CIVIL PROCEDURE A. Actions
D. EFFECT OF JUDGMENTS AND FINAL ORDERS (Sec 47, Rule 39)
These provisions embody the same rule that once a judgment has become final and executor, the issues therein should be laid to rest. There are two (2) main rules or aspects of Res Judicata:
a. Paragraph (b) is referred to as “bar by former judgment” or “res judicata” where in the first and second case there is identity of parties, of subject matter and of cause of action and the judgment on the merit in the first case constitutes a bar to the second case.
b. Paragraph (c) is known as “conclusiveness of judgment.” this concept refers to a situation where the judgment in the prior action operates as estoppel only as to the matters actually determined or necessarily included therein. Otherwise stated, ‘conclusiveness of judgment”
precludes relitigation of a particular fact or issue in another action between the same parties on a different claim or cause of action (Ybanez v. CA, 253 SCRA 540, 550). Simply put, where the second action between the parties is upon a different claim or demand, the judgment in the first case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment is rendered.
10. Enforcement and Effect of Foreign Judgments or Final Orders R. Provisional Remedies
1. Nature of provisional remedies
The term “provisional” means temporary, preliminary or tentative (Tan vs. Adre, 450 SCRA 145).
Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are writs and processes which are not main actions and they presuppose the existence of a principal action.
2. Jurisdiction over provisional remedies
The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even an inferior court may grant a provisional remedy in an action pending within and within its jurisdiction.
3. Preliminary Attachment
It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case (Davao Light and Power, Inc. vs. Court of Appeals, 204 SCRA 343).
a. Grounds for issuance of writ of attachment b. Requisites
Requisites
1. One of the grounds in Section 1 of Rule 57 exists, stated in an affidavit of the applicant;
2. No other sufficient security for the claim 3. Bond
4. Levy on attachment shall be preceded, or contemporaneously accompanied, by service of summons together with a copy of the application for attachment, the applicant’s affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines
c. Issuance and contents of order of attachment; affidavit and bond d. Rule on prior or contemporaneous service of summons
e. Manner of attaching real and personal property; when property attached is claimed by third person f. Discharge of attachment and the counter-bond
g. Satisfaction of judgment out of property attached 4. Preliminary Injunction
Preliminary injunction is an ancillary or preventive remedy where the court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action. It is merely a temporary remedy subject to the final disposition of the principal action.
a. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order b. Requisites
1. Verified application showing facts entitling the applicant to the relief demanded 2. Bond unless exempted by the court
3. Prior or contemporaneous service of summons, etc. upon the adverse party in the Philippines.
c. Kinds of Injunction d. When writ may be issued
At any stage of the action prior to the judgment or final order.
e. Grounds for issuance of preliminary injunction
f. Grounds for objection to, or for the dissolution of injunction or restraining order g. Duration of TRO
h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects
i. Rule on prior or contemporaneous service of summons in relation to attachment 5. Receivership
a. Cases when receiver may be appointed
The purpose of Receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of the appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied.
b. Requisites
1. Verified application with prior hearing 2. Bond
c. Requirements before issuance of an Order d. General powers of a receiver
1. To bring and defend, actions in his own name in his capacity as receiver;
2. To keep and take possession of the property subject of the controversy 3. To receive rents
4. To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver
5. To compound for and o compromise the same 6. To make transfers
7. To pay outstanding debts; to divide the money and the property that shall remain among the persons legally entitled to receive the same
8. Generally, to do such acts respecting the property as the court may authorize.
e. Two (2) kinds of bonds f. Termination of receivership 6. Replevin
a. When may writ be issued
Replevin may be a main action or a provisional remedy. As a a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. Used in this sense, it is a suit in itself.
b. Requisites
1. Affidavit of applicant of his ownership of the subject property and its actual market value 2. Bond double the value of the property
c. Affidavit and bond; Redelivery Bond
d. Sheriff’s duty in the implementation of the writ; when property is claimed by third party
When the court approves the application, the court shall issue an order and the corresponding writ of replevin describing the property alleged to be wrongfully detained. This order shall require the sheriff to take the property into his custody.
Upon receipt of the court order, the sheriff must (a) serve a copy of the order on the adverse party, together with a copy of the application, affidavit and bond; and (b) take custody of the property.
After the sheriff has taken custody of the property, he must keep it in a secure place.
Within 5 days from the taking of the property, the sheriff shall wait for the move of the adverse party.
If the latter does not object to the sufficiency of the bond after said period or performs acts to effect the return to him of the property take by the sheriff, the property shall be delivered to the applicant.