Riano Civpro

Lex Cervus/Augustiniana
CODAL PROFICIENCY Q & A Copy in CIVPRO
1. P files a complaint against D in the RTC of Manila. Before D filed and served his answer
to the complaint, P filed a notice dismissing his complaint.
a) May the court refuse to dismiss the complaint? Why?

o The court may not refuse to dismiss the complaint of P.
If a plaintiff dismisses his own complaint by filing a notice of
dismissal at any time before the defendant serves his answer, then
such dismissal is a matter of right. It is now mandatory for the
court to issue an order confirming the order of dismissal. Hence,
the court may not refuse to dismiss the complaint of P. (Refer to
Section 1, Rule 17 of the ROC)
b) If the complaint was dismissed, may the same be re-filed? Why?

o The complaint may still be re-filed.
As a general rule, the dismissal upon notice by the plaintiff is
without prejudice. This means that the dismissal does not preclude
the plaintiff from filing another action against the same defendant
on the same cause of action or subject matter, except:
(a) when notice of the plaintiff states that the dismissal is
with prejudice, or
(b) (b) when the two-dismissal rule applies.
 The given case does not fall under any of the two exceptions and
therefore the dismissal is without prejudice. (Refer to Section 1,
Rule 17 of the ROC)
2. Describe the following briefly: (a) counterclaim; (b) cross-claim; (c) negative defenses;
and (d) reply
 A counterclaim is any claim, which a defending party may have

against an opposing party. It partakes of a nature of a complaint
and/or a cause of action by the defendant against the plaintiff.
(Refer to Section 6, Rule 6 of ROC)
 A cross-claim is any claim by one party against a co-party arising

out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein. (Refer to
Section 8, Rule 6 of ROC)
 Negative defenses refers to specific denial of material fact or facts

alleged in the pleading. (Refer to Section 11, Rule 8 of the ROC)
 A reply is a pleading, the function of which is to deny, or allege

facts in denial or avoidance of new matters alleged by way of
defense in the answer and thereby joins or makes issue as to such
new matters. (Refer to Section 10, Rule 6 of the RC)
3. (a) After the reply was filed by P, no other pleading was filed by either party. The court
forthwith motu propio set the case for pre-trial. Did the court act correctly? Why?
(b) Both parties and their counsels attended the pre-trial conference. For what possible
reason may the court dismiss the action? Why?
 The court did not act correctly when it motu propio set the case
for pre-trial. It is now the duty of the plaintiff to move ex parte
that the case bet set for pre-trial which must be done after the
last pleading has been filed and served. In this case, the court
motu propio set the case for pre-trial and this is not authorized
THE CREW: MELVIN RECONGCO, BUDDY AGUILAR, JONATHAN NICOLAS, ULY

CARINO nd 2NETTE CRUZ
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under the new rules. Hence, the court did not act correctly .(Refer
to Section 1, Rule 18 of the ROC)
 Even if both the parties and their counsels attended the pre-trial
conference, the court may still dismiss the action if they failed to
file their pre-trial briefs. Under the rules, the failure to file the pre-
trial briefs shall have the same effect as failure to appear at the
pre-trial. (Refer to Section 6, Rule 18 of the ROC)
4. (a) In the answer filed by the defendant, new matters were alleged. The plaintiff did not
file a reply to the answer. Is the plaintiff deemed to have admitted the allegations of new
matters? Why?
(b) Distinguish personal service from service in person.
 The plaintiff is not deemed to have admitted the allegations of

new matters. Filing a reply to the answer is not necessary. If a
party does not reply, then all the new matters alleged in the
answer are deemed controverted or denied. In this case, the
allegation of new matters by the defendant in his answer are
deemed controverted when the plaintiff fails to file a reply to his
answer. (Refer to Section10, Rule 6 of the ROC)
 Personal service is applicable to the service of pleadings, motions,

notices, orders, judgments and other papers. On the other hand,
service in person is applicable to the service of summons. (Refer
to Section 6, Rule 10 and Section 5, Rule 13 of the ROC)
5. (a) What are the requisites for extraterritorial service?
(b) In what instances may summons by publication be effected in an action in personam

against resident defendants?
 The requisites for extraterritorial service are as follows:

a. The defendant must be a non-resident defendant who is at
the same time not found in the Philippines at the time
summons is to be served; and
b. The action must be in rem or quasi in rem. (Refer to Section 15,
Rule 14 of the ROC)
 Summons by publication may be effected in an action in personam

against resident defendants in the following instances:
a. In any action where the defendant is an unknown owner, or
the like, or whenever his whereabouts are unknown and
cannot be ascertained with diligent inquiry; and
b. When any action is commenced against a defendant who

ordinarily resides in the Philippines, but who is temporarily out
of it. (Section 14 and 16, Rule 14 of the ROC)
6. (a) What are the requirements for an intervention?

(b) Distinguish between a permissive and compulsory counterclaim.

An intervention may be allowed when the person who desires to
intervene has a legal interest in the following:
a. The matter in litigation;
b. The success of either of the parties;
c. An interest against both parties; and
d. Is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of
an officer thereof. (Section 1, Rule 19 of the ROC)
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 A permissive counterclaim and a compulsory counterclaim may be

distinguished as follows:
a. A permissive counterclaim may be filed as an independent
action and is not barred even if not set up in the same action.
On the other hand, a compulsory counterclaim that a
defending party has at the time he files his answer shall be
contained therein, because a compulsory counterclaim not set
up shall be barred;
b. The docket and other lawful fees should be paid for a

permissive counterclaim, while such fees are not paid for a
compulsory counterclaim;
c. permissive counterclaim should be accompanied by a

certificate against forum-shopping and whenever required by
law, also by a certificate to file action issued by the Lupong
Tagapamayapa. This is because a permissive counterclaim is
not an initiatory pleading. On the other hand, a compulsory
counterlclaim does not require the certificates mentioned.
d. A permissive counterclaim must be answered by the party

against whom it is interposed otherwise he may be declared in
default as to the counterclaim. On the other hand, a
compulsory counterclaim that merely reiterates special
defenses are deemed controverted even without a reply.
(Refer to Civil Procedure by Dean Riano pp. 363 to 364)
7. PP filed an action against DD. Before the latter could answer, PP had a change of heart
and decided not to pursue the case. He asked you his possible remedial measure under
the circumstances. (a) What would your advice be? (b) Assume for the purpose of this
question only that the court refused to dismiss the case upon the filing by PP of a notice
of dismissal. Did the court act correctly? Why?
 If PP decided not to pursue the case, then I would advise him to file
a notice of dismissal of his complaint. If a plaintiff would like to
dismiss his complaint, he may file a notice of dismissal at any time
before service of the answer or a motion for summary judgment. In
this case, the answer by the defendant-DD to the complaint has not
yet been served to PP. Hence, it is advisable for PP to file a notice
of dismissal. (Section 1, Rule 17 of the ROC)
 The court did not act correctly. When a plaintiff files a notice of
dismissal of his own complaint at any time before the service of the
defendant’s answer, it is now the duty of the court to issue an order
confirming the dismissal. The dismissal of the complaint is
therefore mandatory on the part of the court. In this case, the court
refused to dismiss the case upon the filing by PP of a notice of
dismissal. . (same rule)
8. (a) Distinguish error of jurisdiction from error of judgment. (b) What is the remedy of a
defendant declared in default, assuming he learns of the default before judgment?
 An error of jurisdiction is one where the court, officer or quasi-judicial

body acts without or in excess of jurisdiction, or with grave abuse of
discretion that is tantamount to lack of jurisdiction and it renders the
judgment void or at least voidable and which error is correctible only
by the extraordinary writ of certiorari. On the other hand, an error of
judgment is one that the court may commit in the exercise of
jurisdiction and such an error does not make the court’s decision void
and it may serve only as a ground for reversal if it is shown that
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prejudice has been caused by it. An error of judgment can be reviewed

only by appeal. (Refer to p.156 of Civil Procedure by Dean Riano)
 A defendant who has been declared in default and who learns the
default before judgment has the remedy of filing a motion under
oath to set aside the order of default upon proper showing that his
failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. (Refer to Section
3b, Rule 9 of the ROC)
9. When is the filling of a reply advisable?
 The filing of a reply is advised if the defense in the answer is based

on actionable document otherwise the genuineness and due
execution of the document will be deemed admitted. (Refer to
10. PP filed an action against DD. The latter filed a motion to dismiss on the ground that the
claim states no cause of action. To resolve the issue, the court required the parties to
present their evidences for or against the motion. Is the court correct?
 The court is not correct in requiring the parties to present their

evidences for or against the motion to dismiss. When a motion to
dismiss filed by the defendant is on the ground that the claim
states no cause of action, the court shall limit itself to the four
corners of the complaint. In other words, the determination of
whether or not a claim states a cause of action may be made on the
basis of the allegations in the complaint and one need not go
beyond the complaint. In this case, the court should no longer
require the parties to present their evidences for or against the
motion because the allegations stated in the complaint will
determine whether the claim by the plaintiff states a cause of
action against the defendant.(Refer to Section 1-g and 2, Rule 16
of ROC; Philippine Sugar Institute vs CIR, 19 SCRA 47; Dabuco vs
CA, 322 SCRA 853)
11. In a collection suit against him, DD filed a motion to dismiss on the ground that the debt
has been paid. In the hearing of the motion, DD presented documentary evidences in
support of the motion. During the trial, DD did not present the evidences used by him in
the hearing of the motion. Judgment was therefore, rendered against him because of
lack of evidence. Decide.
 The court is not correct in rendering judgment against DD because

of lack of evidence. Evidence presented during the hearing of a
motion to dismiss shall automatically be part of the evidence of the
party presenting the same in the trial of the case. In this case, even
if the documentary evidence used by DD during the hearing of his
motion to dismiss were not presented during the trial of his case,
the said documentary evidence are still part of his evidence during
the trial. (Refer to Section 2, Rule 16)
12. In a suit filed against him, DD failed to file a motion to dismiss. He however, filed an
answer and alleged as affirmative defenses, some of the defenses mentioned in Rule 16.
He moved for a preliminary hearing on the grounds raised by him but the motion was
denied. Was the denial proper? Why?

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 The denial by the court of the motion for preliminary hearing is

proper. When the grounds for a motion to dismiss have been
pleaded as affirmative defenses, there will be a preliminary hearing
as if a motion to dismiss had been filed. But in such case, the
preliminary hearing shall be discretionary on the part of the court.
13. DD pleaded a compulsory counterclaim. PP filed a motion to dismiss his own suit. (a)
May the court refuse to dismiss the case? (b) Assume for the purpose of this question
only that the court dismissed the action. The court however, also dismissed the
counterclaim on the ground that the same being compulsory, it cannot stand alone for
independent adjudication. Comment on the action of the court.
 The court may refuse to dismiss the case. After the answer has
already been served to the plaintiff, the dismissal of the case by the
plaintiff is no longer a matter of right. The plaintiff shall file a
motion to dismiss and the court shall exercise its discretion on
whether or not it will dismiss the case. In this case, it is assumed
that the answer has already been served because the plaintiff -PP
filed a motion to dismiss his own complaint instead of a notice of
dismissal (Refer to Section 2, Rule 17 of the ROC)
 The court was not correct in dismissing the compulsory

counterclaim. If a complaint was dismissed through the motion of
the plaintiff, then such dismissal does not carry with it the
dismissal of a counterclaim, whether permissive or compulsory. It
is explicitly provided by the rules that the dismissal shall be
without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within fifteen (15) days
from notice of the motion the defendant manifests his preference
to have his counterclaim resolved in the same action. In this case,
the compulsory claim pleaded by the defendant – DD cannot be
dismissed even if the complaint by PP has already been dismissed.
Moreover, DD did not manifest his preference to have his
counterclaim resolved in the same action within fifteen (15) days
from the time he learns of the dismissal. Hence, the court is not
correct in dismissing the compulsory counterclaim. (same rule)
14. (a) In what instances may the court dismiss the action on its own motion?
(b) For failure to follow the lawful orders of the court and for repeatedly violating the
Rules, the court dismissed the action filed by PP in an order which mentioned nothing
whether the dismissal was with or without prejudice. May the case be re-filed? Why?
 The court may dismiss the action on its own motion under the
following instances:
a. Lack of jurisdiction over the subject matter;
b. Pendency of another action between the same parties for the
same cause;
c. Bar by prior judgment; and
d. Bar by statute of limitations. (Refer to Section 1, Rule 9 of the
ROC)
 The case can no longer be re-filed. If the action was dismissed due to the fault
of the plaintiff, the dismissal shall have the effect of an adjudication on the
merits, unless otherwise declared by the court. It is therefore a dismissal upon
the merits. In this case, the dismissal of the action by PP for his failure to
follow the lawful orders of the court and for repeatedly violating the rules is
with prejudice since it is not provided by the facts that the order of dismissal
by the court is without prejudice. Hence, the case can no longer be re-filed.
(Refer to Section 3, Rule 9 of the ROC)

