The New Rules of Court

Media

Part of The Lawyers Journal

Title: The New Rules of Court
Language: English
Source: VIII (3) February 15, 1940
Year: 1940
Subject: Court rules; ; Procedure (Law)
Rights
Fulltext: THE LA WYERS' JOURNAL ,February 15, 1940 THE ,NEW RULES OF COURT [CONTINUED] RULE 26 MOTIONS SECTION 1. Motion defiited.-Every application for an order not included in a judgment, may be called a motion. SEC. 2. Mot:ion 'must be ill writing.-All motions shall be made in writing except motions for continuance made in the presence of the adverse party, or t~ose made in the course of a hearing or trial. SEC. 3. Contents.-A motion shall state the order sought to be obtained and the grounds upon which it is based, and shall be accompanied by supporting affidavits and other papers. SEC. 4. Notice.-Notice of 'a motion shall be served by the applicant to all P.arties concerned, at least three days before the hearing thereof, together with a copy of the motion, and Of any affidavi\s and other papers accompanying it. The court, however, for good cause may hear a motion on shorter notice, specially on matters which the court may dispose of on its own motion. SEC. ~· Cont.ents of notice.-The notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion. SEC. 6. Proof of service, to be filed 1Vith motion.-No motion shall be acted upon by the. court, without proof of service of the notice thereof. $EC. 7. Motion day.-The first h~urs of the morning session of the court every Saturday of each week shall be devoted to hearing motions, unless, for special reasons, the court shall fix another day for the hearing of any particular motion. SEC. 8. Omnibus motion.-A motion attacking a pleading oi a proceeding shall include all objections then available, and all objections not so included shall he deemed waived. SEC. 9. Form.-The rules applicable to pleadings shall also apply to all motions so far as concerns caption, signing and other matters of form. RULE 27 SERVICE AND FILING OF PLEADING~ 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 with the clerk of the court. The date of the mailing of motions, pleadings, or any other papers or payments or deposits, es shown by the post-office regist'ry receipt, shall be considei·ed as the date of their filing, payment, or deposit in ihis court. SEC. 2. Papers to be filed and served.-Every order required bY its teQns to be served, every pleading subsequent to the com· plaint,. every written motion other than one which may be heard ex-parte, and every written notice, appearance, demand, offer 9f 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 hit,nself is ordered by the court. Where one attorney appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. SEC. 3. Modes of service.-Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail. SEC. 4. Personal service.-SerVice of the papers may be made by delivering personally a copy to the party or his attorney, or by leaving it in his office' with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, then by leaving the copy, between the hours of eight in the morning and !'iX in the evening, at the party's or attorney's residence, if known, with a person of sufficient " discretion to receive the same. SEC. 5. Service by...,mail.-Service may also 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 prep~id, and with instructions to the postmaster to return lhe mail to the sender after tep days if unelaimed. SEC. 6. Substituted service.-If personal service or service by mail 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 a proof of failure of personal service and service by mail. The service is complete at the time of such delivery. SEC. 7. Service of final orders or judgments . .....:'.Final orders or judgments. shall be served either personally or by registered mail. SEC. 8. Completeness of service.-Personal service is com· pletc upon actual doliVery. Service by mail is complete upon th-; expiration of five (5) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon act~al re0 ceipt by the addressee; but if he fails to claim his mail from ~::t:::t~!~i~~ew~!;~~c!i:~a~~Yi:::o~f~~; ::~h:f e~;~!}~~:~c:;~~~~ . time. SEC. 9. When service not necessary.-No service of papers shall be necessary on a party in default' except when he files a motion to set aside the order of def.a.ult, in which event he is entit:ed to notice of all fudher proceedings. SEC. 10. Proof of service.-Proof of personal serVice shall consist of a .written admission of the party served, or the affidavit of the party serving, containing a full statement of the date, place and manner of the service. If the service is by mail, proof thereof shall consist of an affidavit of the person mailing, together with the registry receipt issued by the mailing office if the letter has been registered. 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 addressee. RULE 28 COMPUTATION OF TI ME1 SECTION 1. How to compute time.-In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the time shall run until the end of the next day which is neither a Sunday nor a holiday. Rut.E 29 SUBPOENA .SECTION 1. Subpoena and subpoena duees tecum.-Subpoena is a process directed to a perSon requiring him to attend and to testi~y 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 subprena duces tecmn. SEC. 2. By whom shall be issued.-The subpcena shall be issu~d by the court or judge· before whom the witness is ;equired to attend, or by the judge of, the Court of First Instance of th.e province or any judge of the municipality or city where the deposition is to be taken or the investigation is to be condu~ted, or by any Justice of the Sup'reme Court or Cou'rt of Appeals in any case pending within the Philippines. If a prisoner, not con- r fined in a municipal jail, is .required to attend before an infel"ior ~-e-k·uary 15, 1940 THE LAWYERS' JOURNAL 97 ' court, the Judge of the Court of First Instance of the provin~e where t)le inferior co~t is_ sitting, or any Justice of the Court of Appeals or of the Supreme Court may issue the subpama. SEC. 3. Form and contents.-A subpama, shall be signed by the clerk under the seal o:(: the court, or by the judge if his court has no clerk. 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 shall contain a reasonable description of the books, documents or things therein demanded, which must appear prima facie sufficiently relevant. SEC. 4. Quashing a 1;ulipoena duces tecum.-The court upon motion made promptly and in any event at or before the time specified in the subprena duces tecum for compliance therewith, may (a.) quash the subprena if it is unreasonable and oppressive . or (b) condition denial of the motion upon the advancement by the person in, whose behalf the subprena is issued of the reasonable cost of producing the books, papers or things. SEC. 5. Sufficient authority.-Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 18, -constitutes a sufficient authorization for the issuance of subi:)cenas for the p"ersons named therein 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, howev~r, issue a subpama duces tecum to any such person without an order Of the court. SEC. 6. Service.-Service of a subpcena shall be made by the sh~ri!f, by his deputy, or by any. other person specially autho:rized who is not,.. a party and is not less than 18 years of age. The original shall be exhibited and a copy thereof delivered to the persori named therein, tendering to him the fees for one-day's attendance and the mileage allowed by these rules, except that, when a subprena is issued by or on behalf of the Commonwealth of the Philippines or an officer or agency thereofi("'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. SEC. 7. Ser·vice 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 subpcena and that his te~timony or the things demanded from him are material, the court or judge issuin'g the subpc.ena may issue an order authorizing the sheriff or his deputy or the person specially authorized to serve, to break into the building or vessel where the witness is confealed for the purpose of carrying the service into effect. RULE 30 DISMISSAL OF ACTIONS 1 · 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. 