION 6. Bill of particulars. — Defendant may, at the time of or before arraignment, move for or demand a more definite statement or a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to plead or prepare for trial. The motion shall point out the defects complained of and the details desired.

RULE 117

Motion to Quash

SECTION 1. Time to move to quash or plead. — Upon being arraigned the defendant shall immediately, unless the court grants him further time, either move to quash the complaint or information or plead thereto, or do both. If he moves to quash, without pleading, and the motion is withdrawn or overruled he shall immediately plead.

SECTION 2. Motion to quash — Grounds. — The defendant may move to quash the complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the cause has no jurisdiction of the offense charged or of the person of the defendant;

(d) That it does not conform substantially to the prescribed form;

(e) That more than one offense is charged except in those cases in which existing laws prescribe a single punishment for various offenses;

(f) That the criminal action or liability has been extinguished;

(g) That it contains averments which, if true, would constitute a legal excuse or justification;

(h) That the defendant has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged;

(i) That the defendant is insane.

If the motion to quash is based on an alleged defect in the complaint or information which can be cured by amendment the court shall order the amendment to be made and shall overrule the motion.

SECTION 3. Motion to quash — Form and contents — Failure to state objection — Entry of record — Failure to record. — The motion to quash shall be in writing signed by the defendant or his attorney. It shall specify distinctly the ground of objection relied on and the court shall hear no objection other than that stated in the motion. It shall be entered of record but a failure to so enter it shall not affect the validity of any proceeding in the case.

SECTION 4. Contents of the motion to quash when based on extinction of criminal liability. — If the ground of the motion to quash is the extinction of criminal liability, the motion shall state whether by amnesty, pardon or marriage of the offender with the offended party in the cases where such pardon or marriage extinguishes criminal liability, prescription of the offense or the penalty, and the facts constituting such extinction.

SECTION 5. Contents of the motion to quash when based on former conviction or acquittal or former jeopardy. — If the ground of the motion to quash is former conviction or former jeopardy of conviction or former acquittal of the defendant of the same offense, the motion shall state the name under which the defendant was convicted or in jeopardy of conviction or acquitted, the name of the court in which he was convicted or in jeopardy or acquitted and the date and place of such conviction or jeopardy or acquittal.

SECTION 6. Trial of issues arising on a motion to quash. — The motion to quash shall be heard immediately on its being made unless, for good cause, the court postpone the hearing. All issues, whether of law or fact, which arise on a motion to quash shall be tried by the court.

SECTION 7. Effect of sustaining the motion to quash. — If the motion to quash is sustained the court may order that another information be filed. If such order is made the defendant, if in custody, shall remain so unless he shall be admitted to bail. If such order is not made or if having been made another information is not filed within a time to be specified in the order, or within such further time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom, unless he is in custody on some other charge.

SECTION 8. Order sustaining the motion to quash not a bar to another prosecution — Exception. — An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 2, subsections (f) and (h) of this rule.

SECTION 9. Former conviction or acquittal or former jeopardy. — When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

SECTION 10. Failure to move the quash — Effect of — Exception. — If the defendant does not move to quash the complaint or information before he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash except when the complaint or information does not charge an offense, or the court is without jurisdiction of the same. If, however, the defendant learns after he has pleaded or has moved to quash on some other ground that the offense for which he is now charged is an offense for which he has been pardoned, or of which he has been convicted or acquitted or been in jeopardy, the court may in its discretion entertain at any time before judgment a motion to quash on the ground of such pardon, conviction, acquittal or jeopardy.

RULE 118

Pleas

SECTION 1. Defendant's plea to the complaint or information. — The defendant shall plead to the complaint or information either by a plea of guilty or not guilty, submitted in open court, and entered of record; but a failure so to enter it shall not affect the validity of any proceeding in the cause.

SECTION 2. Refusal to plead. — If the defendant refuses to plead, a plea of not guilty shall be entered for him.

SECTION 3. Plea of guilty to be entered by defendant himself except in minor offenses. — A plea of guilty can be put in only by the defendant himself in open court, except where the charge is for a misdemeanor or a minor offense in which the penalty that may be imposed is a fine not exceeding two hundred pesos (P200.00), in which case the plea of guilty may be entered on defendant's behalf by his authorized counsel.

SECTION 4. Plea of guilty of lesser offense. — The defendant, with the consent of the court and of the fiscal, may plead guilty of any lesser offense than that charged which is necessarily included in the offense charged in the complaint or information.

SECTION 5. Plea of guilty — Determination of punishment. — Where the defendant pleads guilty to a complaint or information, if the court accepts the plea and has discretion as to the punishment for the offense, it may hear witnesses to determine what punishment shall be imposed.

SECTION 6. Plea of guilty — Withdrawal of . — The court may in its discretion at any time before sentence permit a plea of guilty to be withdrawn. If judgment of conviction has been entered thereon and the same has not become final, the court may set aside such judgment, and allow a plea of not guilty, or, with the consent of the fiscal, allow a plea of guilty of a lesser offense which is necessarily included in the charge.

SECTION 7. Time to prepare for trial. — After a plea of not guilty, except when the case is on appeal from the justice of the peace, the defendant is entitled to at least two (2) days to prepare for trial unless the court for good cause shown shall allow further time.

SECTION 8. Production or inspection of material evidence in possession of prosecution. — Upon motion of any defendant showing good cause therefor and upon notice to all the parties, the court in which an action is pending may in its discretion and to prevent unfair surprise, suppression, or alteration, order the prosecution to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any written statements given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or by other investigating officers, as well as of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not otherwise privileged, which constitute or contain evidence material to any matter involved in the action, and which are in the possession or under the control of the prosecution.

RULE 119

Trial

SECTION 1. Notice of trial. — Both parties shall be notified of the date set for the trial of the case at least two (2) days before such date.

SECTION 2. Continuance or postponement of the trial. — The court on the application of either party or on its own motion, may in its discretion for good cause postpone the trial of the case for such period of time as the ends of justice and the right of the defendant to a speedy trial require.

SECTION 3. Order of trial. — The plea of not guilty having been entered, the trial must proceed in the following order:

(a) The fiscal, on behalf of the People of the Philippines, must offer evidence in support of the charges.

(b) The defendant or his attorney may offer evidence in support of the defense.

(c) The parties may then respectively offer rebutting evidence only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question.

(d) When the introduction of evidence shall have been concluded, unless the case is submitted to the court without argument, the fiscal must open the argument, the attorney for the defense must follows, and the fiscal may conclude the same. The argument by either attorney may be oral or written, or partly written, but only the written arguments, or such portions of the same as may be in writing, shall be preserved in the record of the case.

SECTION 4. Application for examination of witness for defendant before trial. — When defendant has been held to answer for an offense, he may upon motion with notice to all other parties have witnesses conditionally examined in his behalf in the manner hereinafter provided, but not otherwise. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is about to leave the province, or so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial, or resides more than 100 kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that render him unable to attend or prevent him from attending, the trial. The motion shall be supported by affidavit of the defendant and such other evidence as the court may require.

SECTION 5. Examination of witness — How made. — If the court is satisfied that the examination is necessary, an order will be made directing that the witness be examined at a specified time and place, and that a copy of the order be served on the fiscal within a given time prior to that fixed for the examination. The examination will be taken before the judge ordering the same, or, if the order be granted by a court of superior jurisdiction, before an inferior tribunal to be designated in the order. The examination shall proceed notwithstanding the absence of the fiscal, if it appears that he was duly notified of the hearing. The testimony shall be reduced to writing.

SECTION 6. Bail to secure appearance of witness for prosecution. — When the judge of a Court of First Instance shall be satisfied, by proof or oath, that there is reason to believe that a material witness for the prosecution will not appear and testify when required, he may order the witness to give bail in such sum as he may deem proper for such appearance. Upon refusal to give bail, the court must commit him to prison until he complies or is legally discharged.

SECTION 7. Deposition of witness for the prosecution. — Where, however, it shall satisfactorily appear that the witness cannot procure bail, or is too sick or infirm to appear at the trial, as directed by the order of the court, or has to leave the Philippines with no definite date of returning thereto, he may forthwith be conditionally examined or his deposition immediately taken. Such examination or deposition must be by question and answer, in the presence of the defendant, or after reasonable notice to attend the examination or the taking of the deposition has been served on him, and will be conducted in the same manner as an examination at the trial. Failure or refusal on the part of the defendant to attend the examination or the taking of the deposition after notice hereinbefore provided, shall be considered a waiver. The statement or deposition of the witness thus taken may be admitted in behalf of or against the defendant. His testimony taken, the witness must thereupon be discharged, if he has been detained.

SECTION 8. Trial of joint defendants. — When two or more defendants are jointly charged with any offense, they shall be tried jointly, unless the court in its discretion upon motion of the fiscal or any defendant orders separate trials. In ordering separate trials, the court may order that one or more defendants be each separately tried and the others jointly tried, or may order that several defendants be jointly tried in one trial and the others jointly tried in another trial or trials, or may order that each defendant be separately tried.

SECTION 9. Discharge of one of several defendants to be witness for the prosecution. — When two or more persons are charged with the commission of a certain offense, the competent court, at any time before they have entered upon their defense, may direct one or more of them to be discharged with the latter's consent that he or they may be witnesses for the government when in the judgment of the court:

(a) There is absolute necessity for the testimony of the defendant whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said defendant;

(d) Said defendant does not appear to be the most guilty;

(e) Said defendant has not at any time been convicted of any offense involving moral turpitude.

SECTION 10. One of several defendants witness for co-defendant. — When two or more persons shall be included in the same charge, and the court shall be of the opinion in respect to a particular defendant that there is not sufficient evidence to put him on his defense, it must order him to be discharged before the evidence is closed, that he may be a witness for his co-defendant.

SECTION 11. Discharge of defendants operate as acquittal. — The order indicated in the two preceding sections shall amount to an acquittal of the defendant discharged and shall be a bar to future prosecution for the same offense, unless the defendant, in the case provided in section 9 fails or refuses to testify against his co-defendant.

SECTION 12. When mistake has been made in charging the proper offense. — When it appears at any time after trial has begun and before judgment is taken, that a mistake has been made in charging the proper offense, and the defendant cannot be convicted of the offense charged, nor of any other offense necessarily included therein, the defendant must not be discharged, if there appears to be a good cause to detain him in custody, but the court must commit him to answer for the proper offense, and may also require the witnesses to give bail for their appearance at the trial.

SECTION 13. Appointment of acting fiscal. — When a fiscal, his assistant or deputy shall be disqualified to act, for any of the reasons stated in section 1 of Rule 137, or any other reasons, the judge or the fiscal shall communicate with the Secretary of Justice in order that the latter may appoint an acting fiscal.

SECTION 14. Exclusion of the public. — The court may upon its own motion exclude the public from the court room if the evidence to be produced during the trial is of such a character as to be offensive to decency or public morals. The court may also, upon request of the defendant, exclude from the trial every person except the officers of the court and the attorney for the prosecution and defense.

SECTION 15. Consolidation of trials of related offenses. — Charges for offenses founded on the same facts, or which form or are a part of a series of offenses of the same or similar character may, in the discretion of the court, be tried jointly.

RULE 120

Judgment or Sentence

SECTION 1. Judgment defined. — The term judgment as used in this rule means the adjudication by the court that the defendant is guilty or is not guilty of the offense charged, and the imposition of the penalty provided for by law on the defendant, who pleads or is found guilty thereof.

SECTION 2. Form of judgment. — The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the defendant and upon which the judgment is based. If it is of conviction the judgment or sentence shall state (a) the legal qualification of the offense constituted by the acts committed by the defendant, and the aggravating or mitigating circumstances attending the commission thereof, if there is any; (b) the participation of the defendant in the commission of the offense, whether as principal, accomplice, or accessory after the fact; (c) the penalty imposed upon the defendant; and (d) the civil liability or damages caused by the wrongful act to be recovered from the defendant by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved.

SECTION 3. Judgment for two or more offenses. — When two or more offenses are charged in a single complaint or information, and the defendant fails to object to it before trial, the court may convict the defendant of as many offenses as are charged and proved, and impose on him the penalty for each and every one of them, setting out separately the findings of fact and law in each case subject, however, to the limitations provided for in the Revised Penal Code, as amended by Commonwealth Act No. 217.

SECTION 4. Judgment in case of variance between allegation and proof . — When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included or necessarily includes the offense proved, the defendant shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved.

SECTION 5. When an offense includes or is included in another. — An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter.

SECTION 6. Promulgation of judgment. — The judgment is promulgated by reading the judgment or sentence in the presence of the defendant and any judge of the court in which it was rendered. The defendant must be personally present if the conviction is for a grave offense; if for a light offense, the judgment may be pronounced in the presence of his attorney or representative. And when the judge is absent or outside of the province or city, his presence is not necessary and the judgment may be promulgated or read to the defendant by the clerk of court.

If the defendant is confined or detained in another province or city, the judgment of conviction may be promulgated by the judge of the Court of First Instance having jurisdiction over the place of confinement or detention upon the request of the court that rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the appeal bond.

SECTION 7. Modification of judgment. — A judgment of conviction may be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the defendant has expressly waived in writing his right to appeal.

SECTION 8. Entry of judgment. — After a judgment has become final, it shall be entered in accordance with Rule 36.

SECTION 9. Existing provisions governing suspension of sentence, probation and parole, not affected by this rule. — Nothing in this rule shall be construed as affecting any existing provision in the law governing suspension of sentence, probation or parole.

RULE 121

New Trial

SECTION 1. New trial. — At any time before a judgment of conviction becomes final, the court may on motion of the defendant, or on its own motion with the consent of the defendant, grant a new trial.

SECTION 2. Grounds for a new trial. — The court shall grant a new trial on any of the following grounds:

(a) That errors of law or irregularities have been committed during the trial prejudicial to the substantial rights of the defendant;

(b) That new and material evidence has been discovered which the defendant could not with reasonable diligence have discovered and produced at the trial, and which if introduced and admitted, would probably change the judgment.

SECTION 3. Form of motion and notice to the fiscal. — The motion for a new trial shall be in writing and filed with the court. It shall state the grounds on which it is based. If it is based on newly discovered evidence, it must be supported by the affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated copies of documents which it is proposed to introduce in evidence. Notice of the motion shall be given to the fiscal.

SECTION 4. Hearing on motion. — Where a motion for a new trial calls for the decision of any question of fact the court may hear evidence of such motion by affidavits or otherwise.