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15. In the immediately preceding number, will the compulsory counterclaim also be
dismissed? Why?
 The compulsory counterclaim will not be dismissed. If a complaint

was dismissed due to the fault of the plaintiff, then the dismissal
shall be without prejudice to the right of the defendant to
prosecute his counterclaim in the same or a separate action. (same
rule)
16. Two days after the answer of the defendant was filed and served upon the plaintiff, the
latter filed an ex parte motion to set the case for pre-trial. The defendant upon having
been notified by the court of the pre-trial date, moved for its cancellation arguing that
the same was set prematurely. He contends that a pre-trial may only be set after the last
pleading has been filed. There being no reply filed on record, the pre-trial should be
cancelled. Comment.
 The pre-trial should be cancelled. It is clearly provided under the

rules that after the last pleading has been served and filed, it shall
be the duty of the plaintiff to promptly move ex parte that the case
be set for pre-trial. The last permissible pleading that a party may
file would be the reply to the answer. When the last pleading has
not yet been filed, the case is not yet ready for pre-trial. The last
pleading need not be literally construed as the actual filing of the
last pleading. But instead, it means the expiration of the period for
filing the last pleading for purposes of pre-trial. Since a reply shall
be filed within a period of ten (10) days after the answer has been
served, then the pre-trial shall only be held after the expiration of
the ten (10) day period. In this case, the plaintiff move ex parte to
set the case for pre-trial only two (2) days after the service of the
answer. Hence, the pre-trial should be cancelled. (Refer to Section
1, Rule 18 and Section 6, Rule 11 of the ROC; Sarmiento vs Juan,
120 SCRA 403)
17. Mr. DD was sued by Mr. PP for collection of a sum of money. It appears that Mr. DD
orally, but in the presence of several witnesses, promised to pay for the debt of Mr. BB in
favor of Mr. PP, said debt being evidenced by a duly signed promissory note. Mr. BB did
not pay, hence the suit against Mr. DD. If you were the counsel of Mr. DD, what would
be your immediate remedial measure for the protection of your client? Why?
 If I were the counsel of Mr. DD, I would file a motion to dismiss on

the ground that the claim on which the action is founded is
unenforceable under the statute of frauds. One of the contracts
which falls within the coverage of the statute of frauds is a special
promise to answer for the debt of another. This contract must be in
writing in order to be enforceable. If it is merely oral, the contract
can never be enforced against the other party. In this case, the
promise made by Mr. DD to pay the debt of Mr. PP is not in writing
but the promise was merely made orally. . (Refer to Section 1-i,
Rule 16 of the ROC and Article 1403 par. 2-b of the CC)
18. Assume that an answer was duly filed by you as counsel for Mr. DD and that answer did
not specifically deny under oath the promissory note executed by Mr. BB, what adverse
effect does the failure to make a specific denial under oath have on Mr. DD? Why?
 The adverse effect of failure to make a specific denial under oath of

the promissory note by Mr. DD will result to his implied admission
of the genuineness and due execution of the promissory note.
When the action is founded upon a document or an instrument, the
other party who has no intent of admitting the genuineness and
due execution of the document must contest the same by making a
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specific denial under oath. Otherwise, there will be an implied

admission of the genuineness and due execution of the instrument.
In this case, the failure of Mr. DD to make a specific denial under
oath of the promissory note will bar him questioning the
genuineness and due execution of the document since there is
already an implied admission on his part. (Refer to Section 8, Rule
8 of the ROC)
19. Mr. DD is the defendant in a suit for annulment of marriage filed by Mr. PP against him.
Despite the lapse of the reglementary period to answer, Mr. DD failed to file an answer.
As counsel for Ms. PP, what remedial step shall you undertake as a consequence of the
defendant’s failure to file an answer?
 As a counsel for PP, I just have to wait for the order of the court
provided by the rules. Under the rules, if the defending party in an
action for annulment of marriage fails to answer, the court shall
order the prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence
submitted is not fabricated. In this case, there is failure on the part
of the defendant in the annulment case to answer within the
reglementary period. Hence, I have to wait for the court order as
provided by the rules. (Refer to Section 3-e of Rule 9 of the ROC)
20. Assume that the suit is an action for support, would your answer be the same as in letter
(a)? Why?
 If the suit is an action for support, the answer will not be the same
as in letter (a). The defendant, in an action for support, who failed
to answer within the reglementary period, may be declared by the
court, upon motion of the claiming party with notice to the
defending party, and proof of such failure, in default.Unlike in
annulment case, there is a declaration of default of a defendant in
an action for support. (Refer to Section 3-e, Rule 9 of the ROC)
21. In a damage suit anchored on a quasi-delict, the defendant filed a motion to dismiss
based on the following grounds: lack of jurisdiction over the subject matter, prescription,
failure to state a cause of action and statute of frauds. The motion was however denied.
The defendant filed an answer repleading the same grounds as affirmative defenses and
included improper venue and lack of legal capacity to sue as additional grounds. The
defendant moved for a hearing and on his affirmative defenses and in the hearing, the
court found that the venue was indeed improper. On motion of the defendant, the
complaint was dismissed. Comment on the action of the court.
 The action of the court in dismissing the complaint based on

improper venue is not correct. Under the omnibus motion rule,
when a defendant files a motion to dismiss, he must be able to
include all grounds available and the grounds which were not
included in the motion shall be deemed waived. In this case, when
the defendant filed a motion to dismiss but he failed to include
improper venue as one of the grounds. He raised it in his answer as
an additional ground by way of an affirmative defense. Pursuant to
the omnibus motion rule, the ground of improper venue can no
longer be raised since it was already waived by the failure of the
defendant to invoke it in his motion to dismiss. Hence, the action of
the court in dismissing the complaint based on improper venue is
not correct. (Refer to Section 8, Rule 15 of the ROC)
22. The plaintiffs and the defendants together with their counsels attended the pre-trial
conference in a collection suit filed with the Regional Trial Court of Manila. It however,
appeared that the defendants failed to submit their pre-trial briefs. The plaintiff moved
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that they be allowed to present their evidence ex parte, which motion was granted by
the court. A motion for reconsideration filed by defendants of the court’s order was
denied. Is the order of the court tainted with grave abuse of discretion? Why?
 The order of the court in allowing the plaintiffs to present their

evidence ex parte is not tainted with grave abuse of discretion. If a
defendant during the pre-trial failed to submit his pre-trial brief,
then it shall have the same effect as failure to appear at the pre-
trial. Basic is the rule that when a defendant failed to appear during
the pre-trial, the court shall allow the plaintiff to present their
evidence ex parte. In this case, the failure of the defendants to
submit their pre-trial briefs is tantamount to their absence during
the pre-trial conference. (Refer to Section 6, Rule 18 of the ROC)
23. How may the non-appearance of a party in the pre-trial be excused?
 The non-appearance of a party in the pre-trial may be excused only

if a valid cause is shown therefore or if a representative shall
appear in his behalf fully authorized in writing to enter into an
amicable setllement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions and of
documents. (Refer to Section 4, Rule 18 of the ROC)
24. In an action for annulment of a contract based on fraud, the plaintiff alleged that “… On
August 5, 2003, defendant defrauded herein plaintiff in a sale of a car.” Because the
circumstances of the alleged fraud were not stated with sufficient clarity and
definiteness, the defendant filed a motion for bill of particulars indicating the details
desired. Is the motion the correct remedy under the circumstances? Why?
 The motion for a bill of particulars is the correct remedy under the
circumstances. If there is an ambiguity in all or some of the
allegations of the complaint which prevents the defendant from
preparing an intelligent response to the complaint, then the
defendant has the remedy of filing a motion for bill of particulars.
In this case, the circumstances of the alleged fraud were not stated
with sufficient clarity and definiteness. It is a basic rule that in all
averments of fraud, the circumstances must be stated with
particularity. (Refer to Section 5, Rule 18 and Section 1, Rule 12 of
the ROC)
25. If the motion for bill of particulars is denied, within how many days may the answer be
filed assuming that the motion was filed on the last day for the period to file a responsive
pleading?
 If the motion for bill of particulars was filed on the last day for the
period to file a responsive pleading, then the moving party still has
a period of not less than five (5) days within which to file his
responsive pleading. As provided under the rules, the moving party
may file his responsive pleading within the period to which he was
entitled at the time of filing his motion, which shall not be less than
five (5) days in any event. In this case, since the motion for bill of
particulars was filed on the last day for the period to file a
responsive pleading. (Refer to Section 5, Rule 12 of the ROC)
26. In a judgment rendered by the RTC of Manila, the defendant believed that the judgment
was not based on the law and the evidence. A motion for reconsideration was filed but
was subsequently denied. A petition for certiorari was filed with the Court of Appeals
within the period for appeal. Thirty days after, the plaintiff filed a motion for the issuance
of a writ of execution. If you were the trial judge, would you sustain the motion? Why?

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 If I were the trial judge, I would sustain the motion for the
issuance of writ of execution. Execution is a matter of right upon
the expiration of the period to appeal and no appeal was perfected
from a judgment or order that disposes of the action or proceeding.
Under the rules, the adverse party has a period of fifteen (15) days
from notice of the judgment or final order to make his appeal. If
the adverse party did not file an appeal but merely filed a special
civil action for certiorari, then the running of the fifteen (15) day
period will not stop until the judgment becomes final and executory
which will authorize the court to issue a writ of execution upon the
motion of the other party. In this case, a period of thirty (30) days
has already lapsed from the time of judgment and the adverse
party merely filed a petition for certiorari. Such action will not stop
the judgment from becoming final and executory even if it is filed
within the fifteen (15) day period, unless, it was accompanied by a
provisional remedy of injunction. (Refer to Section 1, Rule 39 of
the ROC)
27. What remedies are available under the following situations (no need to give details)
(a) the answer fails to specifically deny the material allegations in the complaint;
(b) The defendant fails to appear in the presentation of his evidence;
(c) The plaintiff fails to appear in a pre-trial conference;
(d) The complaint is unsigned;
(e) The demurrer to evidence filed by the defendant was denied, but correctly denied.
 If the answer fails to specifically deny the material allegations in

the complaint, then the plaintiff may file a motion for judgment on
the pleadings. (Refer to Section 1, Rule 34 of the ROC)
 If the defendant fails to appear in the presentation of his evidence,

then the plaintiff may move ex parte to submit the case for
resolution. (Refer to Section 5-g, Rule 30 and Section 1, Rule 36 of
the ROC)
 If the plaintiff fails to appear in the pre-trial conference, then the

defendant may file a motion to dismiss the case on the ground of
failure to prosecute on the part of the plaintiff. (Refer to Section 3,
Rule 17 and Section 5, Rule 18 of ROC)
 If the complaint is unsigned, then it may be remedied upon

showing that the same was due to mere inadvertence and not
intended for delay. (Refer to Section 3, Rule 7 of the ROC)
 If the demurrer to evidence filed by the defendant was correctly

denied, then the defendant has the remedy of presenting evidence
in support of his defense. (Refer to Section 1, Rule 33 of the ROC)
28. After the plaintiff rested his case, the defendant filed a demurrer to evidence. The
demurrer was denied. The court then rendered judgment in favor of the plaintiff. Did the
court act correctly? Why?
 The court did not act correctly. When a court denies a demurrer to
evidence, it should set the date for the reception of the defendant’s
evidence in chief. It should not proceed to grant the relief
demanded by the plaintiff. In this case, the court did not give the
defendant the opportunity to adduce evidence in support of his
defense but it rendered judgment in favor of the plaintiff. (Refer to
Northwest Airlines, Inc. vs CA, 284 SCRA 408; Section 1, Rule 33 of
the ROC)

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29. If the demurrer was granted, is certiorari the remedy of the plaintiff? Why?
 If the demurrer was granted, certiorari is not the remedy of the

plaintiff. When the court grants a demurrer to evidence filed by a
defendant, it is already considered as a judgment on the merits
which is appealable. It is also a rule that the remedy of certiorari
can only be resorted to if there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law. In this case,
the decision granting the demurrer to evidence may still be
appealed by the plaintiff. The plaintiff still has a remedy in the
ordinary course of law. (Refer to Section 1, Rule 33 and Section 1,
Rule 65 of the ROC)
30. If the plaintiff appealed to the higher court and the order of the trial court was reversed,
what is the remedy of the plaintiff?
 If the order of the trial court was reversed on appeal, then the
plaintiff has the remedy of filing a motion to submit the case for
resolution. In such case, the defendant has already waived the
right to present his evidence. The case will now be decided on the
basis of the evidence presented by the plaintiff. (Section 1, Rule 33
and Section 1, Rule 36 of the ROC)
31. Mr. PP filed a suit against Mr. DD for unlawful detainer. The latter lost and was ejected
from the property. Thereafter, Mr. DD filed an action for recovery of the value of the
improvements made on the property subject of the unlawful detainer suit. What remedial
step would you undertake as counsel for Mr. PP? Why?
 If I were the counsel for Mr. PP, I have any of the following
remedial step to undertake:
a. I will file an answer to his action for recovery of the value of the
improvements within fifteen (15) days from the service of the
summons; or
b. I will file a motion for bill of particulars if there is ambiguity in
the allegations of the complaint; or
c. I will file a motion to dismiss if there are grounds as provided
under the rules.
32. Mr. D, defendant in a civil case, attended the pre-trial together with his counsel.
Subsequently, upon motion of the plaintiff, the court allowed the latter to present his
evidence ex parte. What could have impelled the court in granting the motion of the
plaintiff? Explain.
 It is the non-filing by the defendant of his pre-trial brief which

could have impelled the court to allow the plaintiff to present his
evidence ex parte. Under the rules, the failure to file the pre-trial
brief shall have the same effect as failure to appear at the pre-trial.
So even if the defendant attended the pre-trial conference together
with his counsel, the plaintiff may still be allowed to present their
evidence ex parte if the defendant failed to file his pre-trial brief.
33. May the court, after the pre-trial conference, render a judgment on the pleadings motu
proprio? Why?
 The court, after the pre-trial conference, may not render judgment
on the pleadings motu proprio. A judgment on the pleadings always
a requires a motion filed by the claiming party. The court cannot
motu proprio render judgment on the pleadings. It can only direct
judgment on the pleadings on motion of the adverse party. Hence,
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the court may not render judgment on the pleadings motu proprio
after the pre-trial conference. (Refer to Section 1, Rule 34 and
Section 2-g, Rule 18 of the ROC)
34. Give five (5) purposes of the pre-trial.
 The five (5) purposes of the pre-trial are as follows:

a. The possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution;
b. The simplification of the issues;
c. The necessity or desirability of amendments to the pleadings;
d. The possibility of obtaining stipulations or admissions of facts
and of documents to avoid unnecessary proof; and
e. The limitation of the number of witnesses. (Refer to Section 2,
Rule 18 of the ROC)
35. Distinguish pre-trial in a civil case from pre-trial in a criminal case.

