REMEDIES TO CERTAIN ACTIONS IN COURT

CIVIL PROCEDURE
ACTION REMEDY
Non-Exhaustion of Administrative Remedies File answer raising affirmative defense of lack
of cause of action
Failure to pay docket fees Motion to dismiss on the ground of lack of
jurisdiction
Splitting of Cause of Action Motion to dismiss on the ground of: either
Litis Pendentia or Res Judicata
Misjoinder of Causes of Action Motion to Sever by a party; or severed at the
initiative of the court
Party filing suit is not the proper party File answer raising the affirmative defense of
(meaning the party who filed is NOT a natural lack of legal capacity to sue
person, juridical person or entity authorized
by law)
Action not in the name of the real party in File answer raising the affirmative defense of
interest failure to state a cause of action
Indispensable party not impleaded Court shall order the plaintiff to amend his
complaint by impleading the indispensable
party or allowing intervention of the
indispensable party.

NOTE: Amendment or Intervention is no longer

available if there has already been ENTRY of judgment.
Indispensable party not impleaded and only Annulment of the RTC decision filed with the
discovered AFTER ENTRY of judgment CA.
Failure to implead an indispensable party Court may dismiss the case for failure to
despite being ordered by the court prosecute.
Non-joinder of necessary party to the action The pleader shall set forth his name, if known
and state why he is omitted.
If reason for omission of necessary party is Court may order for the inclusion of the
unmeritorious omitted necessary party if jurisdiction over
his person may be obtained.
Plaintiff filed a subsequent action against a File an answer and raise as affirmative
necessary party despite not complying with defense that the claim has been waived.
the previous order of a court for his inclusion.
Misjoinder and nonjoinder of 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.
Improper class suit File answer raising the affirmative defense
that plaintiff has no legal capacity to sue.
Favorable judgment on a money claim File a money claim against estate of accused
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against a party who died prior to final in accordance with Rule 86 of the ROC
judgment
Favorable judgment on an action that Move for the execution of the judgment.
survives, but not one of those provided in
Section 5 Rule 86, against a party who died
prior to final judgment
Improper Venue File an answer raising the affirmative defense
of improper venue
Compulsory claim not set up in answer then Motion to dismiss on the ground of either:
was subsequently filed as a separate action litis pendentia or res judicata.
Complaint by plaintiff Answer by defendant
Answer with attached actionable document Reply
Reply with attached actionable document Rejoinder
Permissive counterclaim by defendant File answer; otherwise default
Cross-claim File answer; otherwise default
Third, Fourth etc Party complaint Answer
New matters alleged in the answer Interpose by supplemental or amended
complaint.
Dismissal of case due to non-compliance with EITHER:
Certification against forum shopping
Refile the complaint and annex thereto the
certification against forum shopping; or

File special civil action for certiorari to set

aside the dismissal order.
Denial of affirmative defense Appeal after judgment on the merits
Party fails to set up counterclaim or cross By leave of court set up the counterclaim or
claim in the answer through oversight, cross claim by amendment before judgment.
inadvertence, excusable neglect or when
justice requires.
After acquired counterclaim or cross claim By leave of court set it up as counterclaim or
cross claim by supplemental pleading before
judgment.
Declaration of default before judgment File a motion after notice but before
judgment to set aside the order of default on
the ground of fraud, accident, mistake,
excusable negligence or such other
meritorious defense.
Failure to attach Judicial Affidavit or Reservation of evidence under Rule 18
Documentary and object evidence
Where an answer has been belatedly filed File a motion to admit answer
but before defendant is declared in default
Declaration of default after judgment but File motion for new trial on the ground of
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before it becomes final FAME.
Declaration of default after judgment Petition for relief from judgment under Rule
becomes final 38
Declaration of default after judgment File a petition for annulment of judgment
becomes final and after period to file a based on extrinsic fraud under Rule 47
petition for relief has lapsed
Court refused amendment of a pleading Mandamus
although it is a matter of right
Motion to dismiss on the ground of Res Appeal the order of dismissal
judicata or prescription (WITH PREJUDICE)
was granted
Motion to dismiss on the ground of Lack of Re-file the complaint
subject matter jurisdiction or litis pendentia
(WITHOUT PREJUDICE)
Motion to dismiss is denied Proceed to trial and if he loses, just appeal
and assign the failure to dismiss as reversible
error.

NOTE: cannot file MR, petition for certiorari,

prohibition or mandamus applying by analogy the rule
that no such actions can be filed on the action of the
court on an affirmative defense.
Plaintiff files a case on a claim which has Motion to dismiss on the ground of res
been the subject of two notices of dismissal judicata (The two dismissal rule now applies)
by the plaintiff
Counsel absent during pre-trial but plaintiff Show cause order to the absent counsel
or defendant present
Court denied motion to intervene Appeal within 30 days from denial by filing
notice of appeal and record on appeal.

