Deposition before action – called in the past as perpetration of testimonies.
Strictly, it is not a mode of discovery, as modes of discovery assumes that there is a pending case in court. A deposition before action does not require an action to be pending, and is thus treated as an independent action by itself. This is availed of by filing a Petition for Perpetration of Testimony, as there is no action filed yet.
Since this is an independent proceeding, with what court should we file the petition?
Petition to Perpetuate Testimony – RTC. If we follow BP 129, that petition would be cognizable under the RTC since it is an independent action incapable of pecuniary estimation. Regardless of the contemplated action to which we are going to file, a Petition to Perpetuate Testimony is always cognizable by an RTC.
If there is already a complaint that is filed and an answer has been filed by the defendant, the court will allow the use of the modes of discovery that will not require leave of court, such as the taking of a deposition. The court has allowed the use of these modes of discovery as a fishing expedition. Practically there is no limitation as to what matters can be inquired into insofar as availment of discovery measures are concerned. It is not required that the matters sought be discovered are relevant right away to the issues presented in the case.
When the law says that the statutes of discovery allow a fishing expedition, it does not mean to say that the statutes of discovery are intended only to gather evidence on behalf of the interested party. He may want to obtain information only for tactical advantage during the
course of the case. He does not have to present evidence in court information that is gathered by him via these modes of discovery.
But, even if the party is allowed to gather information through the modes of discovery what the law limits is the use of evidence gathered. So, if the plaintiff was able to gather information, let us say, from a witness who, according to the pre-trial brief of the defendant, would be principal witness for the defendant, it does not mean that the deposition given by such witness will readily be admissible in court in view of the testimony of this defendant’s witness. The fact that a party has taken the deposition of a potential witness does not mean to say that this potential witness will now be excused from going to court to give his testimony.
The giving of deposition is different from the giving testimony in open court. A party may give his deposition, but it does not mean that he is excused from testifying in court.
In fact, the Rules require that if the party has already given his deposition, he is still required to testify in court. His deposition will not take the place of his the testimony in court. This is because the taking of his deposition is only a discovery measure. The deponent does not appear before the trial court to testify. He gives his deposition not before a trial judge, but before another person who is simply authorized to administer oaths.
For instance, if the case is pending here in Manila, and there is a potential witness whose deposition is required by the plaintiff, and this witness is also a resident of Manila, can the plaintiff require this potential witness to give his deposition?
Yes.
After the potential witness has given his deposition, and later on, this witness
receives a subpoena
requiring him to give
testimony in open court, can the potential witness file a motion to quash subpoena as he had given a deposition of his testimony?
No, as the giving of a deposition cannot take the place of giving testimony in open court. The deponent can always be compelled to give his testimony in open court. Though his testimony may be a repetition of his deposition, it still does not matter. He still has to give his testimony in open court.
If the witness has given testimony in open court, what is the use of the deposition he had previously given?
Deposition previously given can be used to impeach the witness or corroborate the witness’ statements in the testimony. This is the principle of evidence called Laying The Predicate.
Laying the Predicate: Refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying
Q: What are the elements of laying the predicate?
A:
1. The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him;
2. He must be asked whether he made such statements and also to explain them if he
admits making those
statements (Riano, p. 327).
Q: When is the rule on laying the predicate inapplicable?
A: It is inapplicable if the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that adverse party who testifies may be impeached without laying the predicate as such prior statements are in the nature
of admissions of said adverse party. (Regalado, Vol. II, p.
852, 2008 ed.)
Q: What is the purpose of laying the predicate?
A: The purpose of which is to allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same.
Non-compliance with the
foundational elements for this mode of impeachment will be a ground for an objection
based on “improper
impeachment.” Over a timely objection, extrinsic evidence of a prior inconsistent statement without the required foundation is not admissible. (ibid)
Is it possible the deposition can be the testimony of the witness?
Yes, if the witness is more than 100 km from the court, and the witness invokes his viatory right, the deposition is allowed to take the deposition and the court can consider the deposition the testimony of the witness.
If a deposition has already been given, is it possible that his deposition will be treated as his testimony in open court?
That is also possible. If the deponent, if called upon by the court to testify, will invoke his Viatory Right.