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 competen£ court an action based on or including the same claim, SEC. 2. By Qrder 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 servic~ upon him of the plaintiff's motion to dismiss, the action shall not b~ dismissed against the defendant's objection unless the counterclaim can remain pending -for independent adjudication by the court. Unless othel"'wise specified ip the order, a dismissal under this paragraph shall be without prejudice. A class action shall not be disfu.issed or compromised without the approval of the court. SEC. 3. Failure to prosecute.-When 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 motio~ of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court. SEC. 4. Effect of dismissal nn qther grounds.-Unless otherwise ordered by the court, any dismissal i1.ot provided for in this rule, other th~n a dismissal for lack of jurisdiction, operates as an adjudication upon the merits. - · SEC. 5. Dismissal of counterclaim, cross-claim, or third-party claim.-The provisions of this rule apply to the dismi,sal of any counterclaim, cross-claim, or third~party claim. A voluntary dismissal by the claimant alone pursuant to section 1 of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial oi hearing. RULE 31 CALENDAR AND ADJOURNMENTS SECTION 1. When issue joined.-Upon the filing of the last pleading, the case shall be included in the • trial calendar of the requ~:~· !• at~=~~i~: ~ ps:~:::;;,at~:::b~~~:o~:~·~:f s~::c~i~npe:~, cour~EC. 2. Trial calenda1-.-The clerk of coui-t shall have a the officer having the management of the jS.il, ,who in turn Shall calendar of the cases ready for trial; but he · must prepare a · serve_ it upon the prisoner. special calendar for preferential cases including habras corpus SEC. 9. Witness not bound by subpoenct.-A witness is not ~~~ :1:~ti~0;::c:~'sth~:~;;!:i;~0:r~t,th:n:1:~!~::;s'of~~a:~~~?i bound to attend as such before any court, judge, or other officer out of the Province in which he resi,des, unless the distance be natu~:·c. 3. Notice of trial.-Upon entry of a case in the cor~~sstr~:~~Y5~h~il~:~rc~:;;emo;i:r:;:1~e 7 ;;:~:~:;ec!~n~~e b:1:~~ ;:esponding trial calendar the clerk shall fix a date for trial and moved from the province where he is serving scntenc~. shallS~~~s:. a ;;j~:~:::~:~f !::e Ps::t~:1n::;:ts~~;a:~:~ may SEC. 10. Personal presence in court.-A person present in adjourn a trial fro!!l- day to day, and to any stated time, as the court before a judicial officer may be required to testify in the expeditious and conv~nient traiisaction of business may .require, same manner as if he were in attendance upon a subprena issued but shall have no power to adjourn a trial for a longer period by such court or officer. than one month fdr each adjournment, nor more than three months SEC. 11. Compelling attendance.-In case of failure of a in all, except when · authorized in writing by the Chief Jbstice. witness to attend, the court or judge issuing the subprena, upon SEC. 5. Requisites of motjon to postpone trial for absence -of proof of the service thereof, and of the failure of the 'witness, evidence.-A motion to postpone a trial on the ground of absence maY issue a warrant to the sheriff of the province, or his deputy, of evidence can be granted only upon affidavit showing the mato arrest the witness and bring him before the court or officer teriality of evidence expected to be obtained, and that due diliwhere his attendanc~ is required, and the costs of such warrant gence has been used to procure it. But if the adverse party and seizure of such witness shall be paid by the witness if the admits that .such evidence would be given, and that it be consiauthoritY issuing it shall determine that his failure to answer dered as actually given on the trial, or offered and overruled the subpama was willful "and without just excuse. as improper, the trial must" not be. postponed. SEC. 12. 6'ontempt.-Failure by any person without ade- SEC. 6. Requisites of motion to postpone trial for illness of quate excuse to obey a subpa!na served upon him shall be deemed party.-A motion .to postpone a trial on the ground of illness of a contempt of the court from which the subprona is issued. · a party may be granted if it appears upon affidavit that the 98 THE LAWYERS' JOURNAL February 15, 1940 presence of such party at the trial is indispensable and that the character of his illness is such as to render his nonattendance excusable. RULE 32 CONSOLIDATION OR SEVERANCE SECTION 1. Consolidation.-When actions involving · , mon 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 nlay make such orders concerning proceedings therein as may tend to avoid unriecessary costs or delay. SEC. 2. Separate trials.-The court, in furtherance of con~ venience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, oi.: of any ·separate issue or of any number of claims, ' cross-claims, counterclaims, third-party claims, Ol' issues. RULE 33 TRIAL of its own motion, direct a reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue, or any specific question involved therein; (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; (c) When a question of fact, other ·than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or of carrying a judgment or order into effect. SEC. 3. Order of reference, powers of the com.missioner.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, 3nd may fix the date for beginning and closing the hearings and for the filing of his report. Subject to the specifications SECTION 1. Order of trial.-Subject to the provisions of and limitations stated in the order, the comiliissioner bas and section 2 of Rule ?2, and unless the judge, for special reasons, shall exercise the power to regulate the proceedings in every otherwise directs, the order of trial _shall be. as foHows_: hearing before him and to do all acts and take all measures nec(a) The plaintiff must produce the evidence on his part; essary cir proper for the efficient performance Of his duties (b) The defendant shall then offer evidence in support of under the order. He may issue subpoenas and subpoenas duce.s , his defense, counterclaim, cross-claim and third-party claim; tecum, swear witnesses, and nil.less otherwise provided iii the (c) The third-party defendant, if any, shall introduce evid- order of reference he may rule upon the admissibility of eviderlce. ence of his defense, counterclaim, cross-claim and third-party The trial or hearing before him shall proceed in all respects as claim; though the same had been before the court. (d) The foul'th, etc., party, if any, shall introduce evidence SEC. 4. Oath of commissioner.-Before entering upon °his ot 'the material facts by him pleaded~ · duties the commissioner shall be sworn to a faithful and honest (e) The parties against whom any counter-claim or cross- performance thereof. 1 clai_m has, bee? pleaded, shall introdu7e evidence in support of SEC. 5. ProceeJtngs before commissioner.-Upon receipt of their defense, m the order to be prescnbed by the court; the order of reference unless otherwise provided therein, the (f) The parties may then respeCti'.'ely offer rebutting evid- commissioner shall forthwith set a time and place for the first ence only, unless the court, for good reasons, in the furtherance meeting of the parties or their attorneys to be held within 10 of justice, 1iermits them to offer evidence upon their original' days after the date of the order of reference an..d shall notify case; the parties or their attorneys. (g) When the evidence is concluded, unless the ·parties agree SEC. 6. Failure of parties to appear before comniisS"ioner.to submit the cause without argument, the plaintiff or his eoun- If a party fails to appear at the time and pla_ce appointed, lhe sel may make the opening argument, the defendant, third-party commissioner may proceed ex.porte or, in ii'is- discretion, adjourn defendant, and fourth, etc., party, ortheir respective counsel, may the proceedings to a future day, giving notice to the absent pal'ty follow successively, and the plaintiff or his counsel may conclude or his attorney of the adjournment. the argument. Two counsel may, if desired, be heard l;JPOn each SEC. 7. Refusal of witness.-The refusal of a wiiness to side, but in the order herein prescribed; obey a subpcenh. issued by the commissionr or to give evidence (h) If several defendants or third-party defendants, hav- , befot·e him, shall be deemed a contempt of the court who appointed ing separate defenses, appear by different counsel, the court the commissioner, · must determine their relative order in the evidence and argument, SEC. 8. ComniissiotWr shall avoid delays.