BUT if judgment has already been rendered

at the time that motion to intervene was
denied, appeal within 15 days by filing a
notice of appeal alone.
Subpoena to a person who resides more than Motion to quash subpoena
100 km from court
Subpoena duces tecum where it is Motion to quash subpoena
oppressive, unreasonable or relevancy of
documents does not appear or person in
whose behalf does not advance cost of
production
In case a party wants to present in evidence Take the deposition of the witness
the testimony of a reluctant witness who
resides more than 100 km from his residence
 REMEDIES TO CERTAIN ACTIONS IN COURT
to the place where he is to testify
Party or Counsel is sick on date set for trial Motion to postpone trial on the ground of
illness with sworn certification or affidavit
that the presence of party or counsel at trial
is indispensable and the absence is
excusable.
Order granting demurrer to evidence Appeal
Party does not specifically deny under oath Motion to render judgment on the pleadings
actionable document
Separate or Several Judgments Petition for Certiorari under Rule 65.

BUT if allowed by court may file appeal by

filing notice of appeal and a record on appeal
within 30 days from notice of the order
allowing appeal.
Order denying motion for new trial or Appeal the final order or judgment NOT the
reconsideration order denying the motion.
Party prevented from taking an appeal due to Petition for relief from judgment
FAME
Order of execution Special civil action for certiorari under rule
65.
Judgments that are immediately final and Special civil action for certiorari under rule 65
executory on the ground of grave abuse of discretion
amounting to lack or excess of jurisdiction.
Execution was filed by motion within 5 years Action for revival of judgment provided not
from entry but the levy was not made within barred by statute of limitations
the 5 year period
Dormant judgment Action for revival of judgment
Third party claimant whose property is levied 1. Motion or application with the court
upon by a court for the release of property
2. Third party claim or terceria
3. Action to claim damages on the
indemnity bond if one is filed
4. A separate reivindicatory action to
recover possession of the property
from the officer or purchaser at the
execution sale.
Third party claim is denied Separate reivindicatory action
Third party claimant filed a frivolous or Judgment oblige may claim damages either in
plainly spurious claim the same case or in a separate action.
Conjugal property is being levied upon to Spouse may file terceria
answer for the SEPARATE obligation of a
spouse NOTE: If conjugal property is being levied to answer
for an obligation chargeable to the conjugal or
 REMEDIES TO CERTAIN ACTIONS IN COURT
community property, cannot file a third party claim or
terceria.
When a person or corporation alleged to Court may issue order authorizing judgment
have property of judgment obligor or oblige to institute an action against such
indebted to him is examined but claims person or corporation (Sec. 43, Rule 39)
interest or denies indebtedness
Foreign judgment which is final Petition for the recognition and enforcement
of the foreign judgment then motion for
execution.

But if the foreign judgment does not grant an

affirmative relief, petition for recognition
alone is sufficient.
Lack of cause of action Demurrer to evidence
Original record or record on appeal is not Either party may file a motion with the trial
transmitted to the CA within 30 days from court for the transmittal of such record or
perfection of appeal record on appeal.
Order denying motion to dismiss Either Petition for Prohibition or Certiorari.
Junior encumbrancer not impleaded in the Right of redemption since he is now a
judicial foreclosure of mortgage redemptioner by virtue of Section 27(b) of
Rule 39.
Party filed a prohibited pleading or motion in Motion to expunge the prohibited pleading
an ejectment case or motion

With Prejudice Without Prejudice

 Summary dismissal of a case due to  Non-compliance with rules on
willful and deliberate forum shopping. certification against forum shopping
 Dismissal due to misrepresentation of  Dismissal due to failure of plaintiff to
 REMEDIES TO CERTAIN ACTIONS IN COURT
plaintiff that defendant was served comply with the order of the court to
summons. cause the service of summons by
 Dismissal on the ground of Res other means available under the
judicata Rules.
 Dismissal on the ground of Statute of  Dismissal based on notice of dismissal
Limitations filed by plaintiff (GENERAL RULE).
 Dismissal on the ground that claim is  Dismissal by motion of plaintiff
paid, waived, abandoned, (GENERAL RULE)
extinguished.  Failure of plaintiff to appear on the
 Dismissal on the ground that the date set for hearing in a small claims
action or claim is unenforceable. action.
 Dismissal based on notice of dismissal
by the plaintiff if provided by the
order of dismissal that it is with
prejudice
 Dismissal by motion of plaintiff if
order of dismissal provides that it is
with prejudice.
 Dismissal of a claim or action for a
second time where the second
dismissal is by notice
 Dismissal due to fault of plaintiff (Sec.
3, Rule 17) UNLESS otherwise
declared by court.
 Dismissal due of plaintiff and counsel
to appear on pre-trial without just
cause UNLESS otherwise declared by
court.
 Plaintiff in a small claims action
misrepresents that he/she/it is not
engaged in business of banking,
lending or similar activities when in
fact he/she/it is so engaged.
 Failure of both parties to appear in
the date set for hearing in a small
claims action.