SECTION 5. Effect of granting a new trial. — The effect of granting a new trial are the following:

(a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence not affected by the commission of such errors and irregularities shall stand, but those affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence.

(b) When a new trial is granted on the ground of newly discovered evidence, the evidence already taken shall stand, and the newly discovered and such other evidence as the court may, in the interest of justice, allow to be introduced, shall be taken and considered together with the evidence already in the record.

(c) In all cases, the original judgment shall be set aside and a new judgment rendered, and the former shall not be used or referred to in evidence or argument on the new trial.

RULE 122

Appeal

SECTION 1. Appeal. — From all final judgments of the Court of First Instance or courts of similar jurisdiction, and in all cases in which the law now provides for appeals from said courts, an appeal may be taken to the Court of Appeals or to the Supreme Court as hereinafter prescribed.

SECTION 2. Who may appeal. — The People of the Philippines can not appeal if the defendant would be placed thereby in double jeopardy. In all other cases either party may appeal from a final judgment or ruling or from an order made after judgment affecting the substantial rights of the appellant.

SECTION 3. How appeal taken. — An appeal shall be taken by filing with the court in which the judgment or order was rendered a notice stating the appeal, and by serving a copy thereof upon the adverse party or his attorney.

SECTION 4. Publication of notice of appeal. — If personal service of the copy of the notice of appeal can not be made upon the adverse party or his counsel, the court may order the publication of the notice in some newspapers having general circulation in the vicinity, at least once each week for a period not exceeding thirty (30) days, and such publication shall be deemed equivalent to personal service.

SECTION 5. Notice waived. — The appellee may waive his right to a notice that an appeal has been taken. The appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require.

SECTION 6. When appeal to be taken. — An appeal must be taken within fifteen (15) days from promulgation or notice of the judgment or order appealed from. This period for perfecting an appeal shall be interrupted from the time a motion for new trial is filed until notice of the order overruling the motion shall have been served upon the defendant or his attorney.

SECTION 7. Transcribing and filing notes of stenographic reporter upon appeal. — When notice of appeal is filed by the defendant the trial court shall direct the stenographic reporter to transcribe his notes of the proceedings. When filed by the People of the Philippines the trial court shall direct the stenographic reporter to transcribe such portion of his notes of the proceedings as the fiscal shall specify in writing. The stenographer shall certify to the correctness of the notes and the transcript thereof which shall consist of the original and four copies and shall file the original and four copies of the transcript with the clerk without unnecessary delay.

In case the death penalty is imposed, the court shall order the transcription of the stenographic notes for transmittal to the Supreme Court, whether defendant has appealed or not.

SECTION 8. Transmission of papers to appellate court upon appeal. — Upon an appeal being taken, the clerk or judge of the court with whom the notice of appeal shall have been filed, must, within five (5) days after the filing of the notice, transmit to the clerk of the court to which the appeal is taken, the complete record in the case together with the notice of the appeal. The original and three copies of the transcript of the stenographic notes shall also be transmitted to the clerk of the appellate court together with the record, or as soon thereafter as possible. The other copy of the transcript shall remain in the lower court.

SECTION 9. Transmission of record in case of death penalty. — The records of all cases in which the death penalty shall have been imposed by any Court of First Instance, whether the defendant shall have appealed or not, shall be forwarded to the Supreme Court for review and judgment as law and justice shall dictate. The records of such cases shall be forwarded to the clerk of the Supreme Court within twenty (20) days, but not earlier than fifteen (15) days, after rendition of the sentence in the form prescribed by section 11 of Rule 41. The transcript shall also be forwarded without unnecessary delay as provided in section 12 of Rule 41.

SECTION 10. Appeal by any one of the several defendants. — When several defendants are tried jointly, any one or more of them may make an appeal, but those who do not join in the appeal shall not be affected thereby.

SECTION 11. Stay of execution when defendant appeals. — When the defendant appeals the execution of the sentence is stayed upon the taking of the appeal.

SECTION 12. Withdrawal of appeal. — Notwithstanding the perfection of the appeal, the Court of First Instance may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of the court to the appellate court as provided in section 8, in which case the judgment shall become final.

The Court of First Instance may also, in its discretion, allow the appellant from the judgment of the justice of the peace court or judge of a municipal court to withdraw his appeal, provided a motion to that effect is filed before the trial of the case on appeal, in which case the judgment of the justice of the peace or municipal court shall become final, the provisions of section 7, Rule 123, to the contrary notwithstanding, and the case shall be remanded to the court a quo for execution of the judgment.

SECTION 13. Appointment of an attorney de oficio for defendant on appeal. — It shall be the duty of the clerk of the trial court upon the presentation of a notice of appeal in a criminal case, to ascertain from the appellant, if he be confined in prison, whether he desires the Court of Appeals or the Supreme Court to appoint an attorney to defend him de oficio and to transmit with the record, upon a form to be prepared by the clerk of the appellate court, a certificate of compliance with this duty and of the response of the appellant to his inquiry.

RULE 123

Procedure in the Justice of the Peace or Municipal Courts

SECTION 1. Complaint. — Except as otherwise provided by law, criminal proceedings in justice of the peace or municipal courts must be commenced by information or complaint under oath setting forth the offense charged, with such particulars as to time, place, person and property as may be necessary to apprise the defendant of the offense charged, and to make answer thereto.

SECTION 2. Arraignment of defendant. — Defendant in justice of the peace or municipal courts shall be arraigned in the same manner as in the Court of First Instance, but it will not be necessary to furnish the defendant with a copy of the complaint or information unless he demands the same.

SECTION 3. Motion to quash or dismiss and pleas. — Defendant may enter the same pleas, and move to dismiss or quash the complaint or information on the same grounds as those allowed in the Court of First Instance, in so far as they are applicable. The motion to quash and the pleas may be oral but must be entered in the docket.

SECTION 4. When deposition of witness to be taken. — Whenever it appears to the justice of the peace or judge of the municipal court, in the trial of a criminal case that a material witness for the prosecution or for the defense has to leave the Philippines with no definite date of returning thereto and will not appear and testify when so required in the trial of the case by the corresponding Court of First Instance, the said justice of the peace or judge of the municipal court may forthwith order that the testimony of such witness be taken in writing by question and answer in the presence of the defendant or his attorney, which testimony shall be signed by the witness and certified to as correct by the said justice of the peace or judge of a municipal court.

SECTION 5. Appeal from judgment of the justice of the peace or municipal court. — The convicted party may appeal either orally or in writing from any final judgment of the justice of the peace or municipal court in a criminal case to the Court of First Instance within fifteen (15) days from the promulgation of the judgment. The period of appeal shall be interrupted from the date a motion for reconsideration or new trial is filed until notice of the order overruling the motion shall have been served upon the defendant or his attorney.

SECTION 6. Transmission of papers to the Court of First Instance, and fiscal. — Upon such notice being so filed or given, as provided for in the preceding section, the justice of the peace or judge of a municipal court shall within five (5) days forward to the Court of First Instance all original papers and a transcript of all docket entries in the cause. He shall also forward to the fiscal a brief statement of the substance of the testimony of witnesses testifying in the case. The provincial fiscal shall thereupon take charge of the cause in behalf of the prosecution.

SECTION 7. Trial de novo on appeal. — An appealed case shall be tried in all respects anew in the Court of First Instance as if it had been originally instituted in that court.

SECTION 8. Withdrawal of appeal. — Notwithstanding the provisions of the preceding section, the justice of the peace or the judge of the municipal court may before the papers and transcript have been forwarded to the Court of First Instance as provided in section 6, allow the appellant to withdraw his appeal, in which case the judgment of the justice of the peace or judge of the municipal court shall become final.

RULE 124

Procedure in the Court of Appeals

SECTION 1. Title of the case. — In all criminal cases brought to the Court of Appeals, the party bringing the case to the appellate court shall be called the "appellant" and the adverse party the "appellee," but the title of the case shall remain as it was below.

SECTION 2. Appointment of attorney de oficio for the defendant. — If it appears from the certificate of the clerk of the trial court transmitted in accordance with section 13 of Rule 122, (a) that the defendant is confined in prison, (b) without means to employ an attorney, and (c) desires to be defended de oficio, then the clerk of the Court of Appeals will designate a member of the bar to defend him, such designation to be made by strict rotation, unless otherwise directed by order of the court. cdt

A defendant-appellant not confined in prison, shall not be entitled to an attorney de oficio, unless the appointment of such attorney be requested in the appellate court within ten (10) days from receipt of notice from the clerk as provided in the next section, and the right thereto established by affidavit of poverty.

SECTION 3. When brief for appellant to be filed. — Within thirty (30) days from receipt by the appellant or his counsel of the notice from the clerk of the appellate court that the evidence, oral and documentary, is already attached to the record, the appellant shall file forty (40) copies of his brief with the clerk which shall be accompanied by proof of service of five (5) copies thereof upon the appellee.

SECTION 4. When brief for appellee to be filed. — Within thirty (30) days from the receipt of the brief of the appellant the appellee shall file forty (40) copies of his brief with the clerk which shall be accompanied by proof of service of five (5) copies thereof upon the appellant.

SECTION 5. Extension of time for filing briefs. — 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.

SECTION 6. Form of briefs. — Briefs must be printed, except when the defendant is represented by an attorney de oficio, in which case it shall be the duty of the attorney de oficio, whether for appellant or appellee, to file seven (7) legibly typewritten or mimeographed copies of the briefs, with proof of service of one copy thereof upon the adverse party.

SECTION 7. Contents of briefs. — The briefs in criminal cases shall have the same contents as provided in sections 16 and 17 of Rule 46. The decision or order appealed from shall be copied as an appendix to the appellant's brief.

SECTION 8. Dismissal of appeal for abandonment or failure to prosecute. — The appellate court may, upon motion of the appellee or on its own motion and notice to the appellant, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this rule, except in case the appellant is represented by an attorney de oficio.

The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if the appellant escapes from prison or confinement or flees to a foreign country during the pendency of the appeal.

SECTION 9. When appeal to be heard. — All appeals in criminal cases shall have precedence over other appeals and should be placed first upon the calendar for hearing. The appellate court shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties. The accused need not be present in court during the hearing of the appeal.

SECTION 10. Judgment not to be reversed or modified except for substantial error. — No judgment shall be reversed or modified unless the appellate court after an examination of all the appeal papers is of the opinion that error was committed which injuriously affected the substantial rights of the appellant.

SECTION 11. Power of appellate court on appeal. — Upon appeal from a judgment of the Court of First Instance, the appellate court may reverse, affirm, or modify the judgment and increase or reduce the penalty imposed by the trial court, remand the case to the Court of First Instance for new trial or retrial, or dismiss the case.

SECTION 12. 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 division of five Justices, and the concurrence of a majority of such division shall be necessary for the pronouncement of a judgment.

Whenever in any criminal case submitted to a division the said division should be of the opinion that the penalty of death or life imprisonment should be imposed, the said court shall refrain from entering judgment thereon and shall forthwith certify the case to the Supreme Court for final determination, as if the case had been brought before it on appeal.

SECTION 13. Motion for new trial. — At any time after the appeal from the lower court has been perfected and before the judgment of the appellate court convicting the accused becomes final, the latter may move for a new trial on the ground of newly discovered evidence material to his defense, the motion to conform to the provisions of section 3, Rule 121.

SECTION 14. Procedure when new trial ordered. — When a new trial is granted, it shall take place in the court from which the appeal was taken, and proceed as if it were granted by a Court of First Instance.

SECTION 15. Re-hearing or reconsideration. — Application for a re-hearing or reconsideration shall be made ex parte on motion setting forth the grounds on which they are made, and filed within fifteen (15) days after notice of the decision of the court. No oral argument thereon shall be allowed. If re-hearing is granted, the cause shall be re-heard in conformity with the requirements for the first hearing. The mittimus shall be stayed during the pendency of a motion for a re-hearing or reconsideration. More than one motion for a re-hearing or reconsideration shall not be filed in any case without express leave of the court.

SECTION 16. Judgment transmitted and filed in trial court. — When the judgment of the appellate court has been entered in the minutes, a certified copy of the entry shall be transmitted to the clerk of the court from which the appeal was taken, and shall be filed by him.

SECTION 17. Application of certain rules in civil to criminal cases. — The provisions of Rules 46 to 56 relating to procedure in the Court of Appeals and in the Supreme Court in original as well as appealed civil cases shall, in so far as they are applicable and not inconsistent with the provisions of this rule, be applied to criminal cases.

RULE 125

Procedure in the Supreme Court

SECTION 1. Procedure in the Supreme Court. — Unless otherwise provided by the Constitution or the law, the procedure in the Supreme Court in original as well as in appealed cases shall be the same as in the Court of Appeals.

SECTION 2. Review of decisions of the Court of Appeals. — The procedure for the review by the Supreme Court of decisions rendered by the Court of Appeals in criminal cases shall be the same as in civil cases.

SECTION 3. Decision if opinion is equally divided. — When the court en banc is equally divided in opinion or the necessary majority can not be had, the case shall be reheard, and if in re-hearing no decision is reached, the judgment of conviction of the lower court shall be reversed and the defendant acquitted.

RULE 126

Search and Seizure

SECTION 1. Search warrant defined. — A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge or a justice of the peace and directed to a peace officer, commanding him to search for personal property and bring it before the court.

SECTION 2. Personal property to be seized. — A search warrant may be issued for the search and seizure of the following personal property:

(a) Property subject of the offense;

(b) Property stolen or embezzled and other proceeds or fruits of the offense; and

SECTION 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

No search warrant shall issue for more than one specific offense.

SECTION 4. Examination of the applicant. — The judge or justice of the peace must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him.

SECTION 5. Issuance and form of search warrant. — If the judge or justice of the peace is thereupon satisfied of the existence of facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these rules.

SECTION 6. Right to break door or window to effect search. — The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein.

SECTION 7. Search of house, room, or premise to be made in presence of witness. — No search of a house, room, or any other premise shall be made except in the presence of at least one competent witness, resident of the neighborhood.

SECTION 8. Time of making search. — The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.

SECTION 9. Validity of search warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void.

SECTION 10. Receipt for the property seized. — The officer seizing property under the warrant must give a detailed receipt for the same to the person on whom or in whose possession it was found, or in the absence of any person, must, in the presence of at least one witness, leave a receipt in the place in which he found the seized property.

SECTION 11. Delivery of property and inventory thereof to court. — The officer must forthwith deliver the property to the justice of the peace or judge of the municipal court or of the Court of First Instance which issued the warrant, together with a true inventory thereof duly verified by oath.