-It is the duty but in any event the plaintiff is entitled to the opening and clos- of the commission~r to proceed with all · reasonable diligence. ing argument. Either party, on notice to the parties and commissioner, may SEC. 2. Agreed statement of facts.-The parties 'to any ac- apply to the court for an order requiring the coriimissioner to tion may agree, in writing, upon the facts involved in the liti~ speed up the p'roceedings and to make his report. gation, and require the judgment of. the court upon the questions SEC. 9. Report of com?Jlissioner.-Vpon the completion of of law arising from the facts agreed upon, without the intro- the trial or hearing or proceeding before the commissioner, he duction of evidence. shall file ,vith the court his report in writing upon the m.'.ltters SEC. 3. Statements of judge.-During the bearing or trial of submitted to him by the order. of reference. , When his powers a case any statement made by the judge with reference to the are not specified or limited, he shall set forth his findings of case, or to any of the parties thereto, witnesses or attorneys, shall fact and conclusions of law in his report. He shall attach therebe made of record in the stenographic notes if requested by either to in all cases, all exhibits, affidavits, depositions, papers and of the parties. the transcript, if any, of the evidence presented before him. RULE 34 TRIAL BY COMMISSIONER SECTION 1. Reference by consent.-By written consent of both parties, filed with the clerk, the court may order any or all of the issues in a case· to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these rules the word "commissioner" includes a referee, an auditor, and an examiner. SEC. 2. Reference ordered on motion.-When the parties do not consent, the court may, upon the application of eith9r, or SE<>. 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 days within which to signify grounds of objections 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 the1·ein set forth, shall not be considered by the <;ourt unlesS :hey were made before the commissioner. SEC. 11. Hearing upon report.-Upon the i:xpiration of the period of ten clays i·eferred to in the preceding section, the report February 15, 1940 THE LA WYERS' JOURN.i).L 99 shall be set for hearing, alter which. the · coui.'t shall render judgment by adopting, modifying, or rejecting the repoi;t ln whole or in paTt or it may reeeive further evidence or may recommit it with instructions. - SEC. 12. Stipulation as to findings.-When the parties stipulate that a colnmissioner's findings of fact shall be final, only questions of la\y arising upon the report shall thereafter be considered. SEC. 13. Compensation of commission~r.-The court shall allow the commi.c;sioner such -reasonable comperlsation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. RULE 35. JUDGMENTS, ORDERS AND ENTRY THEREOF SECTION l, _ How judgrnent rendered.-Except those of inferior courts, all judgments determining the merits of cases shall be iµ. writing personally and directly prepared by the ' judge, .and signed by him, stating clearly and distinctly the facts and the law on which it is based, and filed with the clerk of the court. SEC. 2. When and how judgments and orders entered.-l:f no appeal or motion to set aside is filed within the time provided m these rules, the judgment or order shall be entered by the clerk. The notation of the judgment or order in the book of en·· tries of judgments shall constitute its entry. The notation shall contain the dispositive part of the judgment or order and shall be signed by the clerk, with a certificate that such judgment Or order has become final and executory. SEC. 3. Judgment for 01· against one of seveml parties.Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and the court may, when justice requires it, conclusively' determine the ultimate rights of the parties on Jach · side, as between themselves, and may require such parties to file adversary pleadings as between themselves. SEC. 4, Several judgments.-In an action against several. defendants, the court may, in its discretion, render judgment against one or more.of them, leaving the action to proceed against the others, whenever a several judgment is proper. SEC. 5. Judgment at various stages.-When more than one claim for relief is presented in an action, the court ati any stage, upon a determinatipn of the issues material to a P,articulnr claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may enter a judgment di~posing 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 sep3rate judgment is so entered, the· court by order may stay its enforcement untiI the entering oi a subsequent judgment or judgments , and may prescribe such cpnditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered. SEC. 6. Judgment by default.-lf the defendant fails to answer within the time specified in " these rules, · the com·t shall, upon motion of the plaintiff, order judgment against the defendant by default, and 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, w)thin the · period provided in these rules, to a counterclaim, cross-claim, or thirdparty complaint. SEC. 7. Judgment 11.1he1l some defendants answe-r, and others make default:-When a complaint states a common cause of acti.on against several defendants, some of whom 'answer, and the others make default, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented by the parties in court. The same' procedure applies when a common cause of action is pleaded ' in a counterclaim; crossclaim and third-party claim. SEC. 8. Jiulgme1it against association or person under a name 01" style.-Whep judgment is entered against two or more persons sued as an association, the judgment shall set out ,the individual oi· proper name or names, if known. SEC. 9. Extent of 1·elief to be awarded.-A judgment entered by default shall not exceed the amount or be different in kind from that prayed for in the demand for judgment. In other cases the judgment shall grant the, relief to which the party in whose favol" it is rendered is entitled, even if the party has not demanded suC!h relief in his pleadings. SEC. fO. Judgment on the pleading$.-Where. an answer fails to tender an issue, or oth~rwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading, except in actions for annulment of marriage or divorce wherein the material facts alleged in the complaint shall always "be proved. RuUE 36 SUMMARY JUDGMEINTS SECTION 1. Summary judgment for claimant.-A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time aitCr the, pleading in answer thereto has been served, move with affidavits for a summary judgment in his ~avor upon all or any part thereof. SEC. 2. Summary judgment foT defending party.-A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with supporting affidavits for a summary jlldgment in his favor as to all or any _part thereof. SEC. 3. Motion and proceedings thereon.-The motion shall be served at least ten days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositlons, and admissions on file, toge· ther with the affidavits, show that, except · as to the ·amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. SEC. 4. Case not ju~ly 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 examiniltg the pleadings and the evidence before it and by interrogating counsel, shall if practicable <)Seertain what material facts exist without substantial contr~ versy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. ' SEC. 5. Form of affidavits; further testimony.-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 pape.rs or parts thereof referred to· in an affida.Jit shall be attached tllereto or served therewith. SEC. 6. Affidavits in bad faith.-Sbould it appear to the satisfaction of the court at any time that any of ·the affidavits presented pursuant to this _Jule 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 37 NEW TRIAL SECTION' 1. When and fo1· what cau.ses new t1'i°al ' nay be JOO THE LAWYERS: JOURNAL February 15, 1940 sought.