CIVIL PROCEDURE
Action/ Motion/ Pleading Time to File
Notice of dismissal by plaintiff Before service of answer or motion for
summary judgment
 REMEDIES TO CERTAIN ACTIONS IN COURT
Motion of dismissal by plaintiff After service of answer or motion for
summary judgment
Pre-trial brief Within 3 calendar days before start of pre-
trial
Motion to intervene At any time before rendition of judgment by
the trial court
Request for admission by adverse party At any time after issues have been joined
Demurrer to Evidence After the plaintiff has completed the
presentation of his or her evidence but
before court renders judgment.
Motion for summary judgment At any time after the pleading in answer to
the claim has been served.
Motion for new trial or Motion for Within the time for filing an appeal.
reconsideration
Petition for Relief from judgment Within 60 days from the time that petitioner
learns of the judgment, final order or other
proceeding to be set aside and not more than
6 months after such judgment or final order
was entered or such proceeding was taken.
Execution of judgment or final order MOTION: Within 5 years from date of entry

INDEPENDENT ACTION: At any time after

lapse of 5 years from date of entry provided
not barred by statute of limitations which is
10 years from date of entry.

CRIMINAL PROCEDURE
ACTION REMEDY
Information for adultery, concubinage, Motion to quash on the ground of lack of
abduction, seduction, acts of lasciviousness jurisdiction of the court over the offense
 REMEDIES TO CERTAIN ACTIONS IN COURT
or defamation which consists in the charged.
imputation of the above crimes by the
prosecutor rather than a complaint by
offended party NOTE: Not on the ground that officer had no
authority to file because in private crimes the filing
by offended party is jurisdictional.
Complaint or information charges more than Motion to quash
one offense
Proper offense not charged in the Motion for substitution BEFORE judgment by
information e.g. charged for murder when it the trial court.
should be simple rebellion
Improper Venue Motion to quash on the ground that court
has no jurisdiction over the offense charged.

NOTE: This cannot be waived. May be raised at any

stage of the proceedings even for the first time on
appeal.
Party is aggrieved by the resolution of the Appeal to the Secretary of Justice by filing a
provincial or city prosecutor or chief state Petition for Review.
prosecutor
Accused not afforded a preliminary Motion to remand the case to the office of
investigation and he/she was not yet the prosecutor for preliminary investigation.
arraigned
NOTE: If already arraigned, already waived.
Resolution of the RTC in an application for Motion to review with the Appellate Court
bail (sec. 5, Rule 114)
Revive a provisionally dismissed case File a motion to revive and the issuance of an
order of revival.
Criminal case is refiled after the provisional Motion to quash on the ground of double
dismissal has become permanent jeopardy.
Accused not brought to trial within 30 days Motion for the court to dismiss the
from receipt of pre-trial order information on the ground that his right to
speedy trial is denied.
Failure to observe the time limits provided in Motion for the court to dismiss the
Speedy Trial Act information on the ground that his right to
speedy trial is denied.
Accused lost his remedies due to failure to Surrender and file a motion for leave to avail
appear during the promulgation of judgment of the said remedies within 15 days from
of conviction promulgation of judgment.
Trial Court order granting motion to Appeal
withdraw information
Order quashing a search warrant applied for Appeal
in anticipation of a criminal action
Unlawful search warrant 1. Motion to quash the search warrant
 REMEDIES TO CERTAIN ACTIONS IN COURT
2. Motion to suppress evidence
obtained by the unlawful search
warrant

NOTE: Even if not raised in the motion to quash, not

waived, may still question the illegality of search by
invoking Sec. 3(2) of the 1987 Constitution which is
a fundamental right.
Illegal arrest Motion to quash on the ground that court
has no jurisdiction over the person of the
accused

NOTE: can be waived if not raised before plea. But

waiver of illegality of arrest does not mean waiver
of illegality of search.