SECTION 12. Search without warrant of person arrested. — A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense.

RULE 127

Attachment in Criminal Cases

SECTION 1. Attachment. — At the commencement of a criminal action or at any time thereafter, when the civil action for the recovery of civil liability arising from the offense charged is not expressly waived or the right to institute such civil action separately is not reserved, the offended party may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered from the defendant, in the following cases:

(a) When the defendant is about to depart from the Philippines;

(b) When the criminal action is based on a claim for money or property which has been embezzled or fraudulently misapplied or converted to the use of the defendant who is a public officer, or any 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;

(d) When the defendant resides outside the Philippines.

SECTION 2. Reference to Rule 57. — Sections two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen and twenty of Rule 57 of the Rules of Court governing attachment in civil actions shall apply to attachment provided for in the preceding section in so far as they may be applicable.

PART IV

RULES ON EVIDENCE

RULE 128

General Provisions

SECTION 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.

SECTION 2. Same rules in all cases. — The rules of evidence shall be the same in all courts and on all trials and hearings, whether civil or criminal.

SECTION 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not excluded by the these rules.

SECTION 4. Relevancy of evidence; collateral matters. — Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence; therefore, collateral matters shall not be allowed, except when they tend in any reasonable degree to establish the probability or improbability of the fact in issue.

RULE 129

What Need Not Be Proved

SECTION 1. Judicial notice. — The existence and territorial extent of states, their forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive, and judicial departments of the Philippines, the laws of nature, the measure of time, the geographical divisions and political history of the world, and all similar matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions, shall be judicially recognized by the court without the introduction of proof; but the court may receive evidence upon any of the subjects in this section stated, when it shall find it necessary for its own information, and may resort for its aid to appropriate books or documents of reference.

SECTION 2. Judicial admissions. — Admissions made by the parties in the pleadings, or in the course of the trial or other proceedings do not require proof and can not be contradicted unless previously shown to have been made through palpable mistake.

RULE 130

Rules of Admissibility

A. REAL EVIDENCE

SECTION 1. View of an object. — Whenever an object has such a relation to the fact in issue as to afford reasonable grounds of belief respecting the latter, such object may be exhibited to or viewed by the court, or its existence, situation, condition, or character proved by witnesses, as the court in its discretion may determine.

B. DOCUMENTARY EVIDENCE

1. Best Evidence Rule

SECTION 2. Original writing must be produced; exceptions. — There can be no evidence of a writing the contents of which is the subject of inquiry, other than the original writing itself, except in the following cases:

(a) When the original has been lost, destroyed, or cannot be produced in court;

(b) When the original is in the possession of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(d) When the original has been recorded in an existing record a certified copy of which is made evidence by law;

(e) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole.

SECTION 3. Certain copies regarded as originals. — When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are equally regarded as originals.

2. Secondary Evidence

SECTION 4. Secondary evidence when original is lost or destroyed. — When the original writing has been lost or destroyed, or cannot be produced in court, upon proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses.

SECTION 5. Secondary evidence when original is in adverse party's custody. — If the writing be in the custody of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the writing, the contents thereof may be proved as in the case of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by the adverse party.

SECTION 6. Party calling for writing not bound to offer it. — A party who calls for the production of a writing and inspects the same is not obliged to offer it as evidence.

3. Parol Evidence Rule

SECTION 7. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is to be considered as containing all such terms, and, therefore, there can be, between the parties and their successors-in-interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases:

(a) Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, or the validity of the agreement is put in issue by the pleadings;

(b) When there is an intrinsic ambiguity in the writing.

The term "agreement" includes wills.

4. Interpretation of Documents

SECTION 8. Interpretation of a writing according to its legal meaning. — The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise.

SECTION 9. Instrument construed so as to give effect to all provisions. — In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

SECTION 10. Interpretation according to intention; general and particular provisions. — In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.

SECTION 11. Interpretation according to circumstances. — For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret.

SECTION 12. Peculiar signification of terms. — The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.

SECTION 13. Written words control printed. — When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter.

SECTION 14. Experts and interpreters to be used in explaining certain writings. — When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language.

SECTION 15. Of two constructions, which preferred. — When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made.

SECTION 16. Construction in favor of natural right. — When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.

SECTION 17. Interpretation according to usage. — An instrument may be construed according to usage, in order to determine its true character.

C. TESTIMONIAL EVIDENCE

1. Qualification of Witnesses

SECTION 18. Witnesses; their qualifications. — Except as provided in the next succeeding section, all persons who, having organs of sense, can perceive, and perceiving, can make known their perception to others, may be witnesses. Neither parties nor other persons interested in the outcome of a case shall be excluded; nor those who have been convicted of crime; nor any person on account of his opinion on matters of religious belief.

SECTION 19. Physical disqualification. — The following persons cannot be witnesses:

(a) Those who are of unsound mind at the time of their production for examination, to such a degree as to be incapable of perceiving and making known their perception to others;

(b) Children who appear to the court to be of such tender age and inferior capacity as to be incapable of receiving correct impressions of the facts respecting which they are examined, or of relating them truly.

SECTION 20. Disqualification by reason of interest or relationship. — The following persons cannot testify as to matters in which they are interested, directly or indirectly, as herein enumerated:

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind;

(b) A husband can not be examined for or against his wife without her consent; nor a wife for or against her husband without his consent, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other;

SECTION 21. Privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

(a) The husband or the wife during the marriage or afterwards, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage;

(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the character of the patient;

(d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs;

(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

2. Admissions and Confessions

SECTION 22. Admissions of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.

SECTION 23. Admission by silence. — Any act or declaration made in the presence and within the observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, may be given in evidence against him.

SECTION 24. Offer to compromise not admission. — An offer of compromise is not an admission that anything is due, and is not admissible in evidence against the person making the offer. However, in criminal cases which are not allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

SECTION 25. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of another, and proceedings against one cannot affect another, except as hereinafter provided.

SECTION 26. Admission by co-partner or agent. — The acts or declaration of a partner or agent of the party within the scope of the partnership or agency and during its existence, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.

SECTION 27. Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

SECTION 28. Admission by privies. — Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former.

SECTION 29. Confession. — The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him.

3. Testimonial Knowledge

SECTION 30. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his own knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.

4. Exceptions to the Hearsay Rule

SECTION 31. Dying declaration. — The declaration of a dying person, made under a consciousness of an impending death, may be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.

SECTION 32. Declaration against interest. — The declaration made by a person deceased, or outside of the Philippines, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant's own interest, pecuniary or moral, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.

SECTION 33. Act or declaration about pedigree. — The act or declaration of a person deceased, or outside of the Philippines, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.

SECTION 34. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereto be also a member of the family. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree.

SECTION 35. Common reputation. — Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation.

SECTION 36. Part of the res gestae. — Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as a part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as a part of the res gestae.

SECTION 37. Entries in the course of business. — Entries made at, or near the time of the transactions to which they refer, by person deceased, outside of the Philippines or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.

SECTION 38. Entries in official records. — Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.

SECTION 39. Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.

SECTION 40. Learned treatises. — A published treatise, periodical or pamphlet on a subject of history, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject, testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.

SECTION 41. Testimony at a former trial. — The testimony of a witness deceased or out of the Philippines, or unable to testify, given in a former case between the same parties, relating to the same matter, the adverse party having had an opportunity to cross-examine him, may be given in evidence.

5. Opinion Rule

SECTION 42. General rule. — The opinion of a witness is not admissible, except as indicated in the following sections.

SECTION 43. Expert evidence. — The opinion of a witness regarding a question of science, art or trade, when he is skilled therein, may be received in evidence.

SECTION 44. Opinion of ordinary witnesses. — The opinion of a witness regarding the identity or handwriting of a person, when he has knowledge of the person or handwriting; the opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given, may be received as evidence.

SECTION 45. Unwritten law. — The oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a foreign country, as are also printed and published books of reports of decisions of the courts of the foreign country, if proved to be commonly admitted in such courts.

6. Character Evidence

SECTION 46. Moral character of parties in criminal cases. — The good moral character of an accused having reference to the moral trait involved in the offense charged, may be proved by him. Unless in rebuttal, the prosecution can not prove the bad moral character of the accused. The good or bad moral character of the offended person may be proved if it may establish in any reasonable degree the probability or improbability of the offense charged.

SECTION 47. Moral character of parties in civil cases. — Evidence of the moral character of a party in a civil case is not admissible unless the issue involved is character.

7. Conduct as Evidence

SECTION 48. Evidence of similar acts. Evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like.

SECTION 49. Unaccepted offer. An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected, equivalent to the actual production and tender of the money, instrument, or property.

RULE 131

Burden of Proof and Presumptions

SECTION 1. Burden of proof in civil cases. — Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation except when such negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the existence of a document the custody of which belongs to the opposite party. The burden of proof lies on the party who would be defeated if no evidence were given on either side.

SECTION 2. Burden of proof in criminal cases. — In criminal cases the burden of proof as to the offense charged lies on the prosecution. A negative fact alleged by the prosecution need not be proved unless it is an essential ingredient of the offense charged.

SECTION 3. Conclusive presumptions. — The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it;

(b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them;

SECTION 4. Quasi-conclusive presumptions of legitimacy. — (a) Children born after one hundred eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

(1) By the impotence of the husband;

(2) By the fact that the husband and the wife were living separately, in such a way that access was not possible;

(3) By the serious illness of the husband.

(b) The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

(c) Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth above, the child is presumed legitimate, unless it appears highly improbable, for ethnic reasons, that the child is that of the husband. For the purpose of this rule, the wife's adultery need not be proved in a criminal case.

(d) A child born within one hundred eighty days following the celebration of the marriage is conclusively presumed to be legitimate in any of these cases:

(1) If the husband, before the marriage, knew of the pregnancy of the wife;

(2) If he consented, being present, to the putting of his surname on the record of birth of the child;

(3) If he expressly or tacitly recognized the child as his own.

SECTION 5. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong;

(b) That an unlawful act was done with an unlawful intent;

(d) That a person takes ordinary care of his concerns;

(e) That evidence willfully suppressed would be adverse if produced;

(f) That money paid by one to another was due to the latter;

(g) That a thing delivered by one to another belonged to the latter;

(h) That an obligation delivered up to the debtor has been paid;

(i) That former rent or installments had been paid when a receipt for the later ones is produced;

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him;

(k) That a person in possession of an order on himself for the payment of money, or the delivery of anything, has paid the money or delivered the thing accordingly;

(l) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed:

(n) That a court, or judge acting as such , whether in the Philippines or elsewhere, was acting in the lawful exercise of his jurisdiction;

(o) That all the matters within an issue in a case were laid before the court and passed upon by it; and in like manner that all matters within a submission to arbitration were laid before the arbitrators and passed upon by them;

(p) That private transactions have been fair and regular;

(q) That the ordinary course of business has been followed;

(r) That there was a sufficient consideration for a written contract;

(s) That a negotiable instrument was given or indorsed for a sufficient consideration;

(t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in the regular course of the mail;

(w) Identity of person from identity of name;

(x) After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.

(y) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;

(z) That things have happened according to the ordinary course of nature and the ordinary habits of life;

(aa) That persons acting as copartners have entered into a contract of copartnership;

(bb) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

(cc) That a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate;

(dd) If the marriage is dissolved by the death of the husband, and the mother contracted another marriage within three hundred days following such death, these rules shall govern:

(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is disputably presumed to have been conceived during the former marriage, provided it be born within three hundred days after the death of the former husband;

(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is prima facie presumed to have been conceived during such marriage, even though it be born within three hundred days after the death of the former husband;

(ee) That a thing once proved to exist continues as long as is usual with things of that nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published;

(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest;

(jj) When two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is presumed to have survived;

2. If both were above the age of sixty, the younger is presumed to have survived;

3. If one is under fifteen and the other above sixty, the former is presumed to have survived;

4. If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived; if the sexes be the same, then the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is presumed to have survived.

(kk) If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time.

SECTION 6. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation.

RULE 132

Presentation of Evidence

A. EXAMINATION OF WITNESSES

SECTION 1. Testimony to be given in open court. — The testimony of witnesses shall be given orally in open court and under oath or affirmation.

SECTION 2. Testimony in superior courts to be reduced to writing. — In superior courts the testimony of each witness shall be taken in shorthand or stenotype, the name, residence, and occupation of the witness being stated, and all questions put to the witness and his answers thereto being included. If a question put is objected to and the objection is ruled on, the nature of the objection and the ground on which it was sustained or overruled must be stated, or if a witness declines to answer a question put, the fact and the proceedings taken thereon shall be entered in the record. A transcript of the record made by the official stenographer or stenotypist and certified as correct by him shall be prima facie a correct statement of such testimony and proceedings.

SECTION 3. Witness bound to answer. Exceptions. — A witness must answer questions pertinent to the matters at issue, though his answer may tend to establish a claim against him; but, unless otherwise provided by law, he need not give an answer which will have a tendency to subject him to punishment for an offense; nor need to give an answer which will have a direct tendency to degrade his character, unless it be to the very fact at issue or to a fact from which the fact at issue would be presumed. But a witness must answer to the fact of his previous conviction for an offense.

SECTION 4. Order in the examination of an individual witness. — The order in which an individual witness may be examined is as follows:

(a) Direct examination by the proponent;

(b) Cross-examination by the opponent;

(d) Re-cross-examination by the opponent.

SECTION 5. Direct examination; leading questions not allowed. — A question which suggests to the witness the answer which the examining party desires, is a leading question. On direct examination, leading questions are not allowed, except on preliminary matters or when there is difficulty in getting direct and intelligible answers from the witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute.

SECTION 6. Direct examination of unwilling or hostile witnesses. — A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject-matter of his examination in chief.

SECTION 7. Party may not impeach his own witness. — Subject to the provisions of the preceding section, the party producing a witness is not allowed to impeach his credit by evidence of bad character, but may contradict him by other evidence, and in the discretion of the court, in order to show that the witness has misled him into calling him to the stand, may also show that he has made at other times statements inconsistent with his present testimony.

SECTION 8. Cross-examination, its purpose and extent. Leading, but not misleading, questions, allowed. — Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matter stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. On cross-examination, leading, but not misleading, questions, are allowed.

SECTION 9. Right to inspect writing shown to witness. — Whenever a writing is shown to a witness, it may be inspected by the opposite party.