-Within thirty days after notice of the judgment in an action, the aggrieved party may move the trial court to set aside the judgment a~d grant a neW:_ trial for one or more of the following causes materially affecting the substantial rights of said party: 1 (a) Fraud, accident, mistake or excusable negligence .which ordinary prudence could not have guarded against and by i:.eason of which such' aggrieved pa"rty has probably been impaired in his r::~t~ewlY discovered e~dence, which he could .. not~ with , reasonable diligence, have discover,ed, and produced at the trial, and whi~h if presented would 'probably µ.lter the result; (c) Because excessive dam.ages have been awarded, or the evidence was insufficient to ·justify the decisioD, or it is against the law. SEC. 2. Method of procedure in motions for new trial.The 'motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall be served by the moVant of the ·adv.erse party. · I When t~e motion is made fol" the causes mentioned in sub· divisions (a) and (b) of the preceding section, it shnll be proved in the manner provided for proof of motions. Affidavit or affi. davits of merits shall also be attached to a motion ior the cause mentioned in subdivision (a) which may be rebutted by counter· affidavits. When the ID.otion is made upon the cause mentioned in sub· division ( c) of the preceding section, it shall point out ~pecifically the findings or coµclusions of the judgment which are not sup· ported by the evidence Or which are contrary to law, making ex· press reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. SEC. 3 . . When motion for ¥W trial may ·be granted or dcnicd.-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 sub.: section {c), section 1 of this rule, and the court finds its judgmer..t to be contrary to 'evidence or laW, it rr.ay amend such judg. ment accordingly \vithout granting a new trial, unless the court deems the introduction of additional evidence advisable. ' SEC. 4. Second motian for new trial.-Grounds for new trial 'Which can properly be alleged in a motion, are deemed waived if . 11ot alleged the1·ein. A second motion for new trial may be allowed if based on a ground not existing when the first motiOn was made and may be filed within the time herein provided ex· cludjng the time during which the first motion has been pending. SEC. 5. Effect of granting of motion for new trial.-If a new trial be granted in accordance with the provisions of this rule, the original judgment shall be vacated, and the action shall stand for trial de novo; but the ,recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues,' shall be used upon the new trial without retaking the same. SEC. 6. Partial new trials.-If ' the grounds for a motion under· this rule appear to the court to affe'ct the isSues as to only a pa.rt, Or less than all of the matter controversy or only one, or less 'than all, of the parties to it, the court may, if such issues are severable from the rest, order a new trial as to such issues without interfering with the judgment upon the rest. , SEC. 7. - Effect of order for partial new trial.-When less .th~n all of the issues are orderedl-etried, the court may either enter final judgment as to the rest, or stay the eJiltrY of final judgment until after the new trial. RULE 88 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, and a party to the case,· 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 ~ pro'!!_nce in whic~ h the original judgment was rendered, praying that such judgment be set a,side and the case tried upon its merits. SEC. 2. Petition to Court of -Ffrst Instance for relief from judgment or other protJ(!eding thereof.-When a judgment or order is entered, or any other proceeding is taken, against a party in a Court of ~irst Instance thrqugh fraud, accident, mis· take, or excusable· negligence, he may file a petition in such court praying that the judgment, order, or pi·oceeding be set aside. SEC. 3. When· petition filed; contents and verificrition,-A petition provided for in either of the preceding sections of th'is rule must be verified, filed 'within sixty days after the petitioner learhs of the judgment, order, or other proceeding to be set 3.side, and not more than six months after such judgment or order was entered, or such proceeding was taken; and must be accompanied with affid!\vits 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, which he may prove if his ,petition be granted. SEC. 4. Order to file an answer.-!£ 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 retiuiring those against whom the petition is filed to answer the same within fifteen days from the receipt thereof, which order shall be served in' such manner as the court maY direct, together 'vith Copies of the petition. SEC. 6. Preli1ninary injunction pending proceedings.-The court in which the petition is filed, or a judge tliereof, may grant such preliminary injunction as may be necessary for the preservation of the rights of the parties pendilig the proceeding, upori the filing by the petition'er of a bond to the adverse party conditioned that if the petition is dismissed, or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to him by' reason of the issuance of such injunction or the other proceedings following the petition; but such injunction shall not- operate .to discharge or release bail, or to extinguish any. lien which the adverse1 party may have acquired upon the property of the petitioner. SEC. 6. Proceedings after ~nswer is filed.-Once the answer is filed, or1 the time for its filing has expired, the court shall bear the case, and if .after such hearing, the court :finds that the allegations of the petition are not true, the petition sh.all be dismissed; but if it finds said allegations to be true, it shall order the judg· ment, order, or other proceeding complained of to be :Set aside, upon such terms as may be just, and shall try the principal case upon its merits. SEC. 7. llow trial upon the merits had.-Where the judg· mcnt set aside is that of a Court of First Instance, such court shall proceed to hear and dete,rmine the case as if a timely motion for a new trial P,ad been granted therein, Where the judgment set aside is that of an inferior court, the trial in the Qourt of FirSt instance shall be as if· the case 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 oi'iginal case. SEC. 8. Appeal.-Thc order of the court setting aside the judgment, order or proceeding is not appealable until a final judg· ment is rendere'd upon the merits in the principal case. RULE S9 EXECUTION, SA TIS~"ACTION AND EFFECT OF JUDGMENTS SECTION 1. ExecutWn as of right.~Execution shall issue upon a final judgment or order upon the expiration of the time to appeal when no appeal has been perfected .. SEC. 2. Execution ~iscretionary.-Bcfore the expiration of the time to appeal, execution may issue, in the, discretion of the court, on motion of the prevailing party w~th notice to the adverse ' party, upon good reasons to be stated in a special Febru8ry 15, • 1940 THE LA WYERS' JOURNAL 101 order. --If a record on appeal is filed thereafter, the Special order shall be included therein. Excution issued before. th~ expiration of the time to appeal may be stayed upon the approval by the court of a sufficient supersedeas bond filed by the appellee, conditioned for the perfonll'"ance of the judgment or order api}ealed from in case it be affirmed wQolly or in part. SEC. 3. Execution of supersedeas bond.-The bond given under the preceding section 'may be executed on motion before the trial court after the case is remanded to it by the appellate court. SEC. 4. Injunction, receivership and patent accounting, not s(Q.yed.-Unless otherwise ordered by the court, an interlocutory or final judgement in an action for injunction or in a receivership action, or a judgment or order directing an accounting in an action for infringement of letters patent, shall not be st3.yed after an appeal is perfected or during the pendency of an appeal. The trial court, however, in its discretion, when an appeal is taken from an interlocutory or final judgment granting,, dissolving or denying an injunction, ml}y 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 secuiity of the rights of the adverse party, subject to the power of the appellttte court or of a justice thereof to the same effect. SEC. 5. Effect of 1·eversal of · judgment ex1P,cuted.