Pagarigan, Jacklyn Chriselle B.

Remedial Law

Rules of Civil Procedure used the words Motu Proprio, Own

Initiative, or Outright"
Rule 3, Section 11 : Misjoinder and non-joinder of parties. Neither
misjoinder nor non-joinder of parties is ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage the action and on such terms as
are just. Any claim against a misjoined party may be severed and proceeded
with separately.

Rule 8, Section 12 : Striking out of pleading or matter contained therein.

Upon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these Rules, upon motion made by a
party within twenty (20) days after the service of the pleading upon him, or
upon the court's own initiative at any time, the court may order any pleading
to be stricken out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out therefrom.

Rule 9, Section 1. Defenses and objections not pleaded. Defenses and

objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction over the subject matter,
that there is another action pending between the same parties for the same
cause, or that the action is barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim. (2a)

Rule 10, Section 4 : Formal amendments. A defect in the designation of

the parties and other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the action, at its initiative
or on motion, provided no prejudice is caused thereby to the adverse party.

RULE 12 Section 2. Action by the court. Upon the filing of the motion,
the clerk of court must immediately bring it to the attention of the court
which may either deny or grant it outright, or allow the parties the
opportunity to be heard. (n)

Rule 12, Section 4 : Effect of non-compliance. If the order is not obeyed,

or in case of insufficient compliance therewith, the court may order the
striking out of the pleading or the portions thereof to which the order was
directed or make such other order as it deems just.
Rule 17, Section 3 : Dismissal due to fault of plaintiff. If, for no justifiable
cause, the plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any order of
the court, the complaint may be dismissed upon motion of the defendant or
upon the court's own motion, without prejudice to the right of the defendant
to prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court.

Rule 23, Section 1 :. Depositions pending action, when may be taken.

By leave of court after jurisdiction has been obtained over any defendant or
over property which is the subject of the action, or without such leave after
an answer has been served, the testimony of any person, whether a party or
not, may be taken, at the instance of any party, by deposition upon oral
examination or written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 21. Depositions shall
be taken only in accordance with these Rules. The deposition of a person
confined in prison may be taken only by leave of court on such terms as the
court prescribes.

Rule 23, Section 24 : Failure of party giving notice to serve subpoena. If

the party giving the notice of the taking of a deposition of a witness fails to
serve a subpoena upon him and the witness because of such failure does not
attend, and if another party attends in person or by counsel because he
expects the deposition of that witness to be taken, the court may order the
party giving the notice to pay to such other party the amount of the
reasonable expenses incurred by him and his counsel in so attending,
including reasonable attorney's fees.

Rule 24, Section 4 : Order and examination. If the court is satisfied that
the perpetuation of the testimony may prevent a failure or delay of justice, it
shall make an order designating or describing the persons whose deposition
may be taken and specifying the subject matter of the examination and
whether the depositions shall be taken upon oral examination or written
interrogatories. The depositions may be taken in accordance with Rule 23
before the hearing.

Rule 25, Section 6 : Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and to prevent
a failure of justice, a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal.
Rule 32, Section 2. Reference ordered on motion. When the parties do
not consent, the court may, upon the application of either or 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 for carrying a judgment
or order into effect.

RULE 41 Section 13. Dismissal of appeal. Prior to the transmittal of the

original record or the record on appeal to the appellate court, the trial court
may motu propio or on motion dismiss the appeal for having been taken
out of time.

Rule 44, Section 6. Dispensing with complete record. Where the

completion of the record could not be accomplished within a sufficient period
allotted for said purpose due to insuperable or extremely difficult causes, the
court, on its own motion or on motion of any of the parties, may declare that
the record and its accompanying transcripts and exhibits so far available are
sufficient to decide the issues raised in the appeal, and shall issue an order
explaining the reasons for such declaration. (n)

RULE 46, Section 5. Action by the court. The court may dismiss the
petition outright with specific reasons for such dismissal or require the
respondent to file a comment on the same within ten (10) days from notice.
Only pleadings required by the court shall be allowed. All other pleadings and
papers, may be filed only with leave of court. (n)
RULE 47, Section 5. Action by the court. Should the court find no
substantial merit in the petition, the same may be dismissed outright with
specific reasons for such dismissal.