SECTION 10. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case the writing must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made; but such evidence must be received with caution.

SECTION 11. When part of transaction or writing given in evidence, the remainder admissible. — When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing necessary to its understanding may also be given in evidence.

SECTION 12. Re-direct examination; its purpose and extent. — After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion.

SECTION 13. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may re-cross- examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion.

SECTION 14. Recalling witness. — After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require.

SECTION 15. Impeachment of adverse party's witness. — A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense.

SECTION 16. How witness impeached by evidence of inconsistent statements. — Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so; allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.

SECTION 17. Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached.

SECTION 18. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined.

SECTION 19. Right of witness to protection. — It is the right of a witness to be protected from irrelevant; improper, or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests of justice require it; and to be examined only as to matters pertinent to the issue.

B. AUTHENTICATION AND PROOF OF DOCUMENTS

SECTION 20. Public and private writings. — The following writings are public:

(a) The written acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial and executive, whether of the Philippines, or of a foreign country;

(b) Public records, kept in the Philippines, of private writings.

All other writings are private.

SECTION 21. Private writing, its execution and authenticity, how proved. — Before any private writing may be received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the writing executed;

(b) By evidence of the genuineness of the handwriting of the maker; or

SECTION 22. Evidence of execution not necessary. — Where a private writing is more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its execution and authenticity need be given.

SECTION 23. Handwriting, how proved. — The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, and has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.

SECTION 24. Public documents as evidence. — Public instruments are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter.

SECTION 25. Proof of public or official record. — An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.

SECTION 26. What attestation of copy must state. — Whenever a copy of a writing is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.

SECTION 27. Irremovability of public record. — The record of a conveyance of real property, or any other record a transcript of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of the case pending or the court is sitting in the same building with such office.

SECTION 28. Public record of a private writing. — An authorized public record of a private writing may be proved by the original record, or by a copy thereof, attested by the legal keeper of the record, with an appropriate certificate that such officer has the custody.

SECTION 29. Proof of lack of record. — A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.

SECTION 30. How judicial record may be impeached. — Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings.

SECTION 31. Proof of real estate title, and other private writings, when acknowledged. — Every instrument conveying or affecting real property situated in the Philippines acknowledged or proved and certified as provided by law may, together with the certificate of the acknowledgment or proof, be read in evidence without further proof. In the case of other private writings, except last wills and testaments, acknowledged or proved and certified in the manner provided by law for the acknowledgment or proof of instruments conveying real property, the certificate of such acknowledgment or proof is prima facie evidence of the execution of the writing in the same manner as if it were a conveyance of real property.

SECTION 32. Alterations in writing, how to explain. — The party producing a writing as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he does that, he may give the writing in evidence, but not otherwise.

SECTION 33. Seal. — There shall be no difference in legal effect between sealed and unsealed private writings.

SECTION 34. Documentary evidence in an unofficial language. — Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Spanish, or the national language. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial.

C. OFFER AND OBJECTION

SECTION 35. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

SECTION 36. Objection. — Objection to evidence shall be made as soon as the grounds therefor shall become reasonably apparent. The grounds for the objections must be specified.

SECTION 37. Repetition of objection unnecessary. — A single objection to a class of evidence when first offered is sufficient, and need not be constantly repeated when subsequent offers of the same class of evidence are made.

SECTION 38. Ruling. — The ruling of the court must be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling.

RULE 133

Weight and Sufficiency of Evidence

SECTION 1. Preponderance of evidence, how determined. — In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greatest number.

SECTION 2. Proof beyond reasonable doubt. — In a criminal case, the defendant is entitled to an acquittal, unless his guilt is shown beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

SECTION 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti.

SECTION 4. Evidence necessary in treason cases. — No person charged with treason shall be convicted unless on the testimony of two witnesses to the same overt act, or on confession in open court.

SECTION 5. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

SECTION 6. Power of the court to stop further evidence. — The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution.

SECTION 7. Evidence on motion. — When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

RULE 134

Perpetuation of Testimony

SECTION 1. Petition. — A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the province of the residence of any expected adverse party.

SECTION 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony.

SECTION 3. Notice and service. — The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of hearing the notice shall be served in the manner provided for service of summons.

SECTION 4. Order and examination. — If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination, and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 24 before the hearing.

SECTION 5. Reference to court. — For the purpose of applying Rule 24 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

SECTION 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 24.

SECTION 7. Depositions pending appeal. — If an appeal has been taken from a judgment of the Court of First Instance or before the taking of an appeal if the time therefor has not expired, the Court of First Instance in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said Court of First Instance for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall show (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the Court of First Instance.

PART V

LEGAL ETHICS

RULE 135 ^*

Powers and Duties of Courts and Judicial Officers

SECTION 1. Courts always open; justice to be promptly and impartially administered. — Courts of justice shall always be open, except on legal holidays, for the filing of any pleading, motion or other papers, for the trial of cases, hearing of motions, and for the issuance of orders or rendition of judgments. Justice shall be impartially administered without unnecessary delay.

SECTION 2. Publicity of proceedings and records. — The sitting of every court of justice shall be public, but any court may, in its discretion, exclude the public when the evidence to be adduced is of such nature as to require their exclusion in the interest of morality or decency. The records of every court of justice shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records, unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency.

SECTION 3. Process of superior courts enforced throughout the Philippines. — Process issued from a superior court in which a case is pending to bring in a defendant, or for the arrest of any accused person, or to execute any order or judgment of the court, may be enforced in any part of the Philippines. cdrep

SECTION 4. Process of inferior courts. — The process of inferior court shall be enforceable within the province where the municipality or city lies. It shall not be served outside the boundaries of the province in which they are comprised except with the approval of the judge of first instance of said province, and only in the following cases:

(a) When an order for the delivery of personal property lying outside the province is to be complied with;

(b) When an attachment of real or personal property lying outside the province is to be made;

(d) When the place where the case has been brought is that specified in a contract in writing between the parties, or is the place of the execution of such contract as appears therefrom.

Writs of execution issued by inferior courts may be enforced in any part of the Philippines without any previous approval of the judge of first instance.

Criminal process may be issued by a justice of the peace or other inferior court, to be served outside his province, when the district judge, or in his absence the provincial fiscal, shall certify that in his opinion the interests of justice require such service.

SECTION 5. Inherent powers of courts. — Every court shall have power:

(a) To preserve and enforce order in its immediate presence;

(b) To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority;

(c) To compel obedience to its judgments, orders and processes, and to the lawful orders of a judge out of court, in a case pending therein;

(d) To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it, in every manner appertaining thereto;

(e) To compel the attendance of persons to testify in a case pending therein;

(f) To administer or cause to be administered oaths in a case pending therein, and in all other cases where it may be necessary in the exercise of its powers;

(g) To amend and control its process and orders so as to make them conformable to law and justice;

(h) To authorize a copy of a lost or destroyed pleading or other paper to be filed and used instead of the original, and to restore, and supply deficiencies in its records and proceedings.

SECTION 6. Means to carry jurisdiction into effect. — When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules.

SECTION 7. Trials and hearings; orders in chambers. — All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials.

SECTION 8. Interlocutory orders out of province. — A judge of first instance shall have power to hear and determine, when within the district though without his province, any interlocutory motion or issue after due and reasonable notice to the parties. On the filing of a petition for the writ of habeas corpus or for release upon bail or reduction of bail in any Court of First Instance, the hearings may be had at any place in the judicial district which the judge shall deem convenient.

SECTION 9. Signing judgments out of province. — Whenever a judge appointed or assigned in any province or branch of a Court of First Instance in a province shall leave the province by transfer or assignment to another court of equal jurisdiction, or by expiration of his temporary assignment, without having decided a case totally heard by him and which was argued or an opportunity given for argument to the parties or their counsel, it shall be lawful for him to prepare and sign his decision in said case anywhere within the Philippines. He shall send the same by registered mail to the clerk of the court where the case was heard or argued to be filed therein as of the date when the same was received by the clerk, in the same manner as if he had been present in court to direct the filing of the judgment. If a case has been heard only in part, the Supreme Court, upon petition of any of the parties to the case and the recommendation of the respective district judge, may also authorize the judge who has partly heard the case, if no other judge had heard the case in part, to continue hearing and to decide said case notwithstanding his transfer or appointment to another court of equal jurisdiction.

(*As amended)

RULE 136 ^*

Court Record and General Duties of Clerks and Stenographers

SECTION 1. Arms and great seal of court. — The arms and great seal of the Supreme Court are these:

"Arms — Plaeways of two pieces of azure and gules superimposed a balance or center with two tablets containing the commandments of God or on either side; a chief argent with three mullets or equidistant from each other, in point of honor, avoid argent over all the sun, rayonnant or with eight major and minor rays.

"The great seal of the Supreme Court shall be circular in form, with the arms as described in the last preceding paragraph and scroll argent with the following inscription: Lex Populusque, and surrounding the whole a garland of laurel leaves in or; around the garland the text 'Supreme Court, Republic of the Philippines.'

"The arms and seal of the Court of Appeals shall be the same as that of the Supreme Court with the only difference that in the seal shall bear around the garland the text 'Court of Appeals, Republic of the Philippines.'

"The arms and seal of the Court of First Instance shall be the same as that of the Supreme Court with the only difference that the seal shall bear around the garland the text 'Court of First Instance, the name of the province, Republic of the Philippines.'

SECTION 2. Style of process. — Process shall be under the seal of the court from which it issues, be styled "Republic of the Philippines, Province or City of _________" to be signed by the clerk and bear date the day it actually issued.

SECTION 3. Clerk's office. — The clerk's office, with the clerk or his deputy in attendance, shall be open during business hours on all days except Sundays and legal holidays. The clerk of the Supreme Court and that of the Court of Appeals shall keep office at Manila and all papers authorized or required to be filed therein shall be filed at Manila.

SECTION 4. Issuance by clerk of process. — The clerk of a superior court shall issue under the seal of the court all ordinary writs and process incident to pending cases, the issuance of which does not involve the exercise of functions appertaining to the court or judge only; and may, under the direction of the court or judge, make out and sign letters of administration, appointments of guardians, trustees, and receivers, and all writs and process issuing from the court.

SECTION 5. Duties of the clerk in the absence or by direction of the judge. — In the absence of the judge, the clerk may perform all the duties of the judge in receiving applications, petitions, inventories, reports, and the issuance of all orders and notices that follow as a matter of course under these rules, and may also, when directed so to do by the judge, receive the accounts of executors, administrators, guardians, trustees, and receivers, and all evidence relating to them, or to the settlement of the estates of deceased persons, or to guardianships, trusteeships, or receiverships, and forthwith transmit such reports, accounts, and evidence to the judge, together with his findings in relation to the same, if the judge shall direct him to make findings and include the same in his report.

SECTION 6. Clerk shall receive papers and prepare minutes. — The clerk of each superior court shall receive and file all pleadings and other papers properly presented, endorsing on each such paper the time when it was filed, and shall attend all of the sessions of the court and enter its proceedings for each day in a minute book to be kept by him.

SECTION 7. Safekeeping of property. — The clerk shall safely keep all records, papers, files, exhibits and public property committed to his charge, including the library of the court, and the seals and furniture belonging to his office.

SECTION 8. General docket. — The clerk shall keep a general docket, each page of which shall be numbered and prepared for receiving all the entries in a single case, and shall enter therein all cases, numbered consecutively in the order in which they were received, and, under the heading of each case and a complete title thereof, the date of each paper filed or issued, of each order or judgment entered, and of each other step taken in the case so that by reference to a single page the history of the case may be seen.

SECTION 9. Judgment and entries book. — The clerk shall keep a judgment book containing a copy of each judgment rendered by the court in order of its date, and a book of entries of judgments containing at length in chronological order entries of all final judgments or orders of the court.

SECTION 10. Execution book. — The clerk shall keep an execution book in which he or his deputy shall record at length in chronological order each execution, and the officer's return thereon, by virtue of which real property has been sold.

SECTION 11. Certified copies. — The clerk shall prepare, for any person demanding the same, a copy certified under the seal of the court of any paper, record, order, judgment, or entry in his office, proper to be certified, for the fees prescribed by these rules.

SECTION 12. Other books and duties. — The clerk shall keep such other books and perform such other duties as the court may direct.

SECTION 13. Index; separating cases. — The general docket, judgment book, entries book and execution book shall each be indexed in alphabetical order in the names of the parties, and each of them. If the court so directs, the clerk shall keep two or more of either or all of the books and dockets above mentioned, separating civil from criminal cases, or actions from special proceedings, or otherwise keeping cases separated by classes as the court shall deem best.

SECTION 14. Taking of record from the clerk's office. — No record shall be taken from the clerk's office without an order of the court except as otherwise provided by these rules. However, the Solicitor General or any of his assistants, the provincial fiscal or his deputy, and the attorneys de oficio shall be permitted, upon proper receipt, to withdraw from the clerk's office the record of any cases in which they are interested.

SECTION 15 ^*. Unprinted papers. — All printed documents presented to the superior courts of the Philippines shall be written on paper of good quality twelve and three eights inches in length by eight and one-half inches in width, leaving a margin at the top and at the left-hand side not less than one inch and one-half in width. Papel catalan, of the first and second classes, legal cap, and typewriting paper of such weight as not to permit the writing of more than one original and two carbons at one time, will be accepted, provided that such paper is of the required size and of good quality. Documents written with ink shall not be of more than twenty-five lines to one page. Typewritten documents shall be written double-spaced. One side only of the page will be written upon, and the different sheets will be sewn together, firmly, by five stitches in the left-hand border in order to facilitate the formation of the expediente, and they must not be doubled.

SECTION 16 ^**. Printed papers. — All papers required by these rules to be printed shall be printed with black ink on unglazed paper, with pages six inches in width by nine inches in length, in pamphlet form. The type used shall not be smaller than twelve point. The paper used shall be of sufficient weight to prevent the printing upon one side from being visible upon the other.

SECTION 17. Stenographer. — It shall be the duty of the stenographer who has attended a session of a court either in the morning or in the afternoon, to deliver to the clerk of court, immediately at the close of such morning or afternoon session, all the notes he has taken, to be attached to the record of the case; and it shall likewise be the duty of the clerk to demand that the stenographer comply with said duty. The clerk of court shall stamp the date on which such notes are received by him. When such notes are transcribed the transcript shall be delivered to the clerk, duly initialed on each page thereof, to be attached to the record of the case.

