Title Civil Procedure Vol II - Riano.pdf ✅

Philippine Copyright 2011, 2016 by WILLARD B. RIANO ISBN 978-971-23-8038-9 No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritte:q, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. Any copy of this book without the correspond- ing number and t:1e signature of the author on this page either proceeds from an illegitimate source or is in possessio::1 of one who has no authority to dispose of the same. I II 05-RL-00065-0 ALL RIGHTS RESERVED BY THE AUTHOR OU85 No. _____ _ Printed by REH pRinrinQ comPnnq, inc. Typography & Creative Lithography 84 P Florentino St, Quezon Chy Tel. No. 857-77-Ti FOREWORD Like its initial edition, this work is the second volume of a two-volume material in Civil Procedure, and is prepared primarily for law students and bar reviewees as an aid to passing the annual bar examinations. Hence, its scope discloses no pretensions of being an exhaustive discussion of every procedural principle. In this volume, every effort is made to incorporate the available latest pronouncements of the Supreme Court. References are also made to the year when a particular topic was made the subject of the bar examinations. Like similar materials written before this edition, this work is a sincere and humble attempt to present procedural principles in a manner that would approximate their application to actual litigation. However, owing to the limited purpose of this material, it is not possible to include every procedural principle that may possibly arise in the litigation process although the reader lllay find within its pages the fundamental principles necef\sary to grasp the essence of procedural law. This material is written based on the theory that the study of procedure is not the difficult process it has traditionally been made to appear. As we had earlier stated in a similar treatise, there is a "need to provide a fresh look at the subject so the reader may see how the various pieces of the procedural puzzle neatly fit into a beautiful and logical scheme." Hence, the reader will find that the topics in this material constitute the rearranged versions of those found in the Rules of Court. The rearrangement is intended to bring down the study of procedure to a more simplified, yet workable level so the student of law may come to realize that procedural principles are neither abstract nor circuitous. iii
Again, as it has always been said, our deepest gratitude goes to our students and bar :reviewees, they being the primary sources of energy in the development of this work. Without them, this work would not have seen the light of day. Quezon City, Philippines January 25, 2016 iv WILLARD B. RIANO DEDICATION ... Ni:iia ... and her baby, Christopher ... V
vi CONTENTS Part I PROVISIONAL REMEDIES Preliminaries.............................................................................. 1 Nature of provisional remedies .. ... ... .... ............. ..... .. ... . .... ......... 1 Purpose of provisional remedies (Bar 1996) ................... ... .. .. .. . 2 Illustrations................................................................................ 2 Court with jurisdiction over provisional remedies................... 5 Kinds of provisional remedies under the Rules of Court......... 7 Deposit as a provisional remedy in the exercise of equity jurisdiction of the court..................................................... 8 Provisional remedies in criminal cases..................................... 9 Rule,57 ! PRELIMINARY ,:l'ITACHMENT Nature of preliminary ai;tachment............................................ 11 Grant of preliminary attachment is discretionary................... 13 Strict construction in favor of the defending party.................. 14 Who may avail of preliminary attachment............................... 14 Purpose of preliminary attachment.......................................... 14 Stage of the proceedings when preliminary attachment may be appiied for............................................................. 15 Kinds of attachments; distinctions (Bar 1975, 1990, 1999, 2012) ....................................................................... ,. 16 Grounds for the jssuance of a writ of preliminary attachment (cases where preliminary attachment is proper)............................................................................ 19 A. Recovery of a specified amount of money or damages ........................ :............................... 19 B. Action for money or property embezzled (Bar 1982) ......................................................... 21 C. Recovery of property unju�tly or fraudulently taken ......................... :....................................... 21 vii