-Where the judgment executed is reversed totally or partially on appeal, the trial court, on motion, after the case is remanded t.o it, may issue such orders of restitution as equity and justice may warrant under the circumstances. · ' SEC. 6. Executio:n by motion or by independent action.A judgment may be executed on motion within five years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. . SEC. 7. Execution in case of death of party.-Where a party dies after the entry of the judg'inent or order, executiott 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 therecif, and the pfficer making the sale shall account to the corresponding executor or administrator for any surplus in his hands. SEj::. 8. Issuance, fo1-m and 1·equisites of execution.-The execution must issue in the name of the Commonwealth of ihe Philippines from the , co.urt in which the judgment or order is entered; mu_ st intelligibly refer to such judgment or order, stating the court, province, and municipality where it is of record, and the amount actually due thereon if it be for money; and must require the sheriff or Other proper officer to whom it is directed substantially as follows: (a) If the execution be against the property of the judgment debtor, t.o satisfy the judgment, with interest, out of the personal p1·operty 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 tmch property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the 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 ~gainst whom it ',Vas rendered, and if sufficient personal property ·cannot be found, then out of the real property. SEC. 9. lVrit of execution of special judgment.-When a judgment requires the performance of any other act than the payment of money, or the s~le or deijvery of real or personal property, a certified copy of the judgment Shall be attached to the writ of execution antl may 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 p~rty or person may be punished for contempt if he disobeyed such judgment. SEC. 10. .bidgment for specific acts; vesting title.-If a judgment directs a party to execute a conveyance of lan'd, or to deliver deeds or other documents, or to perform any· other specific act, and the party fails to comply within th~ time speci· fied, the com·t may direct the act to be done at the cost of the disobedient party by some other Person appointed by the court . and the act when so done shall have like effect as if done by the party. If real or per~nal property is within the Philippines; the cou~t in lieu of dil'ecting a conveyance thereof may enter a 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. SEC. 11. Return of execittion.- The execution may he made returnable, to the clerk or judge of the court issuing it, at any time not less than ten nor more than sixty days a'fter 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 the1:'tlof, have been lost or destroyed. SEC. 12. P1·operty exe"mpt fr6m execution.-Except as otherwise ·expressly provided by these rules, the following property, and no other, shall be exempt from execution: (a) The debtor's homestead, in which he resides, ar..:! -!~r.-l necessarily used in connection therewith, both not exceeding in value three hundred 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 three hundred 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 two hundred pesos; (/) Provisions foi; individual or family use sufficient for three months; · (g) Professional libraries of attorneys, judges, physicians, pharmacists, dentists, engineers, surveyors, clergymen, school teachers, and music teachers not exceeding five hundred pesos in value. (IL) One fishing boat ond net, not exceeding the total value of one hundred 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 mone:ys, benefits, p1·ivileges, 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 102 THE LAWYERS' JOURNAL Feb.ruary is, 1940 bear the san1e proportion to the moneys, benefits, privilegE:s, tice of the time and place of the sale in three public places in and annuities so accruing or growing out of such insurance that the municipality or. city where the ,sale is to take place, for said five hundred pesos bears to the whole annual premiums Such time as may be- reasonable, considering the character and paid. condi,tion ot: the property; But no article or .'fPecies of property mentioned in this (b) In case of other p~rsonal prop;;·ty, by posting a similar section shall be exempt; fro:n execution issued upon a judgment notice in three public places in· the municipality or city where recovered for its price or upon a judgment of foreclosure of. a the sale is to take place, for n.ot lesi;; than five nor more than mortgage thereon. ten days; / SEC. 13. How execution for Jhe delivery or rest-itution Of (c) In case of real propcl'ty, by posting a similar notice propei·ty enfoi·crd.-The officer must enforce an execution for particularly describing the property for twenty days in three the delive1:y or restitution of propertY by placi~g the plaintiff public places in the municipality or city wbere the property is in possession of such property, and by levying as hereinafter situated, and also where the propeL"ty is to be sold, and, if"4iJ.e provi(Jed upon so much of the property of the judgment debtor assessed value of the property exceeds four huridred pesos, by as will satisfy the amount of the co$ts, damages, rents, and publishing a copy of the notice once a week, for the same peprofits included · in the execution. However, the officer shall riod, in some newspaper published or having general circulanot destroy, demolish or remove the improvements made by the tion in the province, if there be one. If there are newspapers defendaTI.t,or his agent on the property, except by especial -order published in the province i'n both the English and Spanish lanof the cou)·t, •which order may only issue upon petition of .the - guages, then a like publication for a like period shall lie made plai~tiff after due hearing and upon the defendant's failure in one newspaper published in the English language, and· in tO remove the improvements within a reasonable time to be fixed one published in the Spanish language. by the court. - SEC: 17. Penalty for selling without notice, 01· removi1~ SEC. 14. How execution against the prope1·ty enforced.-The or defacing 110tice.-An officer selling without the. notice preofficer must enforce an execution against the pr.opt:rty by levy- scribed by the last Preceding section shall forfeit five hundred ing on all the property, real and personal of every nam'e and pefOS to any party injured the~·eby, i~ addition to h~s actual nature whatsoever, and which may be disposed· of for value, o! damages, both to be recOV{fred m a smgle· proper action; and the judgment debtor not exempt from execution, or on a suf- a person willfully removing or defacing the notice posted, if ficient amount of such property, if there be sufficient, and sell- dofie before the sale, or before- the satisfaction of the judging the same, and paying to the plaintiff, or his attorney, so ment if it be satisfied before the sale, shall forfeit five hundrer. much of the proceeds as will satisfy the judgment. Any excess p·esos to any person injured by reason thereof, to be recovered in the proceeds over the judgment and accruing co.sts must be in any proper action. delivered to the judgment debtor, unless otherwise directed by SEC. 18. No sale if judgment and costs vaid.-At any time the judgment or order of the court. When there is more prop- before th'e sale of property on execution the judgment debtor erty of the judgment debtor than is sufficierl't to satisfy the may prevent the sale by paying th.e amount required by the judgment and accruing costs, within the view of the officer, execution and the costs that have been incurred therein. he must levy only on such part of the property as a amply suf- SEC. 19. How PliOP~rty sold on e:i:ecution. 1 lVho may dfrect ficient to satisfy the judgment and costs. Real property, stocks,· manner and order of sale.