Whenever requested by a party, any statement made by a judge of first instance, or by a commissioner, with reference to a case being tried by him, or to any of the parties thereto, or to any witness or attorney, during the hearing of such case, shall be made of record in the stenographic notes.

SECTION 18. Docket and other records of inferior courts. — Every justice of the peace and municipal judge shall keep a well-bound book labeled "docket," in which he shall enter for each case:

(a) The title of the case including the names of all the parties;

(b) The nature of the case, whether civil or criminal, and if the latter, the offense charged;

(c) The date of issuing preliminary and intermediate process including orders of arrest and subpoenas, and the date and nature of the return thereon;

(d) The date of the appearance or default of the defendant;

(e) The date of presenting the plea, answer, or motion to quash, and the nature of the same;

(f) The minutes of the trial, including the date thereof and of all adjournments;

(g) The names and addresses of all witnesses;

(h) The date and nature of the judgment, and, in a civil case, the relief granted;

(i) An itemized statement of the costs;

(j) The date of any execution issued, and the date and contents of the return thereon;

(k) The date of any notice of appeal filed, and the name of the party filing the same.

A municipal (or city) judge may keep two dockets, one for civil and one for criminal cases. He shall also keep all the pleadings and other papers and exhibits in cases pending in his court, and shall certify copies of his docket entries and other records proper to be certified, for the fees prescribed by these rules. It shall not be necessary for the municipal (or city) judge to reduce to writing the testimony of witnesses, except that of the accused in preliminary investigations.

SECTION 19. Entry on docket of inferior courts. — Each municipal (or city) judge shall, at the beginning and in front of all his entries in his docket, make and subscribe substantially the following entry:

"A docket of proceedings in cases before _________, municipal judge (or city judge) of the municipality (or city) of ________, in the province of __________, Republic of the Philippines.

Witness my signature,

________________________________

"Municipal Judge (or City Judge)"

(*As amended)

RULE 137

Disqualification of Judicial Officers

SECTION 1. Disqualification of judges. — No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

SECTION 2. Objection that judge disqualified, how made and effect. — If it be claimed that an official is disqualified from sitting as above provided, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no appeal or stay shall be allowed from, or by reason of, his decision in favor of his own competency, until after final judgment in the case.

RULE 138 ^*

Attorneys and Admission to Bar

SECTION 1. Who may practice law. — Any person heretofore duly admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions of this rule, and who is in good and regular standing, is entitled to practice law.

SECTION 2. Requirements for all applicants for admission to the bar. — Every applicant for admission as a member of the bar must be a citizen of the Philippines, at least twenty-one years of age, of good moral character, and a resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the Philippines.

SECTION 3. Requirements for lawyers who are citizens of the United States of America. — Citizens of the United States of America who, before July 4, 1946, were duly licensed members of the Philippine Bar, in active practice in the courts of the Philippines and in good and regular standing as such may, upon satisfactory proof of those facts before the Supreme Court, be allowed to continue such practice after taking the following oath of office:

"I, ____________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God."

SECTION 4. Requirements for applicants from other jurisdictions. — Applicants for admission who, being Filipino citizens, are enrolled attorneys in good standing in the Supreme Court of the United States or in any circuit court of appeals or district court therein, or in the highest court of any State or Territory of the United States, and who can show by satisfactory certificates that they have practiced at least five years in any of said courts, that such practice began before July 4, 1946, and that they have never been suspended or disbarred, may, in the discretion of the Court, be admitted without examination.

SECTION 5. Additional requirements for other applicants. — All applicants for admission other than those referred to in the two preceding sections shall, before being admitted to the examination, satisfactorily show that they have regularly studied law for four years, and successfully completed all prescribed courses, in a law school or university, officially approved and recognized by the Secretary of Education. The affidavit of the candidate, accompanied by a certificate from the university or school of law, shall be filed as evidence of such facts, and further evidence may be required by the court.

No applicant shall be admitted to the bar examinations unless he has satisfactorily completed the following courses in a law school or university duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics.

SECTION 6. Pre-Law. — No applicant for admission to the bar examination shall be admitted unless he presents a certificate that he has satisfied the Secretary of Education that, before he began the study of law, he had pursued and satisfactorily completed in an authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in arts or sciences with any of the following subjects as major or field of concentration: political science, logic, english, spanish, history and economics.

SECTION 7. Time for filing proof of qualifications. — All applicants for admission shall file with the clerk of the Supreme Court the evidence required by section 2 of this rule at least fifteen (15) days before the beginning of the examination. If not embraced within sections 3 and 4 of this rule they shall also file within the same period the affidavit and certificate required by section 5, and if embraced within sections 3 and 4 they shall exhibit a license evidencing the fact of their admission to practice, satisfactory evidence that the same has not been revoked, and certificates as to their professional standing. Applicants shall also file at the same time their own affidavits as to their age, residence, and citizenship.

SECTION 8. Notice of applications. — Notice of applications for admission shall be published by the clerk of the Supreme Court in newspapers published in Pilipino, English and Spanish, for at least ten (10) days before the beginning of the examination.

SECTION 9. Examination; subjects. — Applicants, not otherwise provided for in sections 3 and 4 of this rule, shall be subjected to examinations in the following subjects: Civil Law; Labor and Social Legislation; Mercantile Law; Criminal Law; Political Law (Constitutional Law, Public Corporations, and Public Officers); International Law (Private and Public); Taxation; Remedial Law (Civil Procedure, Criminal Procedure, and Evidence); Legal Ethics and Practical Exercises (in Pleading and Conveyancing).

SECTION 10. Bar examination, by questions and answers, and in writing. — Persons taking the examination shall not bring papers, books or notes into the examination rooms. The questions shall be the same for all examinees and a copy thereof, in English or Spanish, shall be given to each examinee. Examinees shall answer the questions personally without help from anyone.

Upon verified application made by an examinee stating that his penmanship is so poor that it will be difficult to read his answers without much loss of time, the Supreme Court may allow such examinee to use a typewriter in answering the questions. Only noiseless typewriters shall be allowed to be used.

The committee of bar examiners shall take such precautions as are necessary to prevent the substitution of papers or commission of other frauds. Examinees shall not place their names on the examination papers. No oral examination shall be given.

SECTION 11. Annual examination. — Examinations for admission to the bar of the Philippines shall take place annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committee on bar examiners. The subjects shall be distributed as follows: First day: Political and International Law (morning) and Labor and Social Legislation (afternoon); Second day: Civil Law (morning) and Taxation (afternoon); Third day: Mercantile Law (morning) and Criminal Law (afternoon); Fourth day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon).

SECTION 12. Committee of examiners. — Examinations shall be conducted by a committee of bar examiners to be appointed by the Supreme Court. This committee shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve for one year, and eight members of the bar of the Philippines, who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports.

SECTION 13. Disciplinary measures. — No candidate shall endeavor to influence any member of the committee, and during examination the candidates shall not communicate with each other nor shall they give or receive any assistance. The candidate who violates this provision, or any other provision of this rule, shall be barred from the examination, and the same to count as a failure against him, and further disciplinary action, including permanent disqualification, may be taken in the discretion of the court.

SECTION 14. Passing average. — In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 per cent; Labor and Social Legislation, 10 per cent; Mercantile Law, 15 per cent; Criminal Law; 10 per cent; Political and International Law, 15 per cent; Taxation, 10 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent.

SECTION 15. Report of the committee; filing of examination papers. — Not later than February 15th after the examination, or as soon thereafter as may be practicable, the committee shall file its reports on the result of such examination. The examination papers and notes of the committee shall be filed with the clerk and may there be examined by the parties in interest, after the court has approved the report.

SECTION 16. Failing candidates to take review course. — Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year review classes as well as attended a pre-bar review course in a recognized law school.

The professors of the individual review subjects attended by the candidates under this rule shall certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject.

SECTION 17. Admission and oath of successful applicants. — An applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribe before the Supreme Court the corresponding oath of office.

SECTION 18. Certificate. — The Supreme Court shall thereupon admit the applicant as a member of the bar for all the courts of the Philippines, and shall direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the clerk of court, which certificate shall be his authority to practice.

SECTION 19. Attorneys' roll. — The clerk of the Supreme Court shall keep a roll of all attorneys admitted to practice, which roll shall be signed by the person admitted when he receives his certificate.

SECTION 20. Duties of attorneys. — It is the duty of an attorney:

(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines;

(b) To observe and maintain the respect due to the courts of justice and judicial officers;

(c) To counsel or maintain such actions or proceedings only as appear to him to be just, and such defenses only as he believes to be honestly debatable under the law;

(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;

(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval;

(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;

(g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest;

(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;

(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.

SECTION 21. Authority of attorney to appear. — An attorney is presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client, but the presiding judge may, on motion of either party and on reasonable grounds therefor being shown, require any attorney who assumes the right to appear in a case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may thereupon make such order as justice requires. An attorney willfully appearing in court for a person without being employed, unless by leave of the court, may be punished for contempt as an officer of the court who has misbehaved in his official transactions.

SECTION 22. Attorney who appears in lower court presumed to represent client on appeal. — An attorney who appears de parte in a case before a lower court shall be presumed to continue representing his client on appeal, unless he files a formal petition withdrawing his appearance in the appellate court.

SECTION 23. Authority of attorneys to bind clients. — Attorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing, and in taking appeals, and in all matters of ordinary judicial procedure. But they cannot, without special authority, compromise their client's litigation, or receive anything in discharge of a client's claim but the full amount in cash.

SECTION 24. Compensation of attorneys; agreement as to fees. — An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable.

SECTION 25. Unlawful retention of client's funds; contempt. — When an attorney unjustly retains in his hands money of his client after it has been demanded, he may be punished for contempt as an officer of the Court who has misbehaved in his official transactions; but proceedings under this section shall not be a bar to a criminal prosecution.

SECTION 26. Change of attorneys. — An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party.

A client may at any time dismiss his attorney or substitute another in his place, but if the contract between client and attorney has been reduced to writing and the dismissal of the attorney was without justifiable cause, he shall be entitled to recover from the client the full compensation stipulated in the contract. However, the attorney may, in the discretion of the court, intervene in the case to protect his rights. For the payment of his compensation the attorney shall have a lien upon all judgments for the payment of money, and executions issued in pursuance of such judgment, rendered in the case wherein his services had been retained by the client.

SECTION 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. — A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

SECTION 28. Suspension of attorney by the Court of Appeals or a Court of First Instance. — The Court of Appeals or a Court of First Instance may suspend an attorney from practice for any of the causes named in the last preceding section, and after such suspension such attorney shall not practice his profession until further action of the Supreme Court in the premises.

SECTION 29. Upon suspension by Court of Appeals or Court of First Instance, further proceedings in Supreme Court. — Upon such suspension, the Court of Appeals or the Court of First Instance shall forthwith transmit to the Supreme Court a certified copy of the order or suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the attorney from his office as such, as the facts warrant.

SECTION 30. Attorney to be heard before removal or suspension. — No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunity upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte.

SECTION 31. Attorneys for destitute litigants. — A court may assign an attorney to render professional aid free of charge to any party in a case, if upon investigation it appears that the party is destitute and unable to employ an attorney, and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It shall be the duty of the attorney so assigned to render the required service, unless he is excused therefrom by the court for sufficient cause shown. cdasia

SECTION 32. Compensation for attorneys de oficio. — Subject to availability of funds as may be provided by law the court may, in its discretion, order an attorney employed as counsel de oficio to be compensated in such sum as the court may fix in accordance with section 24 of this rule. Whenever such compensation is allowed, it shall not be less than thirty pesos (P30.00) in any case, nor more than the following amounts: (1) Fifty pesos (P50.00) in light felonies; (2) One hundred pesos (P100.00) in less grave felonies; (3) Two hundred pesos (P200.00) in grave felonies other than capital offenses; (4) Five hundred pesos (P500.00) in capital offenses.

SECTION 33. Standing in court of persons authorized to appear for Government. — Any official or other person appointed or designated in accordance with law to appear for the Government of the Philippines shall have all the rights of a duly authorized member of the bar to appear in any case in which said government has an interest direct or indirect.

SECTION 34. By whom litigation conducted. — In the court of a justice of the peace a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.

SECTION 35. Certain attorneys not to practice. — No judge or other official or employee of the superior courts or of the Office of the Solicitor General, shall engage in private practice as a member of the bar or give professional advice to clients.

SECTION 36. Amicus curiae. — Experienced and impartial attorneys may be invited by the Court to appear as amici curiae to help in the disposition of issues submitted to it.

SECTION 37. Attorneys' liens. — An attorney shall have a lien upon the funds, documents and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements.

(*As amended)

RULE 138-A ^*

Law Student Practice Rule

SECTION 1. Conditions for student practice. — A law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school.

SECTION 2. Appearance. — The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.

SECTION 3. Privileged communications. — The Rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic.

SECTION 4. Standards of conduct and supervision. — The law student shall comply with the standards of professional conduct governing members of the Bar. Failure of an attorney to provide adequate supervision of student practice may be a ground for disciplinary action. (Circular No. 19, dated December 19, 1986).

RULE 139

Disbarment or Suspension of Attorneys

SECTION 1. Motion or complaint. — Proceedings for the removal or suspension of attorneys may be taken by the Supreme Court on its own motion or upon the complaint under oath of another in writing. The complaint shall set out distinctly, clearly, and concisely the facts complained of, supported by affidavits, if any, of persons having personal knowledge of the facts therein alleged and shall be accompanied with copies of such documents as may substantiate said facts.

SECTION 2. Service or dismissal. — If the complaint appears to merit action, a copy thereof shall be served upon the respondent, requiring him to answer the same within ten (10) days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Supreme Court that the complaint is not meritorious, the same shall be dismissed.

SECTION 3. Investigation by Solicitor General. — Upon the issues raised by the complaint and answer, or upon failure of the respondent to answer, the case shall be referred to the Solicitor General for investigation to determine if there is sufficient ground to proceed with the prosecution of the respondent. In the investigation conducted by the Solicitor General, the respondent shall be given full opportunity to defend himself, to produce witnesses in his own behalf, and to be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte.

SECTION 4. Report of the Solicitor General. — Based upon the evidence adduced at the hearing, if the Solicitor General finds no sufficient ground to proceed against the respondent, he shall submit a report to the Supreme Court containing his findings of fact and conclusion, whereupon the respondent shall be exonerated unless the court orders differently.