Where the witness resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, the witness may invoke that he be not allowed to testify (Viatory Right). The witness can ask the court that he be excused from giving his testimony in open court. Even if the court issues a subpoena, the witness may ignore such subpoena. He cannot be cited in contempt for disobedience thereof. The remedy of the court is to allow the taking of the deposition, and the court can then consider the
deposition taken as his testimony. In other words, the fact that a deposition has already been taken from a person does not mean that the said person will be excused thereafter from going to court in order to be a witness. That is possible only in exceptional cases mentioned in Rules, one of them being when the witness invokes his Viatory right. Or even if there is no
viatory right, if the
witness/deponent is physically incapable of going to court in order to testify, the court can consider the deposition previously given as his testimony in court.
TRIAL
Can a trial court decide a case properly and validly if the court does not conduct a pre-trial or a trial for that matter?
Yes. Although pre-trial is mandatory and though trial must be had due to triable issues, the court can just skip these stages and render judgment. Ex.
Judgment by default, judgment on the pleadings.
Judgment by default – it is a judgment on the merits, no trial and pre-trial is conducted. Under Rule 9, if the court declares defendant in default since he did not file an answer, one of the options is to immediately render a judgment without requiring plaintiff to present his evidence ex parte.
Supposedly the defendant filed his answer, can we still do away with the trial?
Yes, we follow the special kinds of judgments whenever an answer is filed as found under the rules.
Special judgments where an answer is filed by defendant There can be a judgment on the pleadings if the answer does not raise any issue at all, or even admits the allegations in the pleadings.
There need to be no pre-trial and
trial. The plaintiff can move right away for a judgment on the pleadings.
Judgment based upon a compromise. Parties entered into a compromise agreement during pre-trial, the court concurs the validity of the compromise agreement, the court will render a judgment based upon compromise.
If you will notice that in the deliberation of the Rules on certain special kinds of judgments, like judgment on the pleadings, demurrer to evidence or summary judgment, the core element of these special kinds of judgments is that if there is a trial conducted by the court, it is not a full blown trial.
Summary Judgment– not a full-blown trial
Demurrer to Evidence– not a full-blown trial, only ½ of the trial contemplated under Rule 30.
Defendant does not present evidence.
But in instances where there are genuine triable issues, and the parties cannot agreed to the facts that should be given to the court so it can decide the case properly, the court will have to conduct a trial. The parties are then given the opportunity to make use of evidentiary rules, which is not required before trial.
There is no offer of evidence during pre-trial. At most, if there is evidence presented during pre-trial, it is only for marking them as exhibits. In a pre-trial brief, the parties just identify the documental evidence, the real evidence and testimonial evidence in the form of affidavits.
What the parties doe in pre-trial is to mark these as exhibits.
The trial of the case shall govern the pre-trial order. Only the issues specified in the pre-trial order will be the order of trial.
But this Rule is not strict as the Rules allow amendment to conform to evidence. If we follow strictly the Rules and we do not
allow amendment to conform to evidence, then the only issues specified in the pre-trial order will be tried.
If there are genuine triable issues, can the court do away with the trial?
Yes. The parties can help the court avoid a trial if the parties stipulates on facts that are in dispute. If the parties submit to the court complete stipulation of facts, that the court need only review the law applicable, then the court can render a decision on the case. The court need not conduct a trial. Trial is only a trial of factual issues. It cannot be a trial of legal issues. This is because the court is presumed to know the law applicable to a given state of facts. The trial contemplated under Rule 30 is a trial of facts in dispute. But if the parties decide that these facts are no longer disputed, and they manifested to the court that they agree fully to the existence of these facts, then the trial may be avoided. The next stage will just be the rendition of judgment.
In civil procedure, although there is a section in Rule 30 on written stipulation on facts, the court liberally allows verbal stipulations. Example, during the pre-trial conference, everything stipulated upon may be done verbally.But since the pre-trial conference is part of the court proceedings, everything is recorded by the court stenographer. The stenographer will transcribe the records and what the court will readily decide that there has been a stipulation of facts between the parties.
The order of trial in Rule 30 is the general rule. The order of trial follows the sequence of argumentation of pleadings. The affirmative side, the plaintiff, will first present his side, and then the negative side, the defendant, will set forth his defenses. Once the defendant is done presenting his evidence, then the court may allow parties to submit rebuttal evidence or even sur-rebuttal evidence. But the court does not
allow the presentation of rebuttal evidence or sur-rebuttal evidence, the trial will end after the defendant has rest his case.
Can the court terminate the memoranda to help the court in arriving at a decision.
Does failure to submit memoranda when required to do so result in dismissal of the case?
Yes, under Rule 17, for failure to obey lawful court orders.