 The distinction between a pre-trial in a civil case from pre-trial in
criminal case are as follows:
a. The pre-trial in a criminal case is ordered by the court and no
motion is required from either party to call a pre-trial. In a civil
case, it is the duty of the plaintiff to promptly move ex parte
that the case be set for pre-trial.
b. The pre-trial in a criminal case is ordered by the court after
arraignment and within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused. In a civil
case, the pre-trial is set after the motion of the plaintiff which
motion is filed after the last pleading has been served and filed.
c. The pre-trial in a criminal case does not consider the possibility
of a compromise since it is not one of the enumerated purposes
under the rules of criminal procedure. In a civil case, the
possibility of an amicable settlement is an important objective.
I
d. In a criminal case, all agreements or admissions made or
entered during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel, otherwise, they
cannot be used against the accused. In a civil case, the
agreements admissions made are not required to be signed by
the parties and their counsels. They are contained in the pre-
trial order. (Refer to pp. 569 to 570 of Civil Procedure by Dean
Riano)
36. How is pre-trial called in an ordinary civil action as compared to pre-trial in summary
proceedings?
 In an ordinary civil action, a pre-trial may be called after the last

pleading has been filed and with the motion of the plaintiff. But
with respect to summary proceedings, a pre-trial may be called
within thirty (30) days after the last answer is filed. There is no
motion required on the part of the plaintiff. (Refer to Section 1,
Rule 18 of ROC and Part II, Section 7 of the Revised Rules on
Summary Procedure)
37. How may a trial be postponed on the ground of illness of counsel or a party?
 A trial may be postponed on the ground of illness of counsel or a

party upon compliance with the following requisites:
a. A motion for postponement stating the ground relied upon must
be filed; and
b. The motion must be supported by an affidavit or sworn
certification showing that (1) the presence of the party or
Page11
counsel at the trial is indispensable, and (2) that the character

of his illness is such as to render his non-attendance excusable.
38. How may a trial be postponed on the ground of absence of evidence?
 A trial may be postponed on the ground of absence of evidence

upon compliance with the following requisites:
a. A motion for postponement stating the ground relied upon must be
filed; and
b. The motion must be supported by an affidavit showing (1) the
materiality or relevancy of such evidence, and (2) that due
diligence has been used to procure it. (Refer to Section 3, Rule 30
of the ROC)
39. Mr. D, defendant in a civil case believes that the plaintiff, Mr. P did not live up to his
burden of proof and that under the law and the facts, he is not entitled to relief. What
remedial step would you undertake as counsel for Mr. D?
 If I were the counsel for Mr. D, I would undertake the remedy of

filing a demurrer to evidence. Under the rules, after the plaintiff has
completed the presentation of his evidence the defendant may
move for dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief. This is otherwise known
as a demurrer to evidence. The rule allows the defendant to have
the proceedings abbreviated if the plaintiff’s evidence is insufficient
to prove his cause of action. In this case, the plaintiff – Mr. P fails,
after presenting his evidence, fails to live up to his burden of proof
and under the law and the facts, he has shown no relief. (Refer to
40. In an election protest, the protestee filed a demurrer to evidence. The COMELEC denied
the demurrer. May the protestee present his evidence as a matter of right? Why?
 The protestee may not present his evidence as a matter of right.

With respect to election cases, the provisions of the Rules of Court
shall not be inapplicable, except by analogy or in a suppletory
character and whenever practicable and convenient. (Refer to
41. (a) What are the requisites for a motion for reconsideration of a judgment? (b) How
about the requisites for a new trial?
 The requisites for a motion for reconsideration of a judgment are as

follows:
a. The damages awarded are excessive;
b. The evidence is insufficient to justify the judgment or final
order; or
c. The decision or final order is contrary to law. (Refer to Section
1, Rule 37 of the ROC)
 The requisites for a motion for new trial of a judgment are as follows:
a. Fraud, accident, mistake, or excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights.
b. Newly discovered evidence, which he could not, with reasonable

diligence, have discovered and produced at the trial, and which
if presented would probably alter the result. (Refer to Section 1
of Rule 37 of the ROC)
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42. Mr. X, a resident of Batangas filed an action for unlawful detainer against Mr. Y, a
resident of Cavite involving a parcel of land located in Laguna. The action was filed in the
Municipal Trial Court of Batangas. May the MTC of Batangas dismiss the action motu
propio based on lack of jurisdiction?
 The MTC of Batangas may not motu propio dismissed the action for
lack of jurisdiction. When it comes to civil cases like an unlawful
detainer, venue has nothing to do with jurisdiction. But improper
venue can be the subject of a motu propio dismissal by the court in
cases covered by the rule of summary procedure. Since an unlawful
detainer case is covered by summary of summary procedure, it may
be dismissed by the court motu propio on the ground of improper
venue and not on the ground of lack of jurisdiction. Hence, the
complaint may not be dismissed on the ground of lack of
jurisdiction. (Refer to Section 4, Rule 2 of the Revised Rules on
Summary Procedure)
43. In problem no.42, may it dismiss the action motu propio based on improper venue?
Why?
 The MTC of Batangas may dismiss the action motu propio based on
improper venue. When it comes to cases covered by the rule of
summary procedure, the court is authorized to dismiss the case
motu propio including the ground of improper venue. In this case,
an action for unlawful detainer falls within the coverage of the
Rules on Summary Procedure. (same rule)
44. In problem no.42, assume that the action was merely for damages to the property
subject of the lease. Assume further that the contract of lease provides that any action
arising from the contract shall be filed in Laguna. If the action for damages is filed in
Batangas, is the dismissal pursuant to a motion to dismiss based on improper venue
proper?
 The dismissal pursuant to a motion to dismiss based on improper
venue is not proper. If the stipulation by the parties as to their
venue of action is not restrictive, then the rules on venue provided
under the rules of court may be applied. Being a personal action, an
action for damages could be filed either at the residence of the
plaintiff or at the residence of the defendant. In this case, the filing
of the action for damages in Batangas is a proper venue because it
is the place residence of the plaintiff – X. Moreover, the stipulation
of the venue of action is not restrictive. Hence, the dismissal
pursuant to a motion to dismiss based on improper venue is not
proper. (Refer to Section 2 and 4, Rule 4 of the ROC)
45. In problem no.42, may the action be filed in Cavite? Explain your answers.
 The action may be filed in Cavite. When it comes to personal

action, like an action for damages, it can be instituted either at the
place of residence of the plaintiff or the residence of the defendant.
In this case, Cavite is the place of residence of the defendant and
the stipulation of venue by the parties is not restrictive.Hence, the
action may be filed in Cavite. (same provision)
46. Mr. X filed a suit against Mr. Y for forcible entry. While the complaint alleged that Mr. Y
entered the land with strategy and stealth, Mr. X failed to allege that he was in prior
possession of the property occupied by the defendant, Mr. Y. Mr. Y filed a motion to
dismiss based on lack of cause of action. Will the action prosper?
 The motion to dismiss based on lack of cause of action will not

prosper. When a case is covered by the rule on summary procedure,
like forcible entry, there are only two grounds for filing a motion to
dismiss which are (a) lack of jurisdiction over the subject matter, or
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(b) failure to comply with the barangay conciliation proceedings. In

this case, lack of cause of action is not a ground for filing a motion
to dismiss a case for forcible entry. The action will not prosper.
 NOTE: The remedy of Mr. Y is to file an answer and invoke the

ground lack of cause of action by way of an affirmative defense.
(Refer to Section 19-a, Rule 4 of the Revised Rule on Summary
Procedure)
47. Mr. X filed an action against Mr. Y to collect the following debts incurred on different
occasions by Mr. Y: (1) P150,000 due on January 1, 2002; (2) P200,000 due on February
5, 2002; (3) P100,000 due on April 1, 2002; and (4) P150,000 due on May 1, 2002. Is
Mr. X supposed to file a single complaint to collect various debts? Why?
 Mr. X is not supposed to file a single complaint to collect various

debts. Even if the provisions of the Rules of Court allow a party to
assert in one pleading, in the alternative or otherwise, as many
causes of action as he may have against an opposing party, the
joinder of causes of action is not compulsory but merely permissive.
In this case, loans that were extended by Mr. X to Mr. Y on different
dates constitute separate causes of action and may be the subjects
of separate complaints at the option of Mr. X., the claiming party.
48. May he file a single complaint to collect all the debts even if they arose out of the same
transactions? Why?
 Mr. X may file a single complaint to collect all the debts. If the
debts are of the same nature, the rule permits the claiming party to
assert in one pleading, in the alternative or otherwise, as many
causes of action as one party may have against an opposing party.
This is to prevent multiplicity of suits by including in one action all
claims by one party against another. In this case, since the debts
are all money obligations, then Mr. X may assert in a single
complaint all the debts he has extended to Mr. Y on different dates.
This is to prevent multiplicity of suits on the part of Mr. X (same
rule)
49. May an action for forcible entry be joined with the causes of action above?
 An action for forcible entry may not be joined with the causes of
action above. When it comes to joinder of causes of action, it is a
basic rule that the joinder shall not include special civil actions or
actions governed by special rules. In this case, an action for forcible
entry is a special civil action. (Refer to Section 5-b, Rule 2 of the
ROC)
50. Mr. X filed an action against Mr. Y for damages in the RTC of Manila. The complaint
alleges an amount of P500,000. The evidence during the trial revealed that the debt is
only P50,000, an amount cognizable by the MeTC of Manila. The RTC of Manila motu
proprio dismissed the action based on lack of jurisdiction. Comment on the dismissal.
 The dismissal of the action by the RTC of Manila based on lack of

jurisdiction is not correct. Basic is the rule that jurisdiction over the
subject matter is determined by the allegations of the complaint. If
the allegations of the complaint show that the court has
jurisdiction, then the court shall continue to assume jurisdiction
until the final disposition of the case even if the amount proven
during the trial is not within its jurisdiction. In other words,
jurisdiction is determined by the allegations in the complaint and
not by the amount proven. In this case, the complaint alleges
Page14
damages amounting P500,000.00 which is within the jurisdiction of

the RTC of Manila. Even if the damages proven was merely
P50,000.00, the RTC of Manila shall continue to assume jurisdiction
until the final disposition of the case. (Refer to Dionisio vs. Sioson
Puerto, 60 SCRA 471 and Ceroferr Realty Corporation vs CA ,
February 5, 2002)
51. Ms. W married Mr. H because of force and intimidation. The father of W filed an action
for the annulment of the marriage. May a motion to dismiss prosper based on lack of
legal capacity of the plaintiff to sue? Why?
 The motion to dismiss based on lack of legal capacity of the plaintiff

to sue will not prosper. A person lacks the legal capacity to sue (a)
when he does not have the necessary qualifications to appear at
the trial, such as when the plaintiff is not in the full exercise of his
civil rights, and (b) when the plaintiff does not have the character
or representation he claims, which is a matter of evidence. In this
case, the father has the legal capacity to sue but he has no
personality to sue because he is not the real party in interest. A real
party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the
suit. If an action is not brought by a real party in interest, the case
shall be dismissed on the ground that the complaint states no cause
of action. When it comes to annulment of marriage, the real party
in interest should be the offended spouse—Ms. W and not her
father. So, Ms. W is the one who should institute the action for
annulment. (Refer to Section 2, Rule 3 and Section 1-g, Rule 16 of
ROC and Lunsod vs Ortega, 46 Phil. 664)
52. A, B and C are businessmen doing business under the name and style PEP Boys, Inc. The
name is neither registered nor with a juridical personality. Because of a failed business
transaction with Mr. Y, the latter sued Pep Boys, Inc. May it be dismissed based on lack
of legal capacity of the defendant to be sued? Why?
 The complaint may not be dismissed based on lack of legal capacity

of the defendant to be sued. When two or more persons not
organized as an entity with juridical personality enter into a
transaction, they may be sued under the name by which they are
generally known. An important example of this is a corporation by
estoppel. The persons composing a corporation by estoppel are
precluded from denying the existence of their corporation and shall
be liable as general partners for all debts, liabilities, and damages
incurred as a result thereof. A corporation by estoppel may be sued
under the name by which it is known. In this case, PEP Boys, Inc.
can be considered as a corporation by estoppel. The businessmen--
A, B and C are doing business under the said name even if the said
name is neither registered nor with a juridical personality. Since A,
B and C entered into a business transaction with Mr. Y using the
name PEP Boys, Inc., then the latter may sue A, B and C under the
said name. (Refer to Section 15, Rule 3 of ROC and Section 21 of
the Corporation Code)
53. May A, B and C sue under a suit captioned: Pep Boys, Inc. vs Mr. Y? Explain briefly.
A, B and C cannot sue under a suit captioned: “Pep Boys, Inc. vs Mr.
o
Y”. An entity which is neither registered nor with a juridical
personality can only be a party defendant and not a party plaintiff.
In other words, such entity can be sued under the common name
by which it is known but it cannot sue under such name. In this
case, Pep Boys Inc. can be sued under the said name but it cannot
sue using the said name. It is only given under the rules the
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capacity to be sued but not the capacity to sue. (Refer to Section