CRIMINAL PROCEDURE
Action/ Motion/ Pleading Time to File
Substantial Amendment of complaint or Any time before plea
information
Formal amendment Either before or after plea
 REMEDIES TO CERTAIN ACTIONS IN COURT
Substitution Before judgment
Reservation of right to institute civil action Before prosecution starts presenting
separately evidence
Petition for suspension of criminal action on At any time before prosecution rests.
the ground of prejudicial question where a
criminal action is already filed
Withdraw an improvident plea At any time before judgment of conviction
becomes final
Motion to quash At any time before accused enters his plea
Motion to dismiss the information on the Before trial otherwise waived
ground of denial of right to speedy trial
Motion to discharge an accused as a state Before the prosecution rests its case.
witness
Demurrer to Evidence After the prosecution rested its case
New Trial or Reconsideration At any time before judgment of conviction
becomes final

SPECIAL PROCEEDINGS
ACTION REMEDY
Challenge or contest venue in a probate Appeal
proceeding
If impropriety of venue appears on the Certiorari under Rule 65
 REMEDIES TO CERTAIN ACTIONS IN COURT
record
Recover balance of estate if person Motion to recover said balance in the same
presumed dead proves to be alive proceeding where estate is settled.
No heir, creditor or any other person appears Verified petition BY the registered heirs,
within 2 years from extrajudicial settlement devisees or legatees or any other person in
or distribution of estate interest filed with register of deeds to
CANCEL the 2-year lien on the title.
An heir adjudicates the estate to himself The co-heirs shall file a petition to settle the
when he has other co-heirs estate to satisfy their lawful shares within 2
years from the time of settlement or
distribution or if it involves registered land,
from the date of registration (Sec. 4, Rule 74)
An heir adjudicates the estate to himself Action for reconveyance based on implied
when he has other co-heirs and 2 years trust under Article 1456
period has lapsed
Court issuance of a letters testamentary Appeal
Interested person in the estate was not 1. Sec. 6, Rule 87
appointed as administrator 2. Sec. 10, Rule 85
3. Sec. 7(b), Rule 89
4. Sec. 1, Rule 90
5. Sec. 2, Rule 82
Issuance of letters testamentary or letters Appeal
administration
Money claims arising from contract, quasi- Claim against the estate (Rule 86)
contract and law
Money claims arising from quasi-delict or Claim against executor or administrator (Rule
crime 87)
Approval or disapproval of a claim against Appeal
estate
Executor or administrator is unwilling or Heirs may bring suit and implead the
refuses to bring suit for the recovery of the executor or administrator as a co-defendant
property or rights of the deceased for being an un-willing co-plaintiff pursuant
to S10R3
Third person is suspected of having Motion or application by the executor to cite
concealed, embezzled or conveyed away any such person to appear before court and
money, goods or chattels of the deceased… examine him
Proven that third person indeed has in his Independent action for recovery thereof.
possession property belonging to estate
NOTE: cannot be my writ of execution
Heir entitled to residue of estate but not 1. MR or Appeal within 30 days from
given his share in a judicial settlement of the notice
estate 2. Where his address is known but no
notice was given, file action to annul
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the judgment
3. Where address is unknown and no
personal notice was given, file motion
for the delivery of his share OR to re-
open proceedings if order of closure is
not yet final
4. If order of closure is already final, file
an action for reconveyance against
distributees.
Petition under RA 9048 is denied by LCR or Appeal to the civil registrar general or file
consul general appropriate petition with proper court.

SPECIAL PROCEEDINGS
Action/ Motion/ Pleading Time to File
Tardy Claim At any time before order of distribution is
entered

EVIDENCE
ACTION REMEDY
When evidence conditionally admitted by Motion by the adverse party to strike out
court fails to establish its relevancy and from the record the evidence
 REMEDIES TO CERTAIN ACTIONS IN COURT
competency as promised by the proponent
(doctrine of conditional admissibility)
Grant of application for DNA testing Petition for certiorari under Rule 65

NOTE: cannot be appealed because immediately

executory
Stay the implementation of order to conduct Petition for certiorari with application of
DNA testing issuance of writ of preliminary injunction
Post-conviction DNA testing is favorable to Petition for writ of Habeas Corpus in the
the convict court of origin.

May also file in SC, CA or any member

thereof which may conduct hearing and
remand petition to court of origin and issue
orders.
Substantial doubt exists as to the Motion to conduct a competency
competency of a child to testify as a witness examination

NOTE: can be done motu proprio by the court

Lack of qualification of an expert witness Timely object on the ground of lack of
qualification
Hearsay Objection on the ground of hearsay
Witness does not have personal knowledge Objection on the ground of lack of personal
of the facts or not derived from his or her knowledge
own perception
Witness testified in narrative form Motion to strike out testimony