The order of trial can be changed. If the court requires defendant to present evidence ahead, then the reversal of the order is had. If the defendant had set up the affirmative defense of, for example payment, then the order is reversed. Why is this only issue to be decided by the court? Should not the court first decide on whether or not the loan has really been extended by the plaintiff to the defendant? In our Rules, if the defendant sets up only an affirmative defense, that constitutes a hypothetical admission to the allegations contained in the complaint. That is found in Rule 6. So if the defendant hypothetically, for purposes of trial, that the defendant incurred a loan, then there really is no need for the plaintiff to prove the existence of the loan. It is now the duty of the defendant to show that the loan had been paid, so the order of trial is changed. Thus, the defendant is allowed to present his evidence first. Thereafter, the plaintiff does not find it necessary to file rebuttal evidence, the court will consider the case as submitted for decision.
Generally, when a trial is conducted by the court, it is the judge appointed in that sala that should sit in the proceedings.
But, there are certain instances under Rule 30 when the judge may excuse himself from presiding the case. They are all mentioned in the rules.
One is when the parties so agree, when the parties appoints a commissioner for presentation of evidence. Another is, when the branch clerk of court, upon delegation of the judge, may sit when the parties agree to an ex parte presentation of evidence.
However, in these instances, it is still the judge who will have to write and sign the decision.
There are 2 rules concerned with how a court in a civil case will conduct a trial.
1. Rule on consolidation and severance of cases
2. Trial by commissioner
Distinguish consolidation jointly tried (Sec.1, Rule
3. pending in the same court
What are the requisites for consolidation?
A:
1. Actions involving a common question of law or fact; and 2. There must be at least 2 actions pending before the same court (Sec.1, Rule 31).
Q: What are the ways of consolidation of cases?
A:
GR: Consolidation is discretionary upon the court to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, and simplify the work of the trial court and save unnecessary costs and expenses.
XPNs: Consolidation becomes a matter of duty when:
1. If two or more cases are pending before the same judge; or
2. If filed with the different branches of the same RTC and one of
Q: When may civil actions be suspended?
A:
1. If willingness to discuss a
possible compromise is
expressed by one or both parties;
or
2. If it appears that one of the
parties, before the
commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer (Sec. 8, Rule 30; Art. 2030, NCC).
Let us say there are 3 cases involving different parties, but all involve a common question of fact or law, pending in the same court, the court can issue an order of consolidation of the cases.
Consolidation of cases in different salas in a multi-sala court such as the Regional Trial Court of Manila: The internal rules of RTCs will be followed.
The judge in one branch cannot issue an order directing the other judges to agree to the consolidation of cases, as there is a need to coordinate with each branch first. One judge cannot simply issue an order to be obeyed by another judge of the same level. The internal rules of the RTC, where there are cases to be consolidated but which are assigned to different branches, is that if there is a consolidation consented by the judges, it will be tried by the sala with the lowest docket number.
If one case is in Manila RTC, the other in Bulacan RTC, both cases being those that can be validly consolidated, then the Supreme Court may order consolidation.
The opposite of consolidation is severance of several issues contained in one complaint. A trial court is also given the authority to tell the parties that the trial to be conducted only for the purpose for hearing either a 3rd party complaint, a counterclaim or a crossclaim, depending upon the discretion of the court
Trial by Commissioners
The language used in the Rule is not mandatory. This is upon discretion of the court.
Exceptional circumstances where there is mandatory
appointment of
commissioner:
1. expropriation proceedings, for determining just compensation 2. partition cases, where there is a need to determine how the property will be divided between co-owners
3. Rule 39, Sec. 36 and 37 When the judgment was not executed fully or no execution was had
SEC. 36. Examination of judgment obligor when judgment unsatisfied SEC. 37. Examination of obligor of judgment obligor. (in case partial satisfaction was had) 4. Settlement of estates of deceased persons, in statute of non-claims, money claims will have to be submitted to the settlement court within the statute of non-claims, and will have to be responded to by the executor or administrator. If administrator of the estate can contest the validity of these claims, these claims will become contested claims, then the court may appoint a commissioner to determine these contested claims.
Q: What is the statute of non-claims?
A: It is a period fixed by the courts for the filing of claims against the estate for examination and allowance.
(Herrera, Vol. III-A, p. 132, 2005 ed.)
Q: When should claims be filed?
A:
GR: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Such period once fixed by the court is mandatory.
Otherwise, the claims are barred forever.
Note: Where an executor or administrator commences an action, or prosecutes an action
Note: Where an executor or administrator commences an action, or prosecutes an action