54. Western Bank sued Mr. D for an alleged unpaid loan by the latter. If Mr. D fails to file an
answer, what remedy does Mr. Bank have?
 If Mr. D fails to file an answer within the reglementary period, the

remedy of Mr. Bank is to file a motion to declare Mr. D in default.
55. In question no. 54, may the court motu proprio declare the defendant in default for
failure to file an answer?
 The court may not motu proprio declare the defendant in default for
failure to file an answer. There must always be a motion filed to
declare the defending party in default because the court cannot
motu proprio declare the defending in default. (Refer to Section 3,
Rule 9 of the ROC)
56. In question no. 54, if Mr. D files an answer but admits all the material allegations of the
complaint, what is the remedy of the plaintiff bank? Why?
 The remedy of the plaintiff bank is to file a motion for judgment on

the pleadings. A judgment on the pleading is proper when the
answer fails to tender an issue or admits the material allegations of
the adverse party’s pleading. In this case, the defendant Mr. D filed
an answer but he admits all the material allegations of the
complaint. Hence, the remedy of the plaintiff bank is to file a
motion for judgment on the pleadings. (Refer to Section 1, Rule 34
of the ROC)
57. In question no. 54, what remedy does Mr. D have upon learning of his being declared in
default? (b) What remedy does he have upon learning of the default judgment before it
becomes executory? (c) How about after it has become executory?
 If Mr. D learned that he was declared in default, he may file a

motion under oath to set aside the order of default. The motion
shall allege and show that his failure to answer was due to fraud,
accident, mistake or excusable negligence. (Refer to Section 3-b,
Rule 9 of the ROC)
 If Mr. D learned of the default judgment before it becomes

executory, then he may file a motion for new trial. (Refer to Section
 If Mr. D learned of the default judgment after it becomes

executory, then he may file a petition for relief from judgment.
58. Mr. PP, a passenger in Bus No. 1 of Squirrel Lines Bus Co. was injured when the bus fell
into an embankment due to the negligence of the bus driver. What procedural step
should be undertaken by Mr. PP if he wants to anchor his claim on a contractual or quasi-
delict theory under one complaint? Why?
 If Mr. PP wants to anchor his claim on a contractual or quasi-delict

theory under one complaint, then Mr. PP may sue Squirrel Lines Bus
Co. under an alternative causes of action. The Rules of Court allows
a party to set forth two or more statements of a claim or defense
alternatively or hypothetically, in one cause of action. In this case,
Mr. PP wants to sue the carrier either under culpa contractual or

Page16
culpa aquiliana. Hence, Mr. PP may file his complaint under

alternative causes of action. (Refer to Section 2, Rule 8 of the ROC)
59. XX, YY and ZZ borrowed P100,000 each from CC on different occasions and for different
reasons. Incidentally, the debts have the same due dates. Because of the failure of the
debtors to pay, the creditor filed a suit against all of them in one complaint. XX filed a
motion to dismiss the suit because of improper joinder. Is there an improper joinder?
Why?
 There is an improper joinder of parties.For the joinder of parties to
be proper, it is necessary that: (a) a right to relief in respect to or
arising out of the same transaction or series of transactions; and
(b) a common question of law or fact. In this case, the debts of XX,
YY and ZZ arose out of different transactions because the
borrowing was made on different occasions and for different
reasons.(Refer to Section 6, Rule 3 of the ROC)
60. Should the motion be granted? Why?
 The motion to dismiss should not be granted. An improper joinder

of parties is not a ground for a motion to dismiss. When the rule
speaks of improper joinder, it could either be misjoinder or non-
joinder of parties. In this case, there is a misjoinder of parties
because XX, YY and ZZ should not be joined under a single
complaint. If a party is misjoined, he may be severed in the action
and proceeded with separately upon order of the court. So, it is not
the misjoinder of parties itself which could cause the dismissal of
the action but the failure to comply with the order of the court to
drop the party misjoined. (Refer to Section 11, Rule 3 of ROC and
p.310 of Civil Procedure by Dean Riano)
61. Which of the following actions should be filed in the residence of the plaintiff or that of
the defendant? Why? (a) an action to annul a sale of real property. (b) an action to
remove a cloud from a title. (c) complaint for partition of real property. (d) an action to
recover possession of real property.
 None of the following actions can be filed either in the residence of

the plaintiff or that of the defendant. Only personal actions can be
filed either at the residence of the plaintiff or that of the defendant.
If the action has something to do with title or possession of real
property, then it is a real action. The venue of real actions is not the
residence of the parties but the place where the property is
situated.In this case, all the following actions are real actions since
it has something to do with possession or title to real property. .
(Refer to Section 1 and 2, Rule 4 of the ROC)
62. Can the following actions be filed in the RTC? Why? (a) an action for specific
performance or damages of P150,000.00. (b) an action to recover real property from a
defendant who occupied the same by stealth and strategy. (c) an action to recover
support in arrears worth P150,000. (d) an action to recover a motorcycle worth
P150,000.
 An action for specific performance or damages of P150,000.00

cannot be filed with the RTC because the action is captioned in the
alternative. The amount of damages shall be considered in
determining the jurisdiction of the court. Since the amount of
P150,000.00 is below the jurisdictional amount of the RTC, the
action cannot be filed in the said court. (Refer to Supreme Court
Administrative Circular No. 09-04, June 14, 1994 and BP 129 as
amended by RA 7691)

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 An action to recover real property from a defendant who occupied

the same by stealth and strategy cannot be filed with the RTC
because an action for ejectment should be filed with the MTC,
irrespective of the amount of damages to be recovered. (Refer to
Part I, Section 1 of the Revised Rules on Summary Procedure)
 An action to recover support in arrears worth P150,000 cannot be

filed with the RTC because it is below the jurisdictional amount of
P200,000.00 or P400,000.00, as the case may be. (Refer to BP 129
as amended by RA 7691)
 An action to recover a motorcycle worth P150,000 cannot be filed

with the RTC because it is below the jurisdictional amount of
P200,000.00 or P400,000.00, as the case may be. (Refer to BP 129
as amended by RA 7691)
63. Mr. DD, a defendant in forcible entry case, failed to file an answer to the complaint
within the reglementary period. The plaintiff then filed a motion to declare the defendant
in default. Despite proof of summons and proof of the defendant’s failure to answer, the
motion to dismiss was denied. A subsequent motion for reconsideration was likewise
denied. May certiorari lie on the ground of grave abuse of discretion? Why?
 The petition for certiorari will not lie on the ground of grave abuse
of discretion. An interlocutory order may only be questioned by way
of a special civil action for certiorari. But when it comes to cases
covered by summary procedure, a petition for certiorari against any
interlocutory order issued by the court is a prohibited pleading. In
this case, an order denying a motion for reconsideration is an
interlocutory order which was issued in a forcible entry case. A
forcible entry is within the coverage of the rules on summary
procedure. Hence, the petition for certiorari will not lie. (Refer to
Part IV, Section 19-g of the Revised Rules on Summary Procedure)
64. Mr. XX owns a parcel of land which he mortgaged to Mr. OO. Mr. XX then sold the land
to Mr. BB during the existence of the mortgage. Because Mr. XX failed to pay his debt,
Mr. OO filed an action to foreclose the mortgage impleading both Mr. XX and Mr. BB. The
latter filed a motion to sever him from the complaint as defendant alleging that he was
not responsible for the debt. How would you resolve the motion?
 The motion of Mr. BB to sever him from the complaint as defendant

should be denied. When a party instituted an action, he should
always implead indispensable parties because if they are not
impleaded, no final determination can be had of an action. To be an
indispensable party also means that one is also a real party in
interest. In this case, the plaintiff – Mr. OO is correct in impleading
not only Mr. XX but also Mr. BB. Even if Mr. BB is not a party to the
loan agreement between Mr. XX and Mr. OO, he is still an
indispensable party because he is now the owner of the parcel of
land subject to the mortgage. If he is not impleaded by Mr. OO,
then no final determination can be had of an action for foreclosure.
(Refer to Section 7, Rule 3 of the ROC and Victorias Milling Co. Inc.
vs NLRC, 262 SCRA 623)
65. Mr. Oleg, a Russian employee in the Russian Consulate in Manila acquired expensive
vintage cars during his tour of duty in the Philippines but at the same time incurred
substantial debts in favor of his Filipino friend. He left the country without paying his
debts and left his cars in a rented garage. In an action for a sum of money, how may the
court acquire jurisdiction over his person? Why?
 In an action for sum of money, the court may acquire jurisdiction
over the person of Mr. Oleg by the service in person of summons
upon him. Even without service of summons, the court may still
Page18
acquire jurisdiction over the person of Mr. Oleg by his voluntary

appearance in the action which is also equivalent to service of
summons. The service of summons is required because an action
for a sum of money is an action in personam. An action in personam
is a suit which is directed against a particular defendant against
whom a specific judgment is sought. In such case, jurisdiction over
the person of the defendant is always required and it can only be
acquired either by service of summons or by the voluntary
appearance of defendant in the action. (Refer to Section 6 and 20,
Rule 14 of the ROC)
66. In question no.65, what remedial step should be undertaken by you as counsel for the
plaintiff to collect the debt?
 If I were the counsel for the plaintiff, I would cause the attachment
of the properties left by Mr. Oleg in the Philippines. When a
defendant who is a non-resident alien left the Philippines and the
action is in personam, there is actually no way of acquiring
jurisdiction over his person. The only recourse of the plaintiff is to
go after the properties left by the defendant within the Philippines
and have the said properties attached in order to acquire
jurisdiction over the res, i.e., the properties. Because of the
attachment, the action ceased to be purely in personam since it had
acquired the status of an action quasi in rem. It is a basic rule that
in an action in quasi in rem, jurisdiction over the person of the
defendant is not essential. In this case, the plaintiff may attach the
vintage cars left within the Philippines by the non-resident
defendant – Mr. Oleg. Once it is attached, the court will already
acquire jurisdiction over the res and the said properties may now
be used to satisfy the debt of Mr. Oleg to the plaintiff. (Refer to
Villareal vs CA, 295 SCRA 511 and p. 98 of Civil Procedure by Dean
Riano)
67. X filed a petition for naturalization before the RTC of Manila which granted the petition.
On appeal, the government attached to the appeal a document not offered in evidence in
the lower court. Said evidence became the basis for the appellate court in finding that X
is unfit for naturalization and in reversing the decision of the lower court. In a petition for
review on certiorari before the Supreme Court, X argued that the appellate court should
not have considered the evidence, the same not having been formally offered. Decide.
 The petition for review on certiorari before the Supreme Court

should be denied. It is a basic rule that the Rules of Court shall not
apply to naturalization proceedings, except by analogy or in a
suppletory character. In this case, it is being argued by the
petitioner that the evidence attached by the government on appeal
were not even formally offered in evidence and it should not
therefore be considered by the appellate court. However, the rule
with respect to the formal offer of evidence are part of the rules of
court in evidence which is inapplicable to a naturalization
proceedings. The plaintiff therefore cannot insist on the application
of the rules on the formal offer of evidence because naturalization
proceedings are not governed by the Rules of Court. (Refer to
Section 4, Rule 1 of the ROC and Ong Chia vs Republic, 328 SCRA
749)
68. (a) Under the Rules of Court, an appeal from the decision of the Regional Trial Court
shall be taken by filling a notice of appeal within fifteen (15) days from the notice of
judgment. If the Supreme Court allows an appeal filed 5 days beyond the reglementary
period, what principle of law or rule may be invoked to justify the action of the court? (b)
What reason may be invoked for the rule that jurisdiction cannot be subject to stipulation
by the parties?
Page19
 If the Supreme Court allows an appeal filed five (5) days beyond
the reglementary period, then the principle of law or rule which
may be invoked to justify the action of the court is the liberal
construction as applied to appeals. Being the author of the Rules of
Court, the Supreme Court is given the power to relax its own rules
if it will serve the interest of justice and equity. (Refer to Section 6,
Rule 1 of the ROC)
 Jurisdiction cannot be subject to stipulation of the parties because

it is conferred by law. It touches more on the substance of the case
rather than on the convenience of the parties. (Refer to Rudolf
Lietz Holdings, Inc. vs Registry of Deeds of Paranaque City,
November 15, 2000 and Dacoycoy vs IAC, 195 SCRA 641)
69. Mr. X, a resident of Quezon City filed an action for unlawful detainer against Mr. Y, a
resident of Manila because of the latter’s violation of a contract of lease of a building
located in Makati City. The action was filed in Pasay City because of a stipulation in the
lease which provides: “Any action arising from this contract of lease shall be filed in
Pasay City.” If the action is filed in Manila, may the defendant, Mr. Y file a motion to
dismiss based on improper venue?
 If the action is filed in Manila, the defendant – Mr. Y may file a

motion to dismiss based on improper venue. Real actions, which are
actions affecting title to or possession of property, or interest
therein, shall be commenced and tried in the proper court which
has jurisdiction over the area wherein the real property involved, or
a portion thereof is situated. In this case, an action for unlawful
detainer is a real action. The venue of the action could either be in
the court of the place where the property is located or in the venue
stipulated in the contract. Manila is an improper venue for the
action because it is neither the place where the building is located
nor the venue stipulated for filing the action. (Refer to Section 1
and 4, Rule 4 of the ROC)
70. May the action be filed in Makati City?