-All sales of property under execushares, debts, credits, and other personal property, · or any in- tion must be made ai public auction, to the highest bidder, beterest in either Jeal or personal property, may b~ levied on in tween the hours of nine in the morning and five in the afte1'like manner and with like effect as under an order of attach- noon. After sufficient property has been sold to satisfy the exement. cution, no more shall be sold. When the sale is of real property, SEC. 15. Proceedings whe1·e property claimed by tltird per- consisting of several known lots, they must be sold separately; o<:n: ·If property levied on be claimed by any other person than or, when a portion of such real property is claimed by a third the defendant or his agent; and such person make an affidavit persoi'1:, he may require it to be sold separately. When the sale of his title thereto or right to the possession thereof, stating is of personal property capable of manu3.l delivery, it must the grounds of such right or title, and serve the same upon be sold within view of those ·attending the sale and in such parthe officer making the levy, and a copy thereof upon the judg- eels as are likely to bring the highest price. The judgment ment creditor, the officer shall not be bound to keep the property, debtor, if present at the sale, may direct the order in which unless such judgment creditor or his agent, on demand,. indem- property, real or personal, shall be ~old, when such property nify the officer against such claim by 11 bond in a sum not consists of several kno:wn lots or parcels which can be sold to greatec than the value of the property levied ·on, and, in case advantage separately. Neither the officer holding the· execuof disagreement as to such value, the same shall be determinedi tion, nor his deputy, can become a purchaser, nor b"e interested by the court issuing the writ of execution. The officer is not directly or indirectly in any purchase at such sale. liable for damages, for th<! taking or keepirlg of such Property, SEC. 20. Refusal of purchasBr to vay.-If a purchaser reto any such third person unless such claim is made and unless fuses to pay the amount bid by him for property struck off the action for damages be brought with1n one hundred twenty to him at a sale unde1· exec.ution, the officer may again sell the days from the date of the filing of the bond. But nothing here- property to the highest bidder · and shall not be responsible for in contained shall prevent· such third person from vindicating any loss occasioned thereby; but the court may ord'er the refushis claim to the property by ·any proper action. When, hoW- ing purchaser to pay into court the amount of such loss, -with ever, the plaintiff, or the person in whose favor the writ of costs, and· may punish hinf for contempt if he disobeys the order. execution runs, is the Commonwealth of the Philippines, or any The amount of such payment shall be for the benefit of the officer duly representing · it, the filing of such bond shall not person entitled to the proceeds of the execution, unless the exebe requi;ed, and in case the sheriff or attaching officer is sued cution has been fully satisfied, in which even such proceeds shall for damages as\ a result of the attachment, he shall be repre- be for the benefit of the judgment debtor. When a purchaser s'ented by the Solicitor-General and if held liable therefor, the refuses to pay, the officer may thereafter reject any subsequent actual damages adjudged by the <!qurt shall be paid by the fn- bid of such person. ~ sular Treasurer out of such funds as may be appropriated for SEC. 21. Adiourmnent of sale.-By written consent of debthe purPose. tor and creditor, the officer may adjourn any . sale upon execuSEC. 16. Notice of sale of p1·vpe1'ty 0'11 , cxecution.-Before tion to any date agreed upon in writing by the patties. Withthe sale of property 011 execution, notice thereof must be given out such agreement he may adjourn the sale from day to day, 'as follows: ' · if it becomes necessary to do so for lack of time to complete (a) In case of perishable property, by posting written no- the sale on the day fixed in the notice. Febru3.ry 15, 1940 THE LA WYERS' JOURNAL 103 SEC. 22. Conveyance to ·,mrchasor of perSonaf prq11ertti demptioner, 01· if hi.! has or acquires any lien other t.hau tl111. t ca,pable of manual detivery.-When the purohaser of an)' per- upon which the redemption was made, notice thereof must in sOnal propei-ty, capable of manual delivery, pays the purchase like manner be given to t.he officer and filed with the registrar money, the. of,ficer making the sale must deliver to· the 'purchaser of deeds; if such notice be not filed, the property may be rethe property, and, if desired, execute and deliver to him a cer- deemed without paying such assessments, taxes, Qr liens. tificate of sale. Such conveys to the purchaser all the i:ight SEC. 27. Effect of redemption by judgmen. t debtor, and a which the debtor had in such property on the day the execution ce1·tificate to be tlelivered and recorded thereupon. To whom or attachment was levied. payments on red01nption -made.--1£ , the judgmen~ debtor redeem, SEC. 23. Conpeyancc to p1wchase1· of personal property not he must make the same payments as are reqmred to effect a capable of mamwl del. ivery.- When the JilUrchaser of any per- redemption by a redemptioner, whereupon the effect of the sale sonal property, not capable of manual delivery, pays the 1mi:- is terminated and he is restored to his estate, and the person chase money, t}:ie officer making the sale must execute and de- to whom' the payment is made must execute and diiliver to him liver to the purchaser · a certificate of sal~. Such certificate a certificate of redei;nption acknowledged or approved before a conveys to the purchaser all the right which the debtor had in notary p~blic or other office'r ·authorized ·to take acknowledgsuch property on the day that the execution or attachment was 'ments of conveyances of real property. Such certificate' must levied. 1 ' be filed and recorded in the offjce of the register of· deeds of0 SEC. 24. Effect of sale of real rn~perty. Cm·tificate there- the province in which the property is situated, and the i·egister of given to purchaser and filed uiith 1'egistrar.-Vpon a ·s8le of of deeds must note the. record thereof on the margin of the rerCal property, the purchaser shall be substituted to and acquire cord_ of the certificate of sale. The payments mentioned in thig all the l-ight, title, interest, and claim of the judgment debtor and the last Preceding sections maY be made to the purchaser thereto, subject W the right of redemption as hereinafter pro- or rede'mptioner, or for him to the officer who made the sale. vided. The officer 'must give to the pUl-chaser a certificate of ., SEC/ 28. Pro1Jf required of redetnptfoner.-A redemptjoner sale containing: , must produce to the officer, or-person fronr whom he see.ks to . (a) A particular description of the real :Property sold; redeem, arid serve with his notice to the officer: ' (b) The price paid for each diStinct lot or parcel; (a) A copy or' the judgment or order under which he claims (c) The whole price by him paid; the right to redeem, ce1;tified by the clerk or judge of the court (d) The date when· the right of redemption expires. wherem the Judgment is docketed, or, if he redeem upon a mortA duplicate of such ~ertificate must be filed by the officer gage or othel·. lien, a memorandum of the record thereof, certiin the office of the registrar of deeds of the province. fied by the registrar of deeds; SEC. 25. Who may redeem 'real propCrty 8" 0 sold.- Property (b) A" copy Qf .any assignment necessary to establish his sold subject to redemption, as provided in the last preceding claim, verified by the affidavit of himself, or of a subscribing section, or any pirt sold separately, may be redeemed in the witness thereto; manner hereinafter provided, by the following persons: , (c) An affid:i.vit by himself or his agent, showing the (a) The judgment debto1·, or his successor in interest in amount then actually due on the lien. the whole or any part of the property; SEC. 29. Manner of using premises pending r edemption. (b) A creditor having a lien by attachment, judgment, ~r Waste restrained.