Rule 50, Section 1. Grounds for dismissal of appeal. An appeal may be

dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:

(a) Failure of the record on appeal to show on its face that the appeal
was taken within the period fixed by these Rules;
 (b) Failure to file the notice of appeal or the record on appeal within the
period prescribed by these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as
provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No.
803, 17 February 1998)

(d) Unauthorized alterations, omissions or additions in the approved

record on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of
copies of his brief or memorandum within the time provided by these
Rules;

(f) Absence of specific assignment of errors in the appellant's brief, or

of page references to the record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the
correction or completion of the record within the time limited by the
court in its order;

(h) Failure of the appellant to appear at the preliminary conference

under Rule 48 or to comply with orders, circulars, or directives of the
court without justifiable cause; and

(i) The fact that the order or judgment appealed from is not
appealable. (1a)

RULE 50, Section 2. Dismissal of improper appeal to the Court of Appeals.

An appeal under Rule 41 taken from the Regional Trial Court to the Court
of Appeals raising only questions of law shall be dismissed, issues purely of
law not being reviewable by said court. Similarly, an appeal by notice of
appeal instead of by petition for review from the appellate judgment of a
Regional Trial Court shall be dismissed. (n)

An appeal erroneously taken to the Court of Appeals shall not be transferred

to the appropriate court but shall be dismissed outright.
RULE 56, Section 5. Grounds for dismissal of appeal. The appeal may be
dismissed motu proprio or on motion of the respondent on the following
grounds:

(a) Failure to take the appeal within the reglementary period;

 (b) Lack of merit in the petition;

(c) Failure to pay the requisite docket fee and other lawful fees or to
make a deposit for costs;

(d) Failure to comply with the requirements regarding proof of service

and contents of and the documents which should accompany the
petition;

(e) Failure to comply with any circular, directive or order of the

Supreme Court without justifiable cause;

(f) Error in the choice or mode of appeal; and

(g) The fact that the case is not appealable to the Supreme Court. (n)

RULE 59, Section 8. Termination of receivership; compensation of receiver.

Whenever the court, motu proprio or on motion of either party, shall
determine that the necessity for a receiver no longer exists, it shall, after due
notice to all interested parties and hearing, settle the accounts of the
receiver, direct the delivery of the funds and other property in his possession
to the person adjudged to be entitled to receive them and order the
discharge of the receiver from further duty as such. The court shall allow the
receiver such reasonable compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated party, or apportioned, as
justice requires.

RULE 61, Section 5. Enforcement of order. If the adverse party fails to

comply with an order granting support pendente lite, the court shall, motu
proprio or upon motion; issue an order of execution against him, without
prejudice to his liability for contempt. (6a)

RULE 63, Section 5. Court action discretionary. Except in actions falling

under the second paragraph of section 1 of this Rule, the court, motu
proprio or upon motion, may refuse to exercise the power to declare rights
and to construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to the action, or in
any case where the declaration or construction is not necessary and proper
under the circumstances. (5a, R64)

RULE 64, Section 6. Order to comment. If the Supreme Court finds the
petition sufficient in form and substance, it shall order the respondents to file
their comments on the petition within ten (10) days from notice thereof;
otherwise, the Court may dismiss the petition outright. The Court may also
dismiss the petition if it was filed manifestly for delay or the questions raised
are too unsubstantial to warrant further proceedings. (n)

RULE 70, Section 5. Action on complaint. The court may, from an

examination of the allegations in the complaint and such evidence as may be
attached thereto, dismiss the case outright on any of the grounds for the
dismissal of a civil action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue summons. (n)

RULE 70, Section 7. Effect of failure to answer. Should the defendant fail
to answer the complaint within the period above provided, the court, motu
proprio or on motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to what is prayed
for therein. The court may in its discretion reduce the amount of damages
and attorney's fees claimed for being excessive or otherwise unconscionable,
without prejudice to the applicability of section 3 (c), Rule 9 (6, RSP)

RULE 71, Section 4. How proceedings commenced. Proceedings for

indirect contempt may be initiated motu propio by the court against which
the contempt was committed by an order or any other formal charge
requiring the respondent to show cause why he should not be punished for
contempt.