 The action may be filed in Makati City. If the stipulation on venue is
not restrictive as to its terms, the provisions of the Rules of Court
on venue may still be applied. In this case, an action for unlawful
detainer, which is a real action, may be filed in Makati City, the
place where the building is situated and the stipulation as to venue
is not restrictive. (Refer to Section 1 and 4, Rule 4 of the ROC)
71. (a) In the immediately preceding number, assuming that the action was filed in the MTC
of Quezon City, may the court motu proprio dismiss the complaint based on improper
venue? Why? (b) May the court motu proprio dismiss the complaint based on lack of
jurisdiction if the action had been filed in the MTC of Caloocan City? Why?
 The court may motu proprio dismiss the complaint based on

improper venue. When the action is covered by the Rules of
Summary Procedure, an improper venue may be subject to a motu
proprio dismissal by the court. In this case, an action for unlawful
detainer is governed by the Rules of Summary Procedure. So if the
action was filed in Quezon City instead of Makati City or Pasay City,
there will be an improper venue. Hence, the court may motu
proprio dismiss the complaint based on improper venue. (Refer to
Part II, Section 4 of the Revised Rules of Summary Procedure)

If the action had been filed in Caloocan City, the court may not
motu proprio dismiss the case based on lack of jurisdiction. When it
comes to civil cases, the venue for filing the action has nothing to
Page20
do with jurisdiction. Even if the action was filed in the wrong

venue, the court still has jurisdiction over the action but it is the
proper venue to file the action. In this case, the filing of the action
in Caloocan City is merely an improper venue and has nothing to do
with jurisdiction. (Refer to Section 1, Rule 4 of the ROC)
72. (a) Using the facts in No. 69, if the defendant Mr. Y fails to file an answer, may the court
on its own motion declare the defendant in default? Why? (b) In the same number, if the
complaint fails to state a cause of action, what is the remedy of the defendant?
 The court cannot, on its own motion, declare the defendant in

default. When it comes to the declaration of default, there
should always be a motion filed by the plaintiff. Hence, the
court cannot, on its own motion, declare the defendant in
default. (Refer to Section 3, Rule 9 of the ROC)
 If the complaint fails to state a cause of action, the defendant

has the remedy of filing a motion to dismiss the complaint.
(Refer to Section 1-g, Rule 16 of the ROC)
73. (a) An action for unlawful detainer was filed against Mr. Y by Mr. X. the defendant
alleges the defense of tenancy and moves to dismiss the complaint for lack of
jurisdiction. May the action be dismissed on the basis of the motion? Explain. (b) X filed
an action for a sum of money against Y under a promissory note signed by Y and Z
where they bound themselves to pay jointly. Should Z be joined as an indispensable
party? Why?
 The action may be dismissed on the basis of the said motion. When
it comes to cases covered by Summary Procedure, a motion to
dismiss is a prohibited pleading except on the ground of lack of
jurisdiction over the subject matter of the complaint and failure to
comply with barangay conciliation proceedings. In this case, an
action for unlawful detainer is governed by the Rules of Summary
Procedure. The filing of a motion to dismiss based on lack of
jurisdiction is allowed under the said rules. Hence, the action may
be dismissed on the basis of the said motion. (Refer to Part IV,
Section 19 of the Revised Rules of Summary Procedure)
 Z should not be joined as an indispensable party. An indispensable

party is a party in interest without whom no final determination
can be had of an action. When it comes to a joint obligation, each of
the debtor is an indispensable party only with respect to his share
because the obligations of the debtors in this kind of obligation are
separate and distinct from one another. In this case, Y and Z are
joint debtors of X. So when X sued Y, the latter is an indispensable
party with respect to his share and Z should not be impleaded as an
indispensable party because even without him joined there could
be a final determination of the case. The obligation of Y is separate
and distinct from the obligation of Z. Hence, Z should not be joined
as an indispensable party. (Refer to Section 7, Rule 3 of the ROC
and Article 1208 of the CC)
74. Atty. Santos, counsel for the defendant, Mr. Donato seeks to have the trial postponed on
the ground of illness of his client. He filed a motion for postponement attaching to it a
sworn certification that the illness of the defendant is such as to render his non-
attendance excusable. How may the plaintiff Mr. Patricio prevent the postponement?
 If the motion for postponement is on the ground of the illness of

the defendant, the plaintiff – Mr. Patricicio may prevent the
postponement by proving before the court that the presence of the
defendant -- Mr. Donato at the trial is not indispensable. The
Page21
motion for postponement is not a matter of right. It is addressed to

the sound discretion of the court. In this case, the court will
exercise its discretion on whether or not the attendance of Mr.
Donato at the trial is indispensable. (Refer to Section 4, Rule 30 of
the ROC and Garces vs Valenzuela, 170 SCRA 745)
75. Assuming that the ground relied upon by Atty. Santos is absence of evidence and the
motion is supported by an affidavit showing that the evidence is material, relevant and
that due diligence has been used to procure it. How may the plaintiff prevent the
postponement?
 If the ground relied upon by Atty. Santos is absence of evidence

and the motion is supported documents required by the rules, then
the plaintiff may still prevent the postponement by admitting the
facts to be given in evidence. In such case, the trial shall not be
postponed even if he objects or reserves the right to object to their
admissibility. (Refer to Section 3, Rule 30 of the ROC)
76. In no. 74, the plaintiff admitted the facts contained in the alleged absent evidence. May
he later on still object to the evidence?
 If the plaintiff – Mr. Patricio admitted the facts contained in the

alleged absent evidence, he may still object to the evidence
provided that he reserves the right to object to their admissibility.
77. During the pendency of the proceedings in a civil case between Mr. Protacio as plaintiff
and Mr. Donato as defendant, the parties, instead of presenting evidence, submitted a
written stipulation of facts to the court in order to submit the case for judgment on the
facts agreed upon. The court rejected the stipulation because said stipulation of facts
should have been submitted during the pre-trial conference and not during the trial.
Decide.
 The stipulation of facts submitted for judgment should not be

rejected on the ground that it is not submitted in the pre-trial
conference. Even during the trial, the parties may still enter into an
agreed statement of facts in writing and submit the case for
judgment on the facts agreed upon, without the introduction of
evidence. In this case, the parties entered into an agreed statement
of facts instead of presenting evidence during the trial. The said
agreed statement of facts may be submitted to the court not only
during pre-trial but also during the trial. (Refer to Section 6, Rule
30 of the ROC)
78. In a case where the defendant was declared in default, the judge of the court where the
case is pending delegated the reception of the evidence of the plaintiff to the clerk of
court. Is the delegation proper?
o The delegation of the reception of evidence of the plaintiff to the

clerk of court is proper. It is a general rule that the reception of
evidence shall personally be made by the judge of the court where
the case is pending. But the rule admits of exceptions whereby
reception of evidence may be delegated to the clerk of court and
these are: (a) in default or ex parte hearings; and (b) in any case
where the parties agree in writing. In this case, there was a
declaration of default on the part of the defendant and the plaintiff
may now be allowed to present his evidence ex parte. (Refer to
79. In what instances may the reception of evidence be delegated to the clerk of court?

Page22
 The instances whereby the reception of evidence may be delegated

to the clerk of court are as follows:
a. In default or ex parte hearings; and
b. In any case where the parties agree in writing. (same rule)
80. How should the clerk of court rule on objections to questions or to the admission of
exhibits during the reception of evidence?
 The clerk of court shall have no power to rule on objections to any

question or to the admission of exhibits. The objections shall be
resolved by the court upon submission of the report of the clerk of
court and the transcripts within ten (10) days from termination of
the hearing. (Refer to Section 9, Rule 30 of the ROC)
81. (a) When two actions involve question of law or fact pending before the same court,
what may be done on the actions? (b) In what instances is a trial by commissioner
allowed? (c) The defendant failed to appear at the time and place appointed for a trial by
the commissioner. What may the commissioner do under the circumstances? (d) A
witness of the plaintiff who was subpoenaed by the commissioner refused to obey the
subpoena. May the commissioner hold him in contempt?
 When the two actions involve a common question of law or fact pending
before the same court, it may order a joint hearing or trial of any or all the
matters in issue in the actions. It may also order all the actions consolidated
and it may make such orders concerning proceedings therein as may tend to
avoid unnecessary costs or delay. On the other hand, if there is no common
question of law or fact, the court may order a separate trial. (Section 1 and
 A trial by the commissioner may be allowed under the following

instances:
a. When the trial of an issue of fact requires the examination of a
long account on either side;
b. When the taking of an account is necessary for the information
of the court before judgment, or for the carrying of a judgment
or order into effect; and
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. (Refer to Section 2, Rule 32 of
the ROC)
 If the defendant failed to appear at the time and place appointed for a
trial by the commissioner, the commissioner may proceed ex parte or,
in his discretion, adjourn the proceedings to a future day, giving notice
to the absent party or his counsel of the adjournment. (Refer to
 The commissioner cannot hold him in contempt because the

commissioner has no power to do so. However, the refusal of the
witness to obey a subpoena issued by the commissioner shall be
deemed a contempt of the court which appointed the commissioner.
82. Plaintiff filed an action for annulment of the sale of a car alleging that the defendant
misrepresented the qualities of the car and that because of such misrepresentation he
was induced to buy the same. During the pendency of the annulment case, plaintiff filed
an action for damages against the same defendant invoking the provisions of Art. 1170
of the Civil Code of the Philippines authorizing recovery of damages on the ground of
fraud. May the second suit be dismissed? If so on what ground?
Page23
o The second suit may be dismissed on the ground that there is

splitting of a single cause of action. There is a splitting of a cause of
action when two or more suits have been instituted on the basis of
the same cause of action. The remedy of the adverse party in such
case is to file a motion to dismiss either on the ground of res
judicata or on the ground of litis pendentia. In this case, there is a
splitting of a cause of action because the action for annulment and
the action for damages arises from a single cause of action which is
misrepresentation on the part of the defendant. Since the action for
damages was filed during the pendency of the action for
annulment, then the defendant may file a motion to dismiss the
second suit for damages on the ground of litis pendentia. (Refer to
Section 3 and 4, Rule 2 of the ROC)
83. Assuming that the annulment case had already been decided in favor of the plaintiff
when the action for damages was filed, may the second suit be dismissed? If so, on what
ground?
 The second suit may be dismissed on the ground of res judicata.

The case also involves splitting of cause of action. There is a
splitting of a cause of action when two or more suits have been
instituted on the basis of the same cause of action. The remedy of
the adverse party in such case is to file a motion to dismiss either
on the ground of res judicata or on the ground of litis pendentia. In
this case, there is a splitting of a cause of action because the action
for annulment and the action for damages arises from a single
cause of action which is misrepresentation on the part of the
defendant. Since the action for damages was filed when the action
for annulment had already been decided in favor of the plaintiff,
then the defendant may file a motion to dismiss the second suit for
damages on the ground of res judicata. (Refer to Section 3 and 4,
Rule 2 of the ROC)
84. Defendant, while driving his car in a negligent manner, damaged the car of the plaintiff
and at the same time caused injuries to the latter. Plaintiff filed an action to recover
damages to his car. During the pendency of the case, plaintiff sued the same defendant
for the injuries he sustained in the same mishap. May the second action be dismissed?
Why?
 The second suit may be dismissed on the ground of litis pendentia.
The case also involves splitting of cause of action. There is a
splitting of a cause of action when two or more suits have been
instituted on the basis of the same cause of action. The remedy of
the adverse party in such case is to file a motion to dismiss either
on the ground of res judicata or on the ground of litis pendentia. In
this case, there is a splitting of a cause of action because the action
by the defendant to recover damages to his car and the action to
recover the injuries he has sustained from the accident arises from
a single cause of action which is negligence of the defendant in
driving his car. Since the action to recover injuries sustained from
the accident was filed during the pendency of the action to recover
damages to the car, then the defendant may file a motion to
dismiss the second suit on the ground of litis pendentia. (Refer to
Section 3 and 4, Rule 2 of the ROC)
85. Assuming that the first action had already been decided upon when the second action
was filed, may the latter action be dismissed? If so, on what ground?
o The second suit may also be dismissed on the ground of res

judicata since this is a case involving splitting of cause of action.