-Vntil the expiratiori of the time allowed for. mortgage on the property sold, or on some part thereof, sub- redemption, the court' may, as in other proper cases," .restrain sequent to that Under which the prnperty was sold. Such re- the commission of waste on the property by injunction, On the deeming creditor is termed a redemptioner. apphcat10n of the purchaser 01 the Judgment creditor, with or SEC. 26 .. Time and manner of, and amounts payable on, without notice; but it is not wa'.ste for the person in 'possession successive redeniptU.ms. Notice to be given and filed,-The of the property at the time of the sale, or entitled to possession judg.ment debtor, or redemptione1·, m~y Tedeem the property afterwards, during the period allowed for redemption, to confrom · the purchaser, at any time within twelve months after tinue to use it in the same manner in which it was previously the sale, on paying the purchaser the amount of his purchase, used; or to use it in the ordina1·y course of .husbandry; or to with One per centum per month interest thereon in addition, make the necessary repairs of buildings thereon; or reasonaljily up to the time of redemption, together with the amount of any to use wood or t~mber on the property t;terefor, or for fuel for assessments or taxes which the purchaseL" may have paid there- his family, while he occupies the property. on after purchase, and interest on such last-named amount at SEC. 30. R011ts and p1·ofits pending redemption. S.tatement the same rate; and if the purchaser be also a creditor having thereof and aedit therefor on .redemption.-The purchaser, from a . prior lien to that of the 1·edemptioner, other than the judg- the time of the sale until a i·edemption, and a redemptioner, ment under which such purchase was made, the amount 'Of such from the time of his redemption until another redemption, is other lien, with interest. If the property be so redeemed by entitled to receive the rents of the · property sold or the value a redemptioner, another redemptioner may, within sixty days of the use and occupation 'thereof when such property is in the after the last redemption, again redeem it from the last redemp- possession of a tenant. But when any such rents and profits tioner on paying the sum paid on such last redemption, with have been received by-the judgment creditor or purchaser, or by two per centum thereon in addition, and the amount of any a redemptioner, or by the assignee of either of them, from property assessments or taxes which the last rCdemptioner may have paid thus sold preceding such redemption, the a.mountS; of stich rents thereon after rrdemption by him, with -interest on su~h last- and profits ,shall be a credit upon the 'redemption money to be named amount, and in additi?n, the amount of any liens held paid; and, if a later redemptioner or the ~judgment debtor, beby said last redemptioner prior to his own, with interest. The fore the expiration of the time allowed for such redemption deproperty may be again, and as often as a redemptioner is so mands in writing of such creditor, purchaser, or prior redempdisposed, redeemed from any previoiis redemptioner within sixty tioner, or his assigns, a written and verified statement of the _ days after the last redemption, on paying the sum paid on the amounts of the rents and profits thus received, the period of last previous redemption, with two per centum thereon in ad- redemption is extended five days after such demand is comdition, and the amounts of any assessments or taxes which the plied with and such sworn statement given to such later reOemplast m·evious redemptioner paid after the redemption thereon, tioner or debtor. If such statement is not so given within one , with interest thereon, nnd .the amount of any liens held bY the ll\onth from and after such dem3.nd, such redeinPtioner or debtor }ast redemptioner prior to his own, with interest. Written no- may bring an action to compel an accounting and disclosure of tice of any redemption must be given to the officer who made such rents and profits, and- until fifteen da'.y~ from and after the sale and a duplicate filed with the registrar of deeds of the the final deter?nination of such action, •tlw right of reder.1ption province, and if a1,1y assessments or taxes are paid by ffie re- is extended W such redemptioner or debtor. 104 THE LAWYERS' JOURNAL February 15, 1940 SEC. 31. Deed and JIQHes11ion to be given a.t expiration of redemption period. By whom executed or given.-If no redemption be made within twelve months afte1· the sale, the purchaser, or his assignee, is entitled to a conveyance and possession of tlie property; or, if so 1·edcemed, whenever sixty 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; !>ut in ·all cases the judgment debtor shall have the entire period of twelve monthi;; 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 later case shall have the same validity as though the officer making the sale had continued in office and executed it. .Th~ possession shall be given bY the same officer if no third parties are actually hold"ing the p'roperty adversely to the judgment debklr. SEC. 32. When pm·chaser of propM·ty may recover price from judgment creditor. When he may have judgment ' revived.-lt the purchaser of real property sold on execution, or his successor in interest, be ' evicted therefrom in ·consequence of irregularities in the proceedings concerning the sale, or because the judgment has been reversed or set aside, or because a third person has vindicated his claim to the prnperty, he niay in a proper action recover the price paid, with interest, from the judgment creditor. If the purchaser of property at such official sale, or his successor in interest, fail to recover possession in • consequence of irregularities in the Proceeditlgs concerniilg the sale, or because the propeity' sold was not subject to execution and sale, the court having jurisdiction thereof shall, after notice and on motion of such party in interest, or his attorney, revive the original fudgment in the name of the petitioner, for the amount paid by such purchaser at the sale, with interest thereon from the time of payment at the same rate that the original judgment bore; and the judgment so revived shall have the same force and effect as would an original judgment of the date of the revival and no more. SEC. 33. Right fo contribution or -reirnbursement.-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 against several, and is upo~ an obligation of one of them, as security for another, arid the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. SEC. 34. Exam1·nation 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 a judge of the Court of First Instance of the province in which the judgment was rendered or from which the execution was rettirned, 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 ahd place; and such proceedings may thereupon be had for the application of the property and income of the judgment d~btor toward the satisfaction of the judgment. But no judgment debtor shall be so required to appear before a judge of first instance or commissioner out of the province in which such debtor resides or is found. SEC. 35. Examination of debtor of judgment debtor.-After the return of an execution against the property of a judgment debtor, or of one of the several debtors in the same judgment, unsatisfied in whole or in part, and upon proof, by affidavit of a party or otherwise, to the satisfaction of the judge, that a p~r SO:'I, 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 appoi.nted 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, cor~ poration, 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 prope1· . . SEC. 36. Conduc~ of exantination and. en/Qrcing attendqnce.-Examinations had in accordance with the two preceding sections shall ~ot 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 · answe1·s before a judg'e 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. A party or other person may be compelled, by an ordeL· or subpc:ena, to attend before the judge or commissioner to testify, and upon failure to obey such order or subpcena, or to be sworn; or to answer as a wit..- ness, or to .subscribe his deposition, may be punished for contempt as in other cases. · · SEC. 37. DeOtor 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 tli.e judgment creditor on the execution. SEC. 38. Orde-r 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 of the holders of such property ; and if, upon an 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 judg_ e may order that he pay the judgment in fixed monthly installments, a11d upon his failure to p~y .an~ such installment when due without good excuse may pumsh him for ·contempt. SEC. 39. Appointment and bond of receive1·.----'--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 p_ crson be appointed he shall give a bond as receiver as in ot~er cases. SEC. 40. When and how ascertainable interest of judgment debtor· in real estate sold.