SECTION 5. Complaint of the Solicitor General. Answer of respondent. — If the Solicitor General finds sufficient ground to proceed against the respondent, he shall file the corresponding complaint, accompanied with all the evidence introduced in his investigation, with the Supreme Court, and the respondent shall be served by the clerk of the Supreme Court with a copy of the complaint with direction to answer the same within fifteen (15) days.

SECTION 6. Evidence produced before Solicitor General available. — The evidence produced before the Solicitor General in his investigation may be considered by the Supreme Court in the final decision of the case, if the respondent had an opportunity to object and cross-examine. If in the respondent's answer no statement is made as to any intention of introducing additional evidence, the case shall be set down for hearing, upon the filing of such answer or upon the expiration of the time to file the same.

SECTION 7. Commissioner to investigate and recommend. Rules of evidence. — Upon receipt of the respondent's answer, wherein a statement is made as to his desire to introduce additional evidence, the case shall be referred to a commissioner who, in the discretion of the court, may be the clerk of the Supreme Court, a judge of first instance, or an attorney-at-law for investigation, report, and recommendation. The Solicitor General or his representative shall appear before the commissioner to conduct the prosecution. The respondent shall be given full opportunity to defend himself, to produce additional evidence in his own behalf, and to be heard by himself and counsel. However, if upon reasonable notice the respondent fails to appear, the investigation shall proceed ex parte. The rules of evidence shall be applicable to proceedings of this nature.

SECTION 8. Report of commissioner and hearing. — Upon receipt of the report of the commissioner, copies of which shall be furnished the Solicitor General and the respondent, the case shall be set down for hearing before the court, following which the case shall be considered submitted to the court for its final determination.

SECTION 9. Procedure in Court of Appeals or Courts of First Instance. — As far as may be applicable, the procedure above outlined shall likewise govern the filing and investigation of complaints against attorneys in the Court of Appeals or in Courts of First Instance. In case of suspension of the respondent, the judge of the court of first instance or Justice of the Court of Appeals shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which same is based.

SECTION 10. Confidential. — Proceedings against attorneys shall be private and confidential, except that the final order of the court shall be made public as in other cases coming before the court.

RULE 139-A

Integrated Bar of the Philippines
(Effective January 16, 1973)

SECTION 1. Organization. — There is hereby organized an official national body to be known as the Integrates Bar of the Philippines, composed of all persons whose names now appear or may hereafter be included in the Roll of Attorneys of the Supreme Court.

SECTION 2. Purpose. — The fundamental purposes of the Integrated bar shall be to elevate the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively.

SECTION 3. Regions. — The Philippines is hereby divided into nine Regions of the Integrated Bar, to wit:

(a) Northern Luzon, consisting of the provinces of Abra, Batanes, benguet, Cagayan, Ifugao, Ilocos Norte, Ilocos Sur, Isabela, Kalinga-Apayao, La Union, Mountain Province, Nueva Viscaya, and Quirino;

(b) Central Luzon, consisting of the provinces of Bataan, Nueva Ecija, Pampanga, Pangasinan, Tarlac, and Zambales;

(d) Southern Luzon, consisting of the provinces of Batangas, Cavite, Laguna, Marinduque, Occidental Mindoro, Oriental Mindoro, Quezon and Rizal.

(f) Eastern Visayas, consisting of the provinces of Bohol, Cebu, Eastern Samar, Leyte, Northern Samar, Samar, and Southern Leyte;

(g) Western Visayas, consisting of the provinces of Aklan, Antique, Capiz, Iloilo, Negros Occidental, Negros Oriental, Palawan, Romblon, and Squijor;

(h) Eastern Mindanao, consisting of the provinces of Agusan del Norte, Agusan del Sur, Bukidnon, Camiguin, Davao del Norte, Davao del Sur, Davao Oriental, Mindoro, Misamis Oriental, Surigao del Norte, and Surigao del Sur; and

(i) Western Mindanao, consisting of the cities of Basilan and Zamboanga, and the provinces of Cotabato, Lanao del Norte, Lanao del Sur, Misamis Occidental, South Cotabato, Sulu, Zamboanga del Norte, and Zamboanga del Sur.

In the event of the creation of any new province, the Board of Governors shall, with the approval of the Supreme Court, determine the Region to which the said province shall belong.

SECTION 4. Chapters. — A Chapter of the Integrated Bar shall be organized in every province. Except as hereinbelow provided, every city shall be considered part of the province within which it is geographically situated.

A separate Chapter shall be organized in each of the following political subdivisions or areas;

(a) The sub-province of Aurora;

(b) Each congressional district of the City of Manila;

(d) Caloocan City, Malabon and Navotas;

(e) Pasay City, Makati, Mandaluyong and San Juan del Monte;

(f) Cebu City; and

(g) Zamboanga City and Basilan City

Unless he otherwise registers his preference for a particular Chapter, a lawyer shall be considered a member of the Chapter of the province, city, political subdivision or area where his office or, in the absence thereof, his residence is located. In no case shall any lawyer be a member of more than one Chapter.

Each Chapter shall have its own local government as provided for by uniform rules to be prescribed by the Board of Governors and approved by the Supreme Court, the provisions of Section 19 of this rule notwithstanding.

Chapters belonging to the same Region shall hold regional conventions on matters and problems of common concern.

SECTION 5. House of Delegates. — The Integrated Bar shall have a House of Delegates of not more than one hundred twenty members who shall be apportioned among all the Chapters as nearly as may be according to the number of their respective members, but each Chapter shall have at least one Delegate. On or before December 31, 1974, and every four years thereafter, the Board of Governors shall make an apportionment of Delegates.

The term of the office of Delegates shall begin on the date of the opening of the annual convention of the House and shall end on the day immediately preceding the date of the opening of the next succeeding annual convention. No person may be a Delegate for more than two terms.

The House shall hold an annual convention at the call of the Board of Governors at any time during the month of April of each year for the election of Governors, the reading and discussion of reports including the annual report of the Board of Governors, the transaction of such other business as may be referred to it by the Board and the consideration of such additional matters as may be requested in writing by at least twenty Delegates. Special conventions of the House may be called by the Board of Governors to consider only such matters as the Board shall indicate. A majority of the Delegates who have registered for a convention, whether annual or special, shall constitute a quorum to do business.

SECTION 6. Board of Governors. — The Integrated bar shall be governed by a Board of Governors. Nine Governors shall be elected by the House of Delegates from the nine Regions on the representation basis of one Governor from each Region. Each Governor shall be chosen from a list of nominees submitted by the Delegates from the Region, provided that not more than one nominee shall come from any Chapter. The President and the Executive Vice President, chosen by the Governors from outside of themselves as provided in Section 7 of this Rule, shall ipso facto become members of the Board.

The members of the Board shall hold office for a term of one year from the date of their election and until their successors shall have been duly elected and qualified. No person may be a Governor for more than two terms.

The Board shall meet regularly once every three months, on such date at such time and place as it shall designate. A majority of all the members of the Board shall constitute a quorum to do business. Special meetings may be called by the President or by five members of the Board.

Subject to the approval of the Supreme Court, the Board shall adopt By-Laws and promulgate Canons of Professional Responsibility for all the members of the Integrated Bar. The By-laws and the Canons may be amended by the Supreme Court motu propio or upon the recommendation of the Board of Governors.

The Board shall prescribe such other rules and regulations as may be necessary and proper to carry out the purposes of the Integrated bar as well as the provisions of this Rule.

SECTION 7. Officers. — The Integrated Bar shall have a President and an Executive Vice President who shall be chosen by the Governor immediately after the latter's election; either from among themselves or from other members of the Integrated Bar, by the vote of at least five Governors. Each of the regional members of the Board shall be ex officio Vice President for the Region which he represents.

The President and the Executive Vice President shall hold office for a term of one year from the date of their election and until their successors shall have duly qualified. The Executive Vice President shall automatically become the President for the next succeeding full term. The Presidency shall rotate from year to year among all the nine Regions in such order of rotation as the Board of Governors shall prescribe. No person shall be President or Executive Vice President of the Integrated Bar for more than one term.

The Integrated Bar shall have a Secretary, a Treasurer, and such other officers and employees as may be required by the Board of Governors, to be appointed by the President with the consent of the Board, and to hold office at the pleasure of the Board or for such term as it may fix. Said officers and employees need not be members of the Integrated Bar.

SECTION 8. Vacancies. — In the event the President is absent or unable to act, his duties shall be performed by the Executive Vice President; and in the event of the death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President during the remainder of the term of the office thus vacated. In the event of the death, resignation, removal or disability of both the President and the Executive Vice President to hold office until the next succeeding election or during the period of disability.

The filing of vacancies in the House of Delegates, Board of Governors, and all other positions of Officers of the Integrated bar shall be as provided in the By-Laws. Whenever the term of an office or position is for a fixed period, the person chosen to fill a vacancy therein shall serve only for the unexpired term.

SECTION 9. Membership dues. — Every member of the Integrated Bar shall pay such annual dues as the Board of Governors shall determine with the approval of the Supreme Court. A fixed sum equivalent to ten percent (10%) of the collections from each Chapter shall set aside as a Welfare Fund for disabled members of the Chapter and the compulsory heirs of deceased members thereof.

SECTION 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member from the Roll of Attorneys.

SECTION 11. Voluntary termination of membership; reinstatement. — A member may terminate his membership by filing a written notice to that effect with the Secretary of the Integrated Bar, who shall immediately bring the matter to the attention of the Supreme Court. Forthwith he shall cease to be a member and his name shall be stricken by the Court from the Roll of Attorneys. Reinstatement may be made by the Court in accordance with rules and regulations prescribed by the Board of Governors and approved by the Court.

SECTION 12. Grievance procedures. — The Board of Governors shall provide in the By-Laws for grievance procedures for the enforcement and maintenance of discipline among all the members of the Integrated Bar, but no action involving the suspension or disbarment of a member or the removal of his name from the Roll of Attorneys shall be effective without the final approval of the Supreme Court.

SECTION 13. Non-Political Bar. — The Integrated Bar shall be strictly non-political, and every activity tending to impair this basic feature is strictly prohibited and shall be penalized accordingly. No lawyer holding an elective, judicial, quasi-judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof shall be eligible for election or appointment to any position in the Integrated Bar or any Chapter thereof. A Delegate, Governor, Officer or employee of the Integrated Bar, or an officer or employee of any Chapter thereof shall be considered ipso facto resigned from his position as of the moment he files his certificate of candidacy for any elective public office or accepts appointment to any judicial, quasi-judicial, or prosecutory office in the Government or any political subdivision or instrumentality thereof.

SECTION 14. Positions honorary. — Except as may be specifically authorized or allowed by the Supreme Court, no Delegate or Governor and no national or local Officer or committee member shall receive any compensation, allowance or emolument from the funds of the Integrated Bar for any service rendered therein or be entitled to reimbursement for any expense incurred in the discharge of his functions.

SECTION 15. Fiscal matters. — The Board of Governors shall administer the funds of the Integrated Bar and shall have the power to make appropriations and disbursements therefrom. It shall cause proper Books of Accounts to be kept and Financial Statements to be rendered and shall see to it that the proper audit is made of all accounts of the Integrated Bar and all the Chapters thereof.

SECTION 16. Journal. — The Board of Governors shall cause to be published a quarterly Journal of the Integrated Bar, free copies of which shall be distributed to every member of the Integrated Bar.

SECTION 17. Voluntary bar associations. —All voluntary Bar associations now existing or which may hereafter be formed may co-exist with the Integrated Bar but shall not operate at cross-purposes therewith.

SECTION 18. Amendments. — This Rule may be amended by the Supreme Court motu propio or upon the recommendation of the Board of Governors or any Chapter of the Integrated Bar.

SECTION 19. Organizational period. — The Commission on Bar Integration shall organize the local Chapters and toward this end shall secure the assistance of the Department of Justice and of all Judges throughout the Philippines. All Chapter organizational meetings shall be held on Saturday, February 17, 1973. In every case, the Commission shall cause proper notice of the date, time and place of the meeting to be served upon all the lawyers concerned at their addresses appearing in the records of the Commission. The lawyers present at the meeting called to organize a Chapter shall constitute a quorum for the purpose, including the election of a President, a Vice President, a Secretary, a Treasurer, and five Directors.

The Commission shall initially fix the number of Delegates and apportion the same among all the Chapters as nearly as may be in proportion to the number of their respective members, but each Chapter shall have at least one Delegate. The President of each Chapter shall concurrently be its Delegate to the House of Delegates. The Vice President shall be his alternate, except where the Chapter is entitled to have more than one Delegate. The Board of Directors of the Chapter shall in proper cases elect additional as well as alternate Delegates.

The House of Delegates shall convene in the City of Manila on Saturday, March 17, 1973 for the purpose of electing a Board of Governors. The Governors shall immediately assume office and forthwith meet to elect the Officers of the Integrated Bar. The Officers so chosen shall immediately assume their respective positions.

SECTION 20. Effectivity. — This Rule shall take effect on January 16, 1973.

Rule 139-A which ordained the integration of the Philippine Bar and the By-Laws of the Integrated Bar of the Philippines did not withdraw from the courts the authority to investigate and decide complaints against erring members of the Bar.

RULE 139-B

Disbarment and Discipline of Attorneys

SECTION 1. How Instituted. — Proceedings for the disbarment, suspension, or discipline of attorneys may be taken by the Supreme Court motu propio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts.

The IBP Board of Governors may, motu propio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges erring attorneys including those in the government service.

Six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapters who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator.

A. Proceeding in the Integrated Bar of the Philippines

SECTION 2. National Grievance Investigators. — The Board of Governors shall appoint from among the IBP members an Investigator or, when special circumstances so warrant, a panel of three (3) investigators to investigate the complaint. All investigators shall take an oath of office in the form prescribed by the Board of Governors. A copy of the Investigator's appointment and oath shall be transmitted to the Supreme Court.

An Investigator may be disqualified by reason of relationship with the fourth degree of on sanguinity or affinity to any of the parties or their counsel, pecuniary interest, personal bias, or his having acted as counsel for either party, unless the parties sign and enter upon the record their written consent to his acting as such Investigator. Where the Investigator does not disqualify himself, a party may appeal to the IBP Board of Governors, which by majority vote of the members present, there being a quorum, may order his disqualification.

SECTION 3. Duties of the National Grievance Investigator. — The National Grievance Investigators shall investigate all complaints against members of the Integrated Bar referred to them by the IBP Board of Governors.