Page24
There is a splitting of a cause of action when two or more suits

have been instituted on the basis of the same cause of action. The
remedy of the adverse party in such case is to file a motion to
dismiss either on the ground of res judicata or on the ground of litis
pendentia. In this case, there is a splitting of a cause of action
because the action by the defendant to recover damages to his car
and the action to recover the injuries he has sustained from the
accident arises from a single cause of action which is negligence of
the defendant in driving his car. Since the action to recover injuries
sustained from the accident was filed when the action to recover
damages to the car had already been decided upon, then the
defendant may file a motion to dismiss the second suit on the
ground of res judicata. (Refer to Section 3 and 4, Rule 2 of the
ROC)
86. Debtor borrowed P5 million from Creditor. The debt is secured by a real estate mortgage
constituted on the land owned by Debtor. Debtor failed to pay on the due date. May the
plaintiff file one action for collection of debt and another action for foreclosure of
mortgage? Why?
 The plaintiff – creditor cannot file one action for collection of debt
and another action for foreclosure of mortgage because he will be
splitting his cause of action against the defendant – debtor. There
is splitting of a cause of action when two or more suits have been
instituted on the basis of the same cause of action. In this case, the
action for collection and the action for foreclosure of mortgage
arises from a single cause of action which is the non-payment of
the debt by the debtor. (Refer to Section 3 and 4, Rule 2 of the
ROC)
 Basic also is the rule that the remedy of a creditor in case of non-
payment of debt and such debt is secured is alternative in nature.
Such that, the creditor may either file a collection case or to
foreclose the mortgage.
87. X and Y entered into a contract of lease of a building with X as lessor and Y as lessee.
Under the contract, Y had the following obligations: (a) to pay a monthly rental of
P10,000 per month; (b) to spend for the landscaping of the premises; and (c) to be
responsible for repairing the cracked walls and other defects. Y did not pay the rentals,
did not landscape the premises and did not make repairs required by the contract. After
filling a suit for unlawful detainer, may X also a file a separate action for recovery of
rentals and another action for breach of contract?
 X cannot file a separate action for recovery of rentals and

another action for breach of contract because he will be
splitting his cause of action against the defendant – debtor.
There is splitting of a cause of action when two or more suits
have been instituted on the basis of the same cause of action.
In this case, the action for recovery of rentals and the action for
breach of contract arises from a single cause of action which is
the breach of the contract of lease by the lesse. Hence, X cannot
file one action for recovery of rentals and another action for
breach of contract. (Refer to Section 3 and 4, Rule 2 of the
ROC)
88. X is the lessor and Y is the tenant of a house located in an upscale neighborhood. The
contract stipulated for the payment of rentals on a monthly basis. Y never missed paying
his rentals for a period of two years. However, he missed paying the rentals for January.
An action to recover the rentals for January was filed against Y by X and judgment was
rendered against Y. Y duly paid but since the action was only for recovery of the rentals

Page25
due, Y remained in the premises. He again failed to pay in June of the same year. May
another action be filed to recover rentals for the month of June?
 Another action may be filed to recover rentals for the month of

June. If a contract of lease provides for the payment of rentals
in separate installments, then each installment shall constitute
an independent cause of action. In this case, the non-payment
of the rentals in the month of June is an independent cause of
action which can be the subject of another action for the
recovery of rentals. (Refer to Rubio de Larena vs Villanueva, 53
Phil 923)
89. Assume that Y failed to pay the rentals for January, February, March and April, may X file
separate actions for each of the monthly rentals due? Why?
 X may not file separate actions for each of the monthly rental
due. If at the time the complaint is filed, there are several
installments already due, then all of them shall constitute a
single cause of action and should be included in a single
complaint. In this case, the non-payment of the rentals in
January, February, March and April should be included in a
single complaint since they constitute a single cause of action.
(Refer to Rubio de Larena vs Villanueva, 53 Phil 923)
90. Y failed to pay the rentals for January and X filed an action for the recovery of rentals
corresponding to that same month. During the pendency of the action, Y failed to pay
the rentals for February, is the remedy of X to file a separate action for the recovery of
February rentals?
 X shall not to file a separate action for the recovery of February

rentals during the pendency of the action for the recovery of
January rentals because there will be splitting of a single cause
of action. If the rentals for February became due during the
pendency of the action to recover rentals in January, then such
rentals for February should be joined with the action to recover
rentals in January. These two (2) monthly rentals constitute a
single cause of action and should therefore be joined under a
single complaint. In such case, the remedy of X is merely to
amend his complaint during the pendency of the action in order
to avoid splitting of cause of action. (Refer to Rubio de Larena
vs Villanueva, 53 Phil 923)
91. X promised to deliver to Y 10 drums of high octane fuel each month for a period of 12
months. Before the due date of the first delivery, X indicated his decision not to perform
his obligation under the entire contract. If Y sues, how many causes of action does he
have considering the rule that failure to comply with each installment is a separate
breach and is a separate cause of action?
 Y has only one cause of action against X. When the obligations

imposed by the contract is divisible in nature, the failure to
fulfill each part is an independent cause of action. But if the
contract was entirely breached, then there can only be one
cause of action, and the plaintiff must recover all his damages.
In this case, the obligation of X to deliver 10 drums of high
octane fuel for each month is divisible in nature and this shall
be done for a period of twelve (12) months. But before the date
of first delivery, X breached the entire contract because he
decided not to perform his obligation under the entire contract.
Page26
The failure of X to make his delivery for each of the twelve (12)
months shall constitute one cause of action. Hence, Y has only
one cause of action against X. (Refer to Blossoms & Co. vs.
Manila Gas Corporation, 55 Phil 226)
92. Y is a lessee of a farmland owned by X. Because of breaches of the lease contract, X filed
an action to recover possession of the property. He subsequently filed an action for
damages and recovery of his share in the produce of the land which Y failed to give X in
accordance with the contract. Is there a case of splitting a single cause of action?
 There is a splitting of a single cause of action. When two or
more suits have been instituted on the basis of the same cause
of action, splitting of a cause of action will result. In this case,
the action for recovery of possession of property and the action
for damages and recovery of the share in the produce of the
land arises from a single cause of action which is the breach of
the contract of lease by the lessee. Hence, there is a splitting of
a single cause of action. (Refer to Section 3 and 4, Rule 2 of the
ROC)
93. X filed an action for forcible entry in the MTC of Batangas City against Y involving a
parcel of land located in Cavite. X resides in Batangas City while Y resides in Laguna. The
MTC of Batangas City dismissed the action motu propio for lack of jurisdiction. Is motu
propio dismissal proper? Explain.
 The motu propio dismissal by the MTC of Batangas City for lack
of jurisdiction is not proper. When it comes to real action like
forcible entry, the venue of action should be at the court of the
place where the property is located. As far as civil cases are
concerned, the venue of action has nothing to do with
jurisdiction. In such case, the court still retains its jurisdiction
over the case but it is not the proper court of the place where
the action should be filed. In this case, the filing of forcible
entry in Batangas City, instead of Cavite where the property is
located, should be dismissed on the ground of improper venue
and not lack of jurisdiction. (Refer to Section 1, Rule 4 and
Section 1-c, Rule 16 of the ROC)
94. The contract between X, a resident of Manila executed with Y, a resident of Quezon City
provides that any action arising from the contract shall be filed in Pasay City. Because of
an alleged breach of the contract by Y, X filed an action in Manila. Would a motion to
dismiss on the ground of improper venue be sustained? Explain.
 The motion to dismiss on the ground of improper venue should

not be sustained. A mere stipulation on venue of an action is not
enough to preclude parties from bringing a case to other
venues. The parties must be able to show that such stipulation
is exclusive. In the absence, of qualifying or restrictive words,
the stipulation should be considered merely as an agreement on
and, not a limitation to a particular place. In this case, the
agreement of the parties that the venue of their action shall be
filed in Pasay City is not restrictive. Therefore, the rule on venue
as provided under the rules of court is therefore applicable and
the stipulation of the parties is merely an additional venue
where the parties can institute their action. (Refer to Mangila vs
Ca, August 12, 2002 and Section 1, 2 & 4 of Rule 4 of the ROC)
95. (a) Under what circumstances would a motu propio dismissal based on an improper
venue be proper? (b) What defenses are not waived even if not raised in a motion to
dismiss or an answer?

Page27
 The motu propio dimissal based on an improper venue is proper

in cases covered by Summary Procedure such as forcible entry
and unlawful detainer. (Refer to Section 4, Rule 2 of Revised
Rule on Summary Procedure)
 The defenses which are not waived even if not raised in a

motion to dismiss or an answer are as follows:
a. Lack of jurisdiction over the subject matter;
b. Pendency of another action between the same parties for
the same cause;
c. Bar by prior judgment; and
d. Bar by statute of limitations. (Refer to Section 1, Rule 9 of
ROC)
96. The NLRC decided on a case on the basis of the affidavits of the workers who filed a
claim for illegal dismissal. On appeal, the defendant employer argued that the NLRC
decided the case in violation of the Rules of Court prohibiting hearsay evidence. The
appellant workers contended that no rules have been violated by the NLRC. Decide.
 The contention of the appellant workers that no rules have been

violated by the NLRC should be upheld. When it comes to an
administrative proceedings such as a labor case before the NLRC,
the rules of court is not applicable. Administrative proceedings are
not strictly bound by the formal rules of evidence. In other words,
the rules of court is inapplicable to labor cases, except by analogy
or in a suppletory character and whenever practicable and
convenient. In this case, the Rules of Court prohibiting hearsay
evidence is not applicable to the labor case before the NLRC. (Refer
to Section 4, Rule 1 of the ROC and Ang vs Asis, January 15, 2002)
97. An unlawful detainer case involving a land located in Baguio City was filed by the
plaintiff, a resident of Manila, in the MTC of Malolos, resident of the defendant. May the
complaint be dismissed for lack of jurisdiction? Explain briefly.
 The complaint may not be dismissed for lack of jurisdiction. When it

comes to civil cases like an unlawful detainer, venue has nothing to
do with jurisdiction. But improper venue can be the subject of a
motu propio dismissal by the court in cases covered by the rule of
summary procedure. Since an unlawful detainer case is covered by
summary of summary procedure, it may be dismissed by the court
motu propio on the ground of improper venue and not on the
ground of lack of jurisdiction. (Refer to Section 4, Rule 2 of the
Revised Rules on Summary Procedure)
98. A judgment adverse to the plaintiff contains misappreciation of the facts and the
evidence. If you were the counsel for the plaintiff, would you avail of certiorari as a
remedy against the judgment? Why?
 If I were the counsel for the plaintiff, I would not avail of certiorari
as a remedy against the judgment. When there is a misappreciation
of the facts and the evidence, the court only commits an error of
judgment. Basic is the rule that an error of judgment is correctible
by an appeal and not by way of a special civil action for certiorari.
(Refer to Toh vs CA, 344 SCRA 831)
99. Mr. Debtor, a resident of California was sued by Mr. Creditor a resident of Manila on the
basis of an unpaid promissory note executed in Manila. At the time of the filling of the
action, Mr. Debtor had left the country without the knowledge of Mr. Creditor. May
jurisdiction over Mr. Debtor be acquired by service in person effected outside the
country?

Page28
 Jurisdiction over Mr. Debtor may not be acquired by service in

person effected outside the country. A service of summons may
only be effected outside the country provided that: (a) the
defendant is a non-resident who is at the same time not found in
the Philippines at the time summons is to be served; and (b) the
nature of the action could either be in rem and quasi in rem. In this
case, an action to collect a sum of money is an action in personam
since it is directed against a particular person, who is Mr. Debtor.
100. In the immediately preceding problem, how about summons by publication?
 Summons by publication cannot also acquire jurisdiction over the

person of a non-resident defendant because an action to collect a
sum of money is an action in personam, not an action in rem or
quasi in rem. (same rule)
101. Assuming that the suit in No. 99 is an action for specific performance, would
your answer be the same?
 If it is an action for specific performance, the answer will be the

same. An action for specific performance is an action in personam
since it is directed against a particular person. In such case, the
service of summons can never by extraterritorial service or by
publication. (same rule)
102. (a) May the defendant be declared in default for failure to appear in a pre-trial
conference? (b) What is the remedy of a defendant correctly declared in default?
 The defendant may not be declared in default for failure to appear

in a pre-trial conference. When the law speaks of declaration of
default, it refers to the failure of the defendant to file his answer
within the period allowed by the rules. It does not refer to the
defendant’s failure to appear at the pre-trial. (Refer to Section 3,
Rule 9 of the ROC)
 The defendant who was correctly declared in default has the

following remedies:
a. If the defendant learns of the declaration of default before

judgment, then he has the remedy of filing a motion under oath
to set aside the declaration of default on the ground of fraud,
accident, mistake or excusable negligence and that he has
meritorious defense. (Refer to Section 3, Rule 9 of the ROC)
b. If judgment has already been rendered but before the same

became final, then the defendant may file a motion for new
trial. (Refer to Section 1, Rule 37 of the ROC)
c. And if judgment has already become final and executory, the

defendant may file an action for petition for relief. (Refer to
Rule 38 of the ROC)
103. Mr. Defendant failed to file his answer to a complaint filed in the RTC of Manila. Upon
discovering such failure, the court on its own motion declared the defendant in default.
Is the court’s declaration correct? Why?