-If it appears that the judgment debtor has an interest in real est:ite, in the province in which proceedings are h:id, as mortgagor or mortgagee, or otherwise, and his interest can be asceytained as between himself and the person holding the legal estate, or the person having a lien on or interest in the same without controversy as to the interest of such person holding such legal Cstatc or interest therein, or lien on the same, the receiver tnay 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 approv.ed by the court before the execution of the deed. SEC. 41. Proceedings when indebtedness denied or amother 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 if you want to acquire a solid background of ,Feb1uary 15, 1940 THE LA WYERS' JOURN,,_L 105 to him 01' denies the debt, the court or ju<lgc may authorize, by an order made to that effeCt, the judgment creditot· to institute an action _ against such person 01' cor'poration !or the recovery of such interest or debt, forbi{I a tra'nsfer or other disposition of such interest or debt until an action can be comn)enced and prosecuted to judgment, and may punish disobedience of such orde1· as for contempt. Such order may be modified or vacated by the judge granting the same, or by the court in which the action is brought, at any time, upon such terms as may be just. SEC. 42. When satisfactio11 of judgment ente1·ed by clerk· or judge.-Satisfaction of A judgment shall be entered by the clerk or judge in his docket, and in his judgment b" ook if it be the judgment of a superior court, upon the return of an execution satisfied, or upon the filing of an admission of the satisfactk>n of the judgment executed and acknowledged in the same manner• as a conveyance of real property by the judgmei{t c11editor, or by the attorney of the..judgment creditor unless a revocation of his authority is fi led, or upon the indorsement of such admission by the judgment creditor or his attorney on the face of the record of .the judgment. SEC. 43. When admission oj satisfaction, or entry of satisfacti_on without ad1111·ssiu1t, orde1•ed.-Whenever a judgment is satisfied i~ fact; g~herwise than upon an executior., ~he 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 conrt may order either the judgment creditor Ol' attorney so tO "do, or may order the entry of satisfaction to be made without it. SEC. 44. Effect of jiidgment.-The effect of a judgment or final order i!'endered by a court 01" judge of the ·Philippines or ~f the United States, or of any State or Territory of the United States, having jurisdiCtion to pronounce the judgment or order, may be as follows: (a) In case of a judgment 01· order against a specific thing, or in respect to the prnbate of a will, or the administrntion of the estate of a deceased person, or in respect to the personal, · political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title of the thing, the will or administration, ol· the condition or relation of the person; however, the probate of a will or granting of letters of administrat~on shall only be ptima /acie evidence of the cleat}\ of the testator; or intestate; · (b) In other cases the judgment so ordered is, in respect to the matte1~ dfrectly adjudged, conclusive between the parties ;md ·their successor$ in interest by title subsequent to commencement of the action or special proceeding, litigating for the same thing and under the same title /and in the same capacity. SEC. 45. What is deemed to have been adjudged.-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 actuaily and necessarily included therein or necessary thereto. SEC. 46. Whe11 principal bound by judgment against wrety.-When the party is boµnd by a - record, and such party stands in the relation of surety for another, the latter is also bou~d 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. S!X. 47. Effect of ?"ecord of a court of the United Statel!. -The effect of a judicial record· of a court of the United States or of a cotil't of one of the States or territories of the United States, is the same in the Philippines as in the United States, or in the Sta"R or territory -where it was made, except that it can only be enforced here by an . action or special proceeding, and. except, also, that the authority of a guaulian, or executor, or administrator does not exte•nd beyond the jurisdiction of the GoVernment und~r which he wµs invested with his Authority. SEC. 48. Effect of foreign judg.ments.- The effect of a judgment of any other tribunal of a foreign country, having jurisdiction to pronounce the judgment; is as follows: , (a) fo l case of a judgment against a specific thing, the judgment is ronclus\ve 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. (TO BE OONTINUED] (Continued from page 95) 14. Courts Having Jurisdiction in Industrial Disputes. 1. The Court of Inditstrifll Relations.u1 The Court of Industrial Relations shall have power to decide and settle disputes between laborers and employers if these requisites ployces and employer, which is not the ca~e under Section 4. This contradiction is to b'e settled by 1·egarding Section 1 as a general pr.ovision and Section 4 as particular provision, and then, apply the rule of statutory construction that when a general provision conflicts with a particular provision the latter shall prevail. dustrial cunflicl.s. This fact is very evident upon rnading Commonwealth Act No. 103. In the first place, the act never uses the woi'k "exclusive" or its eqqivalent when it designated the powers and duties of the Court of Industrial Relations; furthermore, only cases which received the certification of the Secretary of Labor may be heard by thf court; as such, -fhe act admits the conclusion that cases without such certification are still within the jm·isdiction of the ordinary courts of the Philippines. exist: a. The dispute must be one causing or likely to cause a str'.ke or loc.kout; b. The dispute must be dne to differences as regards wages, sha1·es or compensation, hours of work or conditions of employment; c. The number' of employees Ol" laborers involved in the dis1mte must exceed thirty; d. The industrial dizyute is submitted to the Court by the Secretary of Labor, or by any or both of the parties to the controversy certified by the Secretary of Labor as existing and proper to be dealt '"ith by the court for the sake Of public interest. These i-equisites may be gathered from the words of Section 4, Commonwealth Act No. 213. One should note that there seems to be a confEct between this E~ction and Section 1 of the same Act. The latter seems to bestow jurisdiction on the Court of Industrial Relations "to decide and settle any question, matter or dispute" between em,., Organized un<ler Commonwealth Act. No. 103. 2. Other Courts. The organization of the Court of Industrial Relations. did not have the effect of depriving ordinary Courts of Justice the jurisdiction of decidi~g inCONCEPT OF LIBERT¥ Liberty does not import "an absolute right in each person to be, at all times and in a!I circumstances, wholly freed from restraint. There are manifold restraints to which ev'ery> person is necessarily subject /or the common good. On any other basis, org..nized society . could not exist with safely lo its members. Society based on the rule that each one is a law unto himself would soon be confronted With disorder and anarchy. Real liberty for. all could 'not e•id under the operaliori of a principle which recognizes the right of each" individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. "' "' "' There is, of course, a sphere within which the individual may assert the supremacy of his o.wn will, '"nd rightfully dispute the authority of any human government-especially of any free governmen_t ~xisting under- a written Constitulion~to interfere with the exercise of that will. But ii is equally true that in every well-ordered society charged with the duty of conserving the safely of its members, the rights of the individu0al in respect of his liberty may al times, under the promure of great dangers, be 1Ubjecled to such restraint to be enforced by reasonable regulations, as the safety of the general public mtiy demand." (Harla·n, J., in :.lt1cogson vs. Massachuseth ( 1905) 197 U. S., 11.) (Cited by Justice Malcolm in Rubi v. Provincia l Bot1rd of Mindoro, 39 Phil.,bb0,704-705.) ' legal culture, read the LAWYERS' JOURNAL