SECTION 4. Chapter assistance to complaint. —The proper IBP Chapter may assist the complainant[s] in the preparation and filing of his complaints. LLjur

SECTION 5. Service or dismissal. — If the complaint appears to be meritorious, the Investigator shall direct that a copy thereof be served upon the respondent, requiring him to answer the same within fifteen (15) days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Investigator that the complaint is not meritorious, the same may be dismissed by the Board of Governors upon his recommendation. A copy of the resolution of dismissal shall be furnished the complainant and the Supreme Court which may review the case motu propio or upon timely appeal of the complainant filed within 15 days from notice of the dismissal of the complaint.

No investigation shall be interrupted or terminated by reason of the distance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complaint to prosecute the same.

SECTION 6. Verification and service of answer. — The answer shall be verified. The original and five (5) legible copies of the answer shall be filed with the Investigator, with proof of service of a copy thereof on the complaint or his counsel.

SECTION 7. Administrative counsel. — The IBP Board of Governors shall appoint a suitable member of the Integrated Bar as counsel to assist the complainant or the respondent during the investigation in case of need for such assistance.

SECTION 8. Investigation. — Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself, to present witnesses on his behalf, and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte.

The Investigator shall terminate the investigation within three(3) months from the date of its commencement, unless extended for good cause by the Board of Governors upon prior application.

Willful failure or refusal to obey a subpoena or any other lawful order issued by the Investigator shall be dealt with as for indirect contempt of court. The corresponding charge shall be filed by the Investigator before the IBP Board of Governors which shall require the alleged contemnor to show cause within ten (10) days from notice. The IBP Board of Governors may thereafter conduct hearings, if necessary, in accordance with the procedure set forth in the Rule for hearings before the Investigator. Such hearing shall as far as practicable be terminated within fifteen (15) days from its commencement. Thereafter, the IBP Board of Governors shall within a like period of fifteen (15) days issue a resolution setting forth its findings and recommendation, which shall forthwith be transmitted to the Supreme Court for final action and if warranted, the imposition of penalty.

SECTION 9. Depositions. — Depositions may be taken in accordance with Rules of Court with leave of the Investigators.

With the Philippines, depositions may be taken before any member of the Board of Governors, the President of any Chapter, or any officer authorized by law to administer oaths.

Depositions may be taken outside the Philippines before a diplomatic or consular representative of the Philippine Government or before any person agreed upon by the parties or designated by the Board of Governors.

Any suitable member of the Integrated Bar in the place where a deposition shall betaken may be designated by the Investigator to assist the complainant or the respondent in taking a deposition.

SECTION 10. Report of Investigator. —Not later than thirty (30) days from the termination of the investigation, the Investigator shall submit a report containing his findings of fact and recommendations to the IBP Board of Governors, together with the stenographic notes and the transcript thereof, and all the evidence presented during the investigation. The submission of the report need not await the transcription of the stenographic notes, it being sufficient that the report reproduce substantially from the Investigator's personal notes any relevant and pertinent testimonies.

SECTION 11. Defects. — No defect in a complaint, notice, answer, or in the proceeding or the Investigator's Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take remedial action as the circumstances may warrant, including invalidation of the entire proceedings.

SECTION 12. Review and decision by the Board of Governors. — (a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator's report.

(b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action.

(c) If the respondent is exonerated by the Board of the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, reprimand, or fine) it shall issue a decision exonerating respondent or imposing such sanction. The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board's resolution, the Supreme Court orders otherwise.

(d) Notice of the resolution or decision of the Board shall be given to all parties through their counsel. A copy of the same shall be transmitted to the Supreme Court.

B. Proceedings in the Supreme Court

SECTION 13. Investigation by Solicitor General. — In proceedings initiated motu propio by the Supreme Court or in other proceedings when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in Sections 6 to 11 hereof, save that the review of the report of investigation shall be conducted directly by the Supreme Court.

SECTION 14. Report of the Solicitor General or other Court designated Investigator. — Based upon the evidence adduced at the investigation, the Solicitor General or other Investigator designated by the Supreme Court shall submit to the Supreme Court a report containing his findings of fact and recommendations together with the record and all the evidence presented in the investigation for the final action of the Supreme Court.

C. Common Provisions

SECTION 15. Suspension of attorney by Supreme Court. — After receipt of respondent's answer or lapse of the period therefor, the Supreme Court, motu propio, or at the instance of the IBP Board of Governors upon the recommendation of the Investigators, may suspend an attorney from the practice of his profession for any of the cause specified in Rule 138, Section 27, during the pendency of the investigation until such suspension is lifted by the Supreme Court.

SECTION 16. Suspension of attorney by the Court of Appeals or a Regional Trial Court. — The Court of Appeals or Regional Trial Court may suspend an attorney from practice for any of the causes named in Rule 138, Section 27, until further action of the Supreme Court in the case.

SECTION 17. Upon suspension by Court of Appeals or Regional Trial Court, further proceedings in Supreme Court. — Upon such suspension, the Court of Appeals or a Regional Trial Court shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon receipt of such certified copy and statement, the Supreme Court shall make a full investigation of the case and may revoke, shorten or extend the suspension, or disbar the attorney as the facts may warrant.

SECTION 18. Confidentiality. — Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be published like its decisions in other cases.

SECTION 19. Expenses. — All reasonable and necessary expenses incurred in relation to disciplinary and disbarment proceedings are lawful charges for which the parties may be taxed as costs.

SECTION 20. Effectivity and Transitory Provision. — This Rule shall take effect on June 1, 1988. All cases pending investigation by the Office of the Solicitor General shall be transferred to the Integrated Bar of the Philippines Board of Governors for investigation and disposition as provided in this Rule except those cases where the investigation has been substantially completed.

RULE 140

Charges Against Judges of First Instance

SECTION 1. Complaint. — All charges against judges of first instance shall be in writing and shall set out distinctly, clearly, and concisely the facts complained of as constituting the alleged serious misconduct or inefficiency of the respondent, and shall be sworn to and supported by affidavits of persons who have personal knowledge of the facts therein alleged, and shall be accompanied with copies of documents which may substantiate said facts.

SECTION 2. Service or dismissal. — If the charges appear to merit action, a copy thereof shall be served upon the respondent, requiring him to answer within ten (10) days from the date of service. If the charges do not merit action, or if the answer shows to the satisfaction of the court that the charges are not meritorious, the same shall be dismissed.

SECTION 3. Answer; hearing. — Upon the filing of respondent's answer, or upon the expiration of the time for its filing, the court shall assign one of its members, a Justice of the Court of Appeals or a judge of first instance to conduct the hearing of the charges. The Justice or judge so assigned shall set a day for the hearing, and notice thereof shall be served on both parties. At such hearing the parties may present oral or written evidence.

SECTION 4. Report. — After the hearing, the Justice or judge shall file with the Supreme Court a report of his findings of fact and conclusions of law, accompanied by the evidence presented by the parties and the other parties in the case.

SECTION 5. Action. — After the filing of the report, the court will take such action as the facts and the law may warrant.

SECTION 6. Confidential. — Proceedings against judges of first instance shall be private and confidential.

RULE 141 ^*

Legal Fees

SECTION 1. Payment of fees. — Upon the filing of the pleading or other application which initiates an action or proceeding, the fees prescribed before shall be paid in full.(a)

SECTION 2. Fees as lien. — Where the court in its final judgment awards a claim not alleged, or a relief different or more than that claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on the judgment in satisfaction of said lien. The clerk of court shall assess and collect the corresponding fees. (n)

SECTION 3. Persons authorized to collect legal fees. — Except as otherwise provided in this rule, the officers and persons hereinafter mentioned, together with their assistants and deputies, may demand, receive, and take the several fees hereinafter mentioned and allowed for any business by them respectively done by virtue of their several offices, and no more. All fees so collected shall be forthwith remitted to the Supreme Court. The fees collected shall accrue to the general fund. However, all increases in the legal fees prescribed in amendments to this rule shall pertain to the Judiciary Development Fund as established by law. The persons herein authorized to collect legal fees shall be accountable officers and shall be required to post bond in such amount as prescribed by law. (1a).

SECTION 4. Clerks of the Court of Appeals and of the Supreme Court. — (a) For filing an action, proceeding, appeal by notice or record on appeal when required, entering appearance of the parties, entering orders of the Court, filing and docketing all motions, docketing of case on all proper dockets, and indexing the same, entering, recording and certification of judgment and remanding of records to the lower court, taxing and costs, administering all necessary oaths or affirmations in the action or proceeding, recording in the action or proceeding not herein otherwise provided for, each action or special proceeding, four hundred (P400.00) pesos.

(b) For the performance of marriage ceremony, including issuances of certificate of marriage, two hundred (P200.00) pesos;

(c) For furnishing transcripts of the record or copies of any record, judgment, or entry of which any person is entitled to demand and receive a copy, for each page, three (P3.00) pesos;

(d) For each certificate not on process, twenty (P20.00) pesos;

(e) For every search for anything above a year's standing and reading the same, five (P5.00) pesos;

(f) For a commission on all money coming into his hands by these rules or order of the court and caring for the same, two (2%) percent on all sums not exceeding four thousand (P4,000.00) pesos and one (1%) percent upon all sums in excess of four thousand (P4,000.00) pesos, and one half (.5%) percent on all sums in excess of forty thousand (P40,000.00) pesos. (2a)

SECTION 5. Fees to be paid by the advancing party. — The fees of the clerk of the Court of Appeals or the Supreme Court shall be paid him at the time of the entry of the action or proceeding in the court by the party who enters the same by appeal, or otherwise, and the clerk shall in all cases give a receipt for the same and shall enter the amount received upon his book, specifying the date when received, and from whom received, name of action in which received, and amount received. If the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the appeal or the action or proceeding. (3a)

SECTION 6. Fees for the candidates. —

(a) For filing the application for admission to the bar, when admitted to the examination or not, eight hundred (P800.00) pesos for new applicants, and for repeaters, plus the additional amount of one hundred (P100.00) pesos multiplied by the number of times applicant has failed in the bar examinations;

(b) For admission to the bar, including oath taking, signing of the roll of attorneys, the issuance of diploma of admission to the Philippine Bar, etc. eight hundred (P800.00) pesos;

1. Certificate of admission to

the Philippine bar P20.00

2. Certificate of good standing

(local) 20.00

3. Certificate of good standing

(foreign) 50.00

4. Verification of membership in

the bar 10.00

5. Certificate of grades in the bar

examination 20.00

6. Other certifications of records

at the Bar Office, per page 5.00

7. A duplicate diploma of admission

to the Philippine Bar 200.00

For services in connection with the return of examination notebooks to examinations, a fee of twenty (P20.00) pesos shall also be charged. (4a)

SECTION 7. CLERKS of Regional Trial Courts. —

(a) For filing an action or a permissive counter-claim or money claim against an estate not based on judgment, or for filing with leave of court a third-party, fourth-party, etc. complaint, or a complaint in intervention, and for all clerical services in the same, if the total sum claimed, exclusive of interest, or the stated value of the property in litigation, is:

1. Not more than P20,000.00 P120.00

2. More than P20,000.00

but less than P40,000.00 150.00

3. P40,000.00 or more but less

than P60,000.00 200.00

4. P60,000.00 or more but less

than P80,000.00 250.00

5. P80,000.00 or more but less

than P150,000.00 400.00

6. P100,000.00 or more but less

than P150,000.00 600.00

7. For each P1,000.00

in excess of P150,000.00 5.00

(b) For filing:

1. Actions where the value of

the subject matter cannot

be estimated P400.00

2. Special civil actions except

judicial foreclosure of mort-

gage which shall be governed

by paragraph (a) above 400.00

3. All other actions not involving

property 400.00

In a real action, the assessed value of the property, or if there is none, the estimated value thereof shall be alleged by the claimant and shall be the basis in computing the fees.

(c) For filing requests for extrajudicial foreclosure of real estate or chattel mortgage, if the amount of the indebtedness, or the mortgagee's claim is:

1. Less than P500,000.00 P200.00

2. P50,000.00 or more but

less than P100,000.00 300.00

3. P100,000.00 or more but less

than P150,000.00 400.00

4. P150,000.00 or more but less

than P200,000.00 500.00

5. P200,000.00 or more but less

than P250,000.00 600.00

6. P250,000.00 or more but less

than P300,000.00 700.00

7. P300,000.00 or more but less

than P400,000.00 800.00

8. P400,000.00 or more but less

than P500,000.00 900.00

9. P500,000.00 or more but less

than P1,000,000.00 1,000.00

10. For each P1,000.00 in excess

of P1,000,000.00 5.00

(d) For initiating proceedings for the allowance of wills, granting letters of administration, appointment of guardians, trustees, and other special proceedings, the fees payable shall be collected in accordance with the value of the property involved in the proceedings, which must be stated in the application or petition, as follows:

1. Less than P20,000.00 P200.00

2. P20,000.00 or more but

less than P40,000.00 400.00

3. P40,000.00 or more but

less than P60,000.00 600.00

4. P60,000.00 or more but

less than P80,000.00 900.00

5. P80,000.00 or more but less

than P150,000.00 400.00

6. P100,000.00 or more but

less than P150,000.00 1,300.00

7. For each P1,000.00

in excess of P150,000.00 5.00

If the value of the estate as definitely appraised by the by the court is more than the value decided in the application, the difference of the fee shall be paid: provided that a certification from the clerk of court that the proper fees have been paid shall be required prior to the closure of the proceedings.

(e) For filing petitions for naturalization or other modes of acquisition of citizenship, one thousand (P1,000.00) pesos;

(f) For filing petitions for adoption, support, annulment of marriage, legal separation and other actions or proceedings under the Family code, one hundred and fifty (P150.00) pesos;

If the proceedings involve separation of property, an additional fee corresponding to the value of the property involved shall be collected, computed in accordance with the rates for special proceedings.