The court’s declaration of default is not correct. If the defending
party fails to answer within the time allowed therefore, the
court shall upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the
Page29
defending party in default. The court has not authority under

the rules to render a declaration of default in its own motion.
But instead, there must always be a motion for the declaration
of default filed by the plaintiff. (Refer to Section 3, Rule 9 of
the ROC)
104. How is an actionable document denied?
 An actionable document is denied by specifically denying the

document under oath, and setting forth what he claims to be
facts. (Refer to Section 8, Rule 8 of the ROC)
105. The defendant failed to file a motion to dismiss although certain grounds for its dismissal
exist like lack of jurisdiction over the subject matter, prescription and failure to state a
cause of action. Said grounds were not also invoked in the answer subsequently filed by
the defendant. During the trial, it became apparent that the action had already
prescribed. A motion to dismiss on the said ground was denied because the defense had
allegedly been waived. Decide.
 The denial of the motion to dismiss is not proper. Under the

omnibus motion rule, defenses and objections not pleaded either in
a motion to dismiss or in the answer are considered waived.
However, when it comes to grounds such as lack of jurisdiction
over the subject matter, litis pendentia, res judicata and
prescription, the court should dismiss the case even if the
defendant fails to file his motion to dismiss or to raise these
grounds by way of an affirmative defense in his answer. In this
case, the failure of the defendant failed to file a motion to dismiss
and to invoke in his answer the grounds such as lack of jurisdiction
over the subject matter, prescription and failure to state a cause of
action can never be waived. The defendant can always file a motion
to dismiss or the court may motu proprio dismiss it. (Refer to
106. A motion to dismiss was filed by the defendant against a complaint filed in the RTC of
Makati. The motion was anchored on the ground that the complaint states no cause of
action. The court deferred the ruling on the motion until such time that evidence is
presented during the trial. Rule on the correctness of the court’s order.
 The court is not correct when it deferred the ruling on the motion to
dismiss until the presentation of evidence during the trial. Under
the new rules, the court no longer has an option to defer its ruling
on the motion to dismiss if the ground alleged therein does not
appear to be indubitable. So after the hearing of the motion to
dismiss, the court should immediately issue its resolution over the
said motion such as: (a) to grant the motion; or (b) to deny the
motion; or (c) to order the amendment of the pleadings. Moreover,
if the ground for a motion to dismiss is that the claim states no
cause of action, then the court shall immediately render its
resolution even without the conduct of a hearing because the
resolution may be made on the basis of the allegations stated in the
complaint. In this case, the defendant filed a motion to dismiss on
the ground that the complaint states no cause of action. Even
without a hearing, the court in such case shall immediately render
its resolution by simply examining the allegations in the complaint
and it cannot defer its ruling of the motion until the presentation
evidence during the trial. (Refer to Section 3, Rule 16 of the ROC
and Philippine Sugar Institute vs CIR, 19 SCRA 47)

Page30
107. A complaint for damages was filed in the RTC of Quezon City by Mr. P against Mr. D. The
latter filed a motion to dismiss for failure of the complaint to state a cause of action. The
court ordered that the ruling on the motion be deferred until the reception of the
plaintiff’s evidence. Is there a reason to move for a reconsideration of the order?
 There is a reason to move for a reconsideration of the order
deferring the ruling on the motion. Under the new rules, the court
no longer has an option to defer its ruling on the motion to dismiss
if the ground alleged therein does not appear to be indubitable. So
after the hearing of the motion to dismiss, the court should
immediately issue its resolution over the said motion such as: (a) to
grant the motion; or (b) to deny the motion; or (c) to order the
amendment of the pleadings. Moreover, if the ground for a motion
to dismiss is that the claim states no cause of action, then the court
shall immediately render its resolution even without the conduct of
a hearing because the resolution may be made on the basis of the
allegations stated in the complaint. In this case, the RTC of Quezon
City is no longer authorized by the rules to defer its resolution on
the motion. The RTC of Quezon City may render its resolution based
on the allegations stated in the complaint because the ground for
filing the motion to dismiss is that the complaint states no cause of
action. (Refer to Section 3, Rule 16 of the ROC and Philippine Sugar
Institute vs CIR, 19 SCRA 47)
108. May a motion to dismiss under Rule 16 lie based on absence of a cause of action?
 A motion to dismiss under Rule 16 may not lie based on the

absence of a cause of action. When a pleading fails to state a cause
of action, this means that there is insufficiency in the allegations of
the same. But when there is absence of a cause of action, this
means that there is insufficiency in the factual basis of the action.
In such case, the motion to dismiss under Rule 16 is applicable only
when the pleading fails to state a cause of action and not when
there is absence of a cause of action. Hence, a motion to dismiss
under Rule 16 may not lie based on the absence of a cause of
action. (Refer to Dabuco vs CA, 322 SCRA 853)
109. Mr. Y, the defendant filed a motion to dismiss the action filed against him in RTC Quezon
City. He invoked the following grounds: lack of jurisdiction over the subject matter,
improper venue and statute of frauds. The motion was however denied. Mr. X then filed
an answer invoking the following affirmative defenses: failure of the complaint to state a
cause of action, prescription and res judicata. The plaintiff moved to strike out the
defenses invoked, alleging that they have been waived because they were not invoked in
a motion to dismiss Decide.
 The motion of the plaintiff to strike out the defenses invoked by the
defendant in his answer should be partly denied. With respect to
the defense that the complaint states no cause of action, it is
already barred by the omnibus motion rule which states that
available defenses which was not invoked in the motion shall be
deemed waived. But with respect to defenses of prescription and
res judicata, it cannot be barred by the omnibus motion rule
because even if it is not raised in the motion the court may motu
proprio dismiss the action based on that ground. (Refer to Section
1, Rule 9 and Section 8, Rule 15 of the ROC)
110. In a complaint for a sum of money filed by Mr. P against Mr. D, the latter filed an answer
specifically denying the note attached to the complaint and its authenticity. During the
trial, Mr. D presented an expert witness to prove that the note was indeed a forgery. An
objection from Mr. P was sustained by the court. Believing that the court gravely abused
Page31
its discretion, Mr. D filed a special civil action for certiorari directed against the order
sustaining the objection. Should you sustain the lower court? Explain your answer.
 The lower court should be sustained when it sustained the

objection from Mr. When an action is founded on an actionable
document, the other party who has no intent of admitting the
genuineness and due execution of the document must be able to
make a specific denial of the said document under oath. The failure
to make a specific denial under oath will result in the admission of
the document’s genuineness and due execution. In this case, the
specific denial by Mr. D of the note is not under oath. It is therefore
correct that Mr. P shall object to the presentation of an expert
witness by Mr. D to prove that the note was a forgery. Mr. D has
impliedly admitted the genuineness and the due execution of the
instrument by his failure to make a specific denial under oath.
111. (a) May an erroneous judgment be deemed valid? Why? (b) Give three distinctions
between jurisdiction and venue? (c) Distinguish between failure to state a cause of action
from lack of a cause of action. (d) What are the types of specific denials?
 An erroneous judgment may be deemed valid provided that it is not

reversed on appeal. When there is an error of judgment, such an
error does not make the courts’s decision void and it may serve
only as a ground for reversal if it is shown that prejudice has been
caused by it. Such an error of judgment may only corrected by
appeal. Hence, an erroneous judgment may be deemed valid.
(Refer to Jaro vs CA, February 19, 2002)
 The three (3) distinctions between venue and jurisdiction are as

follows:
a. Jurisdiction treats of the power of the court to hear and
determine a cause – the right to act in a case. On the other
hand, venue is the locality or the place where the suit may be
instituted and tried. It relates to the place of trial or the
geographical location in which the action should be brought;
b. Jurisdiction is substantive because it is conferred by law, while
venue is procedural rather than substantive; and
c. Jurisdiction cannot be waived, enlarged or diminished by the
stipulation of the parties, while venue may be waived by the
parties and may be stipulated upon. (Refer to pp. 153-154 of
Civil Procedure by Dean Riano)
 The distinction between lack of a cause of action and a failure to state

a cause of action are as follows:
a. Failure to state a cause of action refers to the insufficiency of the
allegations in the pleadings, while lack of cause of action refers to
the insufficiency of the factual basis for the action;
b. Failure to state a cause of action may be raised in a Motion to
Dismiss under Rule 16, while lack of a cause of action may be
raised anytime;
c. The dismissal for failure to state a cause of action can be made at
the earliest stages of the action, while the dismissal for lack of a
cause of action is usually made after questions of fact have been
resolved on the basis of the stipulations, admissions or evidences
presented; and
d. A motion to dismiss based on the failure to state a cause of action
may be resolved on the basis of the allegations of the complaint,
while a motion to dismiss raising an affirmative defense that there
is no cause of action poses a question of fact that should be
Page32
resolved after due hearing. (Refer to Heirs of Nepomucena Paez vs

Torres, 324 SCRA 403)
 The types of specific denial are as follows:

a. Specific absolute denial --- a type of specific denial where the
defendant must specify each material allegation of fact the
truth of which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which he
relies to support his denial;
b. Partial specific denial --- a type of specific denial where the
defendant denial only a part of an averment or an allegation
and specifies so much of it as is true and material and denies
only the remainder; and
c. Denial by disavowal of knowledge --- a type of specific denial
where the defendant states that he is without knowledge or
information sufficient to form a belief as to the truth of a
material averment. (Refer to Spouses Gaza vs Lim, January 16,
2003)
112. Mr. X filed an action based on a note against Mr. Y. A motion to dismiss was filed by Mr.
Y based on the ground that the complaint states no cause of action. During the pendency
of the motion, Mr. X amended his complaint without leave of court. Did Mr. X commit a
procedural flaw? Why?
 Mr. X did not commit a procedural flaw in amending his complaint

without leave of court. Amendment is a matter of right when made
at any time before a responsive pleading is served and it can be
made even without leave of court. If what was served is a motion,
the plaintiff can still amend his complaint as a matter of right
because a motion is not a pleading. In this case, the plaintiff – Mr. X
may still amend his complaint without leave of court because what
was served to him is a motion to dismiss which is not considered as
a responsive pleading.(Refer to Section 1, Rule 10 and Section 1,
Rule 15 of the ROC and Soledad vs Mamangun, 8 SCRA 110)
113. (a) For failure to file an answer, the court motu proprio declared the defendant in
default. Did the court act correctly? (b) May the court render judgment by default
without requiring the plaintiff to present his evidence? Why?
 The court did not act correctly. If the defendant fails to answer the
complaint within the period allowed, then he shall be declared in
default upon the motion filed by the plaintiff because the court
cannot motu proprio declare the defendant in default. (Refer to
 The court may not render judgment by default without requiring

the plaintiff to present his evidence. When a defendant was
declared in default, the rule requires the plaintiff to submit his
evidence. In such case, the court will render judgment on the basis
of the evidence submitted by the plaintiff. Hence, the court may not
render judgment by default without requiring the plaintiff to
present his evidence. (Refer to Section 3, Rule 9 of the ROC)
114. (a) May the court grant a relief not specifically prayed for in the complaint? (b) Should a
counterclaim be answered by the plaintiff? (c) When is a reply mandatory?
 The court may grant a relief not specifically prayed for in the
complaint for as long as the relief is warranted by the allegations of
the complaint and the proof. (Lorbes vs CA, February 15, 2001)

Page33
 We must distinguish. If it is a compulsory counterclaim, the plaintiff

need not file an answer to it. On the other hand, if it is a permissive
counterclaim, the plaintiff has to file an answer to it because
otherwise he may be declared in default as to the counterclaim.
(Refer to pp. 364 of Civil Procedure by Dean Riano)
 By way of exception, a reply is required if the defense in the answer

is based on an actionable document otherwise the genuineness and
due execution of the document will be deemed admitted. (Refer to
115. (a) The plaintiff dismisses his complaint, should the compulsory counterclaim be likewise
dismissed? Why? (b) May summons by publication be allowed in an action in personam?
 If the plaintiff dismisses his complaint, the compulsory

counterclaim set up by the defendant should not be dismissed.
Under the new rules, the dismissal of the complaint at the plaintiff’s
motion does not prejudice the right of the defendant to prosecute
his counterclaim in a separate action, unless the defendant
manifests his preference to have his counterclaim resolved in the
same action within fifteen (15) days from the notice of the motion.