(g) For all other special proceedings not concerning property, one hundred and fifty (P150.00) pesos;

(h) For the performance of marriage ceremony including issuance of certificate of marriage, one hundred (P100.00) pesos;

(i) For filing an application for commission as notary public, three hundred (P300.00) pesos;

(j) For certified copies of any paper, record, decree, judgment or entry thereof for each page, three (P3.00) pesos and ten (P10.00) pesos for certification;

(k) For a commission on all money coming to his hands by law, rule, order or writ of court and caring for the same, one (1%) per centum on all sums not exceeding forty thousand (P40,000.00) pesos, and one half (.5%) per centum on all sums in excess of forty thousand (P40,000.00) pesos. For any other services as clerk not provided in this section, one hundred (P100.00) pesos shall be collected. (5a)

SECTION 8. JUDGES of Metropolitan and Municipal Trial Courts. —

(a) For each civil action or proceeding where the value of the subject matter involved, or the amount of the demand, exclusive of interest, and costs is:

1. Less than P5,000.00 P80.00

2. P5,000 or more but less

than P10,000.00 100.00

3. P10,000.00 or more but not

exceeding P20,000.00 120.00

4. For each proceeding including

allowance of will, probate, settlement

of estate of small value, one hundred and

ifty (P150.00) pesos

5. For forcible entry and illegal

detainer cases, one hundred

(P100.00) pesos

6. For appeals in all actions or

proceedings, including forcible

entry and detainer cases, taken

from the Metropolitan and

Municipal Trial Courts, one

hundred fifty (P150.00) pesos;

(b) For the performance of marriage ceremony, including issuance of certificate of marriage, fifty (P50.00) pesos;

(d) For taking acknowledgment, twenty (P20.00) pesos;

(e) For writing and certifying depositions, including oath, per page, five (P5.00) pesos;

(f) For certified copies of any record, per page, five (P5.00) pesos;

(g) For stamping and registering books as required by articles nineteen and thirty-six of the Code of Commerce, each book, twenty (P20.00) pesos;

(h) For performing notarial acts for which fees are not specifically fixed in this section, the same fees which notaries public are entitled to receive.

The foregoing fee bill, in English and Filipino shall be posted in a conspicuous place in the office of every Metropolitan and Municipal Trial Court. (6a)

SECTION 9. Sheriffs and other persons serving processes. —

(a) For serving summons and copy of complaint, for each defendant, fifty (P50.00) pesos;

(b) For serving subpoenas in civil action or proceeding, for each witness to be served, twenty (P20.00) pesos;

(d) For serving temporary restraining order, or writ of injunction, preliminary or final, of any court, fifty (P50.00) pesos;

(e) For executing a writ of replevin, fifty (P50.00) pesos;

(f) For filing bonds or other instruments of indemnity or security in provisional remedies, for each bond, twenty (P20.00) pesos;

(g) For executing a writ or process to place a party in possession of real estate, one hundred (P100.00) pesos;

(h) For advertising a sale, besides cost of publication, fifty (P50.00) pesos;

(i) For taking inventory of goods levied upon when the inventory is ordered by the court, one hundred (P100.00) pesos per day of actual inventory work.

(j) For levying on execution on personal or real property, fifty (P50.00) pesos;

(k) For issuing a notice of garnishment, for each notice, twenty (P20.00) pesos;

(l) For money collected by him by order, execution, attachment, or any other process, judicial or extrajudicial, the following sums, to wit:

1. On the first four thousand (P4,000.00) pesos, four (4%) per centum.

2. On all sums in excess of four thousand (P4,000.00) pesos, two (2%) per centum.

In addition to the fees herein above fixed, the party requesting the process of any court, preliminary, incidental, or final, shall pay the sheriff's expenses in serving or executing the process, or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer of travel, guards' fees, warehousing and similar charges, in an amount estimated by the sheriffs, subject to the approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex-officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriff's expenses shall be taxed as costs against the judgment debtor. (7a)

SECTION 10. Stenographers. — Stenographers shall give certified transcript of notes taken by them to every person requesting same upon payment of (a) five (P5.00) pesos for each page of not less than two hundred and fifty words before the appeal is taken and (b) three (P3.00) pesos for the same page, after the filing of the appeal; provided, however, that one-half of the total charges shall be paid to the court and the other half to the stenographer concerned (8a).

SECTION 11. Notaries. — No notary public shall charge or receive of any service rendered by him, any fee, remuneration or compensation in excess of those expressly prescribed in the following schedule:

(a) For protests of drafts, bills of exchange, or promissory notes for non-acceptance or non-payment, and for notice thereof, thirty (P30.00) pesos;

(b) For the registration of such protest and filing or safekeeping of same, thirty (P30.00) pesos;

(d) For sworn statement concerning correctness of any account or other document, thirty (P30.00) pesos;

(e) For each oath or affirmation, thirty (P30.00) pesos;

(f) For receiving evidence of indebtedness to be sent outside, thirty (P30.00) pesos;

(g) For issuing a certified copy of all or part of his notarial register or notarial records, for each page, thirty (P30.00) pesos;

(h) For taking depositions, for each page, thirty (P30.00) pesos;

(i) For acknowledging other documents not enumerated in this section, thirty (P30.00) pesos.

SECTION 12. Other officers taking depositions. — Other officers taking depositions shall receive the same compensation as above provided for notaries public for taking and certifying depositions.

SECTION 13. Witness fees. — (a) Witness in the Supreme Court, in the court of Appeals and in the Regional Trial Courts, either in actions or special proceedings, shall be entitled to fifty (P50.00) pesos per day inclusive of travel time;

(b) Witnesses before Metropolitan and Municipal Trial Courts shall be allowed twenty (P20.00) pesos per day;

(c) Fees to which witness may be entitled in a civil action shall be allowed on the certification of the clerk of court or judge of his appearance in the case. A witness shall not be allowed compensation for his attendance in more than one case or more than one side of the same case at the same time, but may elect in which of several cases or on which side of the case, when he is summoned by both sides, to claim his attendance. A person who is compelled to attend court on other business shall not be paid as witness. (11a).

SECTION 14. Fees of appraisers. — Appraisers appointed to appraise the estate of a ward or of a deceased person shall each receive a compensation of one hundred (P100.00) pesos per day for the time actually and necessarily employed in the performance of their duties and in making their reports, which fees, in each instance, shall be paid out of the estate of the ward or deceased person, as the case may be. Any actual and necessary traveling expenses incurred in the performance of the duties of such appraisers may likewise be allowed and paid out of the estate. (12a)

SECTION 15. Fees of commissioners in eminent domain proceedings. — The commissioners appointed to appraise land sought to be condemned for public uses in accordance with these rules shall each receive a compensation of one hundred (P100.00) pesos per day for the time actually and necessarily employed in the performance of the duties and in making their report to the court, which fees shall be taxed as a part of the costs of the proceedings. (13a) .

SECTION 16. Fees of commissioners in proceedings. — The commissioners appointed to make partition of real estate shall each receive a compensation of one hundred (P100.00) pesos per day, for the time actually and necessarily employed in the performance of their duties and in making their report to the court, which fee shall be taxed as a part of the costs of the proceedings. (14a)

SECTION 17. Fees and the account thereof . — The clerk, under the direction of the judge, shall keep a book in which shall be entered the items of fees which have accrued for the transaction of business covered by the provisions of this rule, for which fees are payable, specifying for what business each item of fees has accrued. Receipts shall be given for all fees received and they shall be accounted for in the manner provided in relation to the fees of clerks of court in actions. The book of fees kept by the clerk shall be subject to the inspection of auditing officers and others interested therein. (15a)

SECTION 18. Pauper-litigants exempt from payment of legal fees. — Pauper-litigants (a) whose gross income and that of their immediate family do not exceed four thousand (P4,000.00) pesos a month if residing in Metro Manila, and three thousand (P3,000.00) pesos a month if residing outside Metro Manila, and (b) who do not own real property with an assessed value of more than fifty thousand (P50,000.00) pesos shall be exempt from the payment of legal fees.

The legal fees shall be lien on any judgment rendered in the case favorably to the pauper-litigant, unless the court otherwise provides.

To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn the gross income abovementioned, nor do they own any real property with the assessed value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant's affidavit.

Any falsity in the affidavit of a litigant or disinterested person shall be sufficient cause to strike out the pleading of that party, without prejudice to whatever criminal liability may have been incurred. (16a)

SECTION 18.A. In addition to the fees imposed in the preceding sections, a victim-compensation fee of five (P5.00) pesos pursuant to Rep. Act. No. 7309 shall be assessed and collected for the filing of every complaint or petition initiating an ordinary civil action, or special proceedings in the trial courts including civil action impliedly instituted with criminal actions under Rule 111, Revised Rules on Criminal Procedure where a filing fee is likewise collected. All sums collected shall be remitted to the Department of Justice every quarter by the Clerk of Court concerned.

SECTION 19. Government exempt. — The Republic of the Philippines, its agencies and instrumentalities, are exempt from paying the legal fees provided in this rule. Local governments and government-owned or controlled corporations with or without independent charters are not exempt from paying such fees. (17a)

RULE 142

Costs

SECTION 1. Costs ordinarily follow results of suit. — Unless otherwise provided in these rules, costs shall be allowed to the prevailing party as a matter of course, but the court shall have power, for special reasons, to adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable. No costs shall be allowed against the Republic of the Philippines unless otherwise provided by law.

SECTION 2. When action or appeal dismissed. — If an action or appeal is dismissed for want of jurisdiction or otherwise, the court nevertheless shall have the power to render judgment for costs, as justice may require.

SECTION 3. Costs when appeal frivolous. — Where an action or an appeal is found to be frivolous, double, or treble costs may be imposed on the plaintiff or appellant, which shall be paid by his attorney, if so ordered by the court.

SECTION 4. False allegations. — An averment in a pleading made without reasonable cause and found untrue shall subject the offending party to the payment of such reasonable expenses as may have been necessarily incurred by the other party by reason of such untrue pleading. The amount of expenses so payable shall be fixed by the judge in the trial, and taxed as costs.

SECTION 5. No costs for irrelevant matters. — When the record contains any unnecessary, irrelevant, or immaterial matter, the party at whose instance the same was inserted or at whose instance the same was printed, shall not be allowed as costs any disbursement of preparing, certifying, or printing such matter.

SECTION 6. Attorney's fees as cost. — No attorney's fees shall be taxed as costs against the adverse party, except as provided by the rules of civil law. But this section shall have no relation to the fees to be charged by an attorney as against his client.

SECTION 7. Restriction of costs. — If the plaintiff in any action shall recover a sum not exceeding ten pesos as debt or damages, he shall recover no more costs than debt or damages, unless the court shall certify that the action involved a substantial and important right to the plaintiff in which case full costs may be allowed.

SECTION 8. Costs, how taxed. — In inferior courts, the costs shall be taxed by the justice of the peace or municipal judge and included in the judgment. In superior courts, costs shall be taxed by the clerk of the corresponding court on five day's written notice given by the prevailing party to the adverse party. With this notice shall be served a statement of the items of costs claimed by the prevailing party, verified by his oath or that of his attorney. Objections to the taxation shall be made in writing, specifying the items objected to. Either party may appeal to the court from the clerk's taxation. The costs shall be inserted in the judgment if taxed before its entry, and payment thereof shall be enforced by execution.

SECTION 9. Costs in justice of the peace or municipal courts. — In an action or proceeding pending before a justice of the peace or municipal judge, the prevailing party may recover the following costs, and no other:

(a) For the complaint or answer, two pesos;

(b) For the attendance of himself, or his counsel, or both, on the day of trial, five pesos;

(d) For each witness produced by him, for each day's necessary attendance at the trial, one peso, and his lawful traveling fees;

(e) For each deposition lawfully taken by him and produced in evidence, five pesos;

(f) For original documents, deeds, or papers of any kind produced by him, nothing;

(g) For official copies of such documents, deeds or papers, the lawful fees necessarily paid for obtaining such copies;

(h) The lawful fees charged by him for service of the summons and other process in the action;

(i) The lawful fees charged against him by the judge of the court in entering and docketing and trying the action or proceeding.

SECTION 10. Costs in Courts of First Instances. — In an action or proceeding pending in a Court of First Instance, the prevailing party may recover the following costs, and no other:

(a) For the complaint or answer, fifteen pesos;

(b) For his own attendance, and that of his attorney, down to and including final judgment, twenty pesos;

(c) For each witness necessarily produced by him, for each day's necessary attendance of such witness at the trial, two pesos, and his lawful traveling fees;

(d) For each deposition lawfully taken by him, and produced in evidence, five pesos;

(e) For original documents, deeds, or papers of any kind produced by him, nothing;

(f) For official copies of such documents, deeds, or papers, the lawful fees necessarily paid for obtaining such copies;

(g) The lawful fees paid by him in entering and docketing the action or recording the proceedings, for the service of any process in action, and all lawful clerk's fees paid by him.

SECTION 11. Costs in Court of Appeals and in Supreme Court. — In an action or proceeding pending in the Court of Appeals or in the Supreme Court, the prevailing party may recover the following costs, and no other:

(a) For his own attendance, and that of his attorney, down to and including final judgment, thirty pesos in the Court of Appeals and fifty pesos in the Supreme Court;

(b) For official copies of record on appeal and the printing thereof, and all other copies required by the rules of court, the sum actually paid for the same;

(c) All lawful fees charged against him by the clerk of the Court of Appeals or of the Supreme Court, in entering and docketing the action and recording the proceedings and judgment therein and for the issuing of all process;

(d) No allowance shall be made to the prevailing party in the Supreme Court or Court of Appeals for the brief or written or printed arguments of his attorney, or copies thereof, aside from the thirty or fifty pesos above stated;

(e) If testimony is received in the Supreme Court or Court of Appeals not taken in another court and transmitted thereto, the prevailing party shall be allowed the same costs for witness fees, depositions, and process and service thereof as he would have been allowed for such items had the testimony been introduced in a Court of First Instance;

(f) The lawful fees of a commissioner in an action may also be taxed against the defeated party, or apportioned as justice requires.

SECTION 12. Costs when witness fails to appear. — If a witness fails to appear at the time and place specified in the subpoena issued by any inferior court, the costs of the warrant of arrest and of the arrest of the witness shall be paid by the witness if the court shall determine that his failure to answer the subpoena was willful or without just excuse.

SECTION 13. Costs when person cited for examination in probate proceedings. — When a person is cited, on motion of another, to appear before the court to be examined in probate proceedings, the court may, in its discretion, tax costs for the person so cited and issue execution therefor, allowing the same fees as for witnesses in Courts of First Instance.

RULE 143

Applicability of the Rules

These rules shall not apply to land registration, cadastral and election cases, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.

RULE 144

Effectiveness

These rules shall take effect on January 1, 1964. They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure shall apply.

HELP CENTER

CONTACT INFORMATION

Department of Agrarian Reform
Elliptical Road, Diliman
Quezon City, Philippines

Copyright Information

HELP CENTER

CONTACT INFORMATION

Department of Agrarian Reform Elliptical Road, Diliman Quezon City, Philippines

Copyright Information

Department of Agrarian Reform
Elliptical Road, Diliman
Quezon City, Philippines