Page34
SECOND PART : PREVIOUS BAR OPS MATERIALS
1997 Rules of Civil Procedure
1. Where and which court can you lawfully file the action for ejectment?
o An action for ejectment may be filed in the municipal trial court of the
municipality or city wherein the real property involved, or a portion
thereof, is situated.(Section 1; Rule 4)
2. What are the requisites for an intervention by a non-party in an action pending in court?
o The requisites for intervention by a non-party in an action pending in court
are as follows:
 Legal interest in the matter in controversy; or
 Legal interest in the success of either of the parties; or
 Legal interest against both; or
 So situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer
thereof;
 Intervention will not unduly delay or prejudice the adjudication of
the rights of original parties; and
 Intervenor’s rights may not be fully protected in a separate
proceeding. (Section 1 of Rule 19; Acenas II vs CA ; 247 SCRA 773)
3. How does unlawful detainer different from forcible entry?

o An unlawful detainer is different from forcible entry in the following instances:
 In unlawful detainer, the possession is inceptively lawful but it
becomes illegal by reason of the termination of his right to the
possession of the property under his contract with the plaintiff,
whereas in forcible entry, possession of the land by the defendant
is unlawful from the beginning as he acquires possession by force,
intimidation, strategy, threat or stealth;
 In unlawful detainer, the demand to vacate is jurisdictional

especially if the ground is non-payment of the rentals, whereas in
forcible entry, no previous demand for the defendant to vacate the
premises is necessary;
 In unlawful detainer, the plaintiff need not have been in prior

physical possession of the property, whereas in forcible entry, the
plaintiff must prove that he was in
prior physical possession of the premises until he was

deprived thereof by the defendant; and
 In unlawful detainer, the one(1) year period to exercise the action

shall be counted from the date of last demand or last letter of
demand, whereas in forcible entry, the one(1) year period to
exercise the action shall be counted from the date of actual entry
on the land.
4. When additional defendant is impleaded in the action, is it necessary that summons be

served upon him?

Page35
o Yes. Summons must be served on an additional defendant impleaded in

the action so that the court can acquire jurisdiction over him, unless he
makes voluntary appearance.
5. Distinguish attachment from garnishment.

o Attachment is a provisional remedy that effects a levy on property of a
party as security for the satisfaction of any judgment that may be
recovered, while garnishment is a levy on debts due the judgment obligor
or defendant and other credits, including bank deposits, royalties and
other personal property not capable of manual delivery under a writ of
execution or writ of attachment.
6. Describe briefly at least five modes of discovery under the Rules of Court.
o The five modes of discovery under the Rules of Court are briefly discussed
as follows:
 Deposition --- 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. (Section 1 of Rule 23);
 Interrogatories to parties ---- Under the same conditions specified

in section 1 of Rule 23, any party shall file and serve upon any
adverse party written interrogatories regarding material and
relevant facts to be answered by the party served .(Section 1 of
Rule 25);
 Admission by adverse party ---- At any time after issues have been
joined, a party may file and serve upon any other party a written
request for the admission by the latter of the genuineness of any
material and relevant
document or of the truth of any material and relevant matter of

fact.(Section 1 of Rule 26);
 Production or inspection of documents or things ---- Upon motion

of any party showing good cause therefore, a court may order any
party to produce and permit the inspection and copying or
photographing of any designated documents, etc. or order any
party to permit entry upon designated land or property for
inspecting, measuring, surveying or photographing the property of
any designated relevant object or operation thereon. (Section 1 of
Rule 27); and
 Physical and mental examination of persons ---- In an action in

which the mental or physical condition of a party is in controversy,
the court in which the action is pending may in its discretion order
him to submit to a physical or mental examination .(Section 1 of
Rule 28)
7. How shall the rules of court be construed?

o The rules of court shall be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every
action and proceeding.(Section 6 of Rule 1)
8. What is replevin?

Page36
o A replevin refers to a provisional remedy for the recovery of possession of

personal property, which may be filed at the commencement of the action
or at any time before answer.(Section 1 of Rule 60)
9. What is the effect of the non-filing of a reply?

o The non-filing of a reply has the effect of making all the new matters
alleged in the answer deemed controverted.(Section 10 of Rule 6)
10. What are the essential requisites of res judicata?

o The essential requisites of res judicata are as follows:
 There must be final judgment;
 The final judgment must be rendered by a court of competent
jurisdiction; and
 There must be between the first and the second action similarity of
parties, subject matter and cause of action.
11. When is extra-territorial service of summons proper?

o An extra-territorial service of summons is proper under the following
instances:
 When the defendant does not reside or is not found in the
Philippines; and
 The action either:
 affects the status of the plaintiff ;
 relates to or the subject of which is property within the
Philippines in which defendant has a lien or interest;
 demands a relief which consists wholly or in part the

defendant from any interest in any property in within the
Philippines; or
 property of defendant has been attached in the Philippines.
12. When are parties considered indispensable?

o Parties shall be considered indispensable if no valid judgment can be had,
unless they are joined. (Section 7 of Rule 3)
13. What are the requisites of a class suit?

o The requisites of a class suit are as follows:
 The subject matter of the controversy is one of common or general
interest to many persons;
 Parties affected are so numerous that it is impracticable to bring
them all as parties; and
 Parties bringing the class suit are sufficiently numerous or
representative of the class and can fully protect the interests of all
concerned.(Section 12 of Rule 3)
14. What is the rule against splitting a cause of action and its effect on the respective rights
of the parties for failure to comply with the same?
o The rule against splitting a cause of action and its effects are that if two or
more suits are instituted on the basis of the same cause of action, the
filing of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others.(Section 4 of Rule 2)
15. Distinguish (a) bar by prior judgment from conclusiveness of judgment; (b) action from
cause of action
o Bar by prior judgment is the doctrine of res judicata, which bars a second
action when there is identity of parties, subject matter and cause of
action. On the other hand, conclusiveness of judgment precludes the
relitigation of a particular issue in another action between the same
parties on a different cause of action.

Page37
o An action is one by which a party sues another for the enforcement or

protection of a right, or the prevention or redress of a wrong. On the other
hand, a cause of action is the act or omission by which a party violates a
right of another.(Section 3(a) of Rule 1 and Section 1 of Rule 2)
16. What is a counterclaim? Distinguish it from a cross-claim.

o A counterclaim is any claim which a defending party may have against an
opposing party.
o A counterclaim is distinguished from a cross-claim in that a cross-claim is

any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a
counterclaim therein. A counterclaim is against an opposing party while a
cross claim is against a co-party.(Section 6 and 8 of Rule 6)
17. What are the grounds for annulment of judgment of the RTC?
o The grounds for annulment of judgment of the RTC could either be
extrinsic fraud or lack of jurisdiction.(Section 2 of Rule 47)
18. What is an action for interpleader?

o An action for interpleader is a special civil remedy whereby a party who
has property in his possession or an obligation to perform, either wholly or
partially, but who claims no interest in the subject, or whose interest, in
whole or in part, is not disputed by others, goes to court and asks that
conflicting claimants to the property or obligation be required to litigate
among themselves in order to determine finally who is entitled to the
same. (Section 1 of Rule 62)
19. What are the available remedies of a party declared in default?

a. Before rendition of judgment ---- (a)He may file a motion under oath to
set aside the order of default on the grounds of fraud, accident,
mistake or excusable negligence and that he has a meritorious
defense; and if it is denied, he may move to reconsider, and if
reconsideration is denied, he may file a special civil action for certiorari
for grave abuse of discretion tantamount to lack or excess of lower
court’s jurisdiction; or (b) He may file a petition for certiorari if he has
been illegally declared in default, e.g. during the pendency of his
motion to dismiss or before the expiration of time to answer .(Matute
vs CA; 26 SCRA 768)
b. After judgment but before its finality ----- He may file a motion for new
trial on the grounds of fraud, accident, mistake, excusable negligence,
or a motion for reconsideration on the ground of excessive damages,
insufficient evidence or the decision or final order being contrary to
law; and thereafter, if the motion is denied, appeal is available under
Rules 40 and 41.(Section 2 of Rule 37)
c. After finality of judgment---- (a) By filing a petition for relief under

Rule 38 on the grounds of fraud, accident, mistake or excusable
negligence; (b) annulment of judgment under Rule 47 for extrinsic
fraud or lack of jurisdiction; or (c) certiorari if the judgment is void on
its face by the judicial record .(Balangcad vs Justices of the CA; 206
SCRA 171)
20. Does the failure of a counsel to inform the court of his client’s death constitute direct
contempt?

Page38
o No. It is not direct contempt under Section 1 of Rule 71, but it is indirect
contempt within the purview of Section 3 of Rule 71. The lawyer can also
be the subject of disciplinary action.(Section 16 of Rule 3)
21. What is forum shopping? What are the sanctions imposed for its violation?
o Forum shopping is the filing of multiple petitions, complaints or other
initiatory pleadings involving the same issues in the SC, CA or other
tribunals or agencies, with the result that said courts, tribunals or agencies
have to resolve the same issues.
o Any violation thereof shall be a cause for the dismissal of the complaint,
petition, application or other initiatory pleading, upon motion and after
hearing. However, any clearly, willful and deliberate forum shopping by
any party and his counsel through the filing of multiple complaints or other
initiatory pleadings to obtain favorable action shall be a ground for
summary dismissal thereof and shall constitute direct contempt of court.
Furthermore, the submission of false certification or non-compliance with
the undertakings therein shall constitute indirect contempt of court,
without prejudice to disciplinary proceedings against the counsel and the
filing of a criminal action against the guilty party.
22. What is meant by hierarchy of courts?

o By hierarchy of courts is meant that while the SC, the CA and RTC have
concurrent original jurisdiction to issue writs of certiorari, prohibition,
mandamus, quo warranto and habeas corpus, such concurrence does not
accord litigants unrestrained freedom of choice of the court to which
application therefore may be directed. The application should be filed with
the court of lower level unless the importance of the issue involved
deserves the action of the court of higher level.(Uy vs Contreras; 237 SCRA
167)
23. Distinguish joinder of causes of action from joinder of parties.

o Joinder of causes of action may be made in the same complaint by one
party against another; or by or against several parties. In case of joinder
of causes of action by one party against another, the totality of the
demand determines jurisdiction of the court.
o But in cases of joinder of causes of action by or against several parties, the
right to relief must arise out of the same transactions and there must be a
common question of fact or law.
24. What is the purpose of provisional remedies?

o The purpose of provisional remedies is to preserve or protect the rights or
interests of the parties during the pendency of the principal action .(Calo
vs Roldan; 76 Phil 445)
25. Distinguish special proceeding from an ordinary action.

o A special proceeding is a remedy to establish the status or right of a party
or a particular fact, while an ordinary action is one by which one party
prosecutes another for the enforcement or protection of a right or the
prevention or redress of a wrong.(Section 3 of Rule 1)
26. What pleadings are allowed by the rules? What pleadings must be verified? What is the
significance of a lawyer’s signature in the pleadings?
o The pleadings allowed by the rules are complaint, answer, counterclaim,
crossclaim, reply and third-party complaint.
o The pleadings which are required to be verified (a) initiatory pleadings

such as complaint or petition; (b) denial of genuiness and due execution of

Page39
a written instrument which is the basis of an action or defense; (c) denial

of allegations of usury; and (d) pleadings that summary in nature.
o The signature of the lawyer in the pleading constitutes a certification by

him that he has read the pleading; that to the best of his knowledge,
information and belief there is good ground to support it; and that it is not
interposed for delay. (Section 3 of Rule 7)
27. When may party be declared in default? What is the effect of the order of default?
o A party may be declared in default if he failed to file his answer within the
period provided for by the rules.
o A party declared in default shall be entitled to notice of subsequent

proceedings but not to take part in the trial.(Section 3 of Rule 9)
28. What is the rule on joinder on causes of action?

o The rule on joinder of causes of action is that a party may in one pleading
assert, in the alternative or otherwise, as many causes of action as he may
have against an opposing party, provided that the rule on joinder of
parties is complied with; the joinder shall not include special civil actions
or actions governed by special rules, but may include causes of action
pertaining to different venues or jurisdictions provided one cause of action
falls within the jurisdiction of a RTC and venue lies therein; and the
aggregate amount claimed shall be the test of jurisdiction where the
claims in all causes of action are principally for the recovery of money .
(Section 5 of Rule 2)
29. What are the grounds for judgment on the pleadings?

o The grounds for judgment on the pleadings are where an answer fails to
tender an issue, or otherwise admits of material allegations of the adverse
party’s pleading.(Section 1 of Rule 34)
30. Distinguish certiorari as a special civil action under Rule 65 from certiorari as a mode of
appeal under Rule 45 of the Rules of Court.
o The distinction between certiorari under Rule 65 and certiorari as a mode
of appeal under Rule 45 are as follows:
 Certiorari under Rule 65 is a special civil action which raises the
issue as to whether the lower court acted without jurisdiction or in
excess of jurisdiction or with grave abuse of discretion, whereas
certiorari under Rule 45 is a mode of appeal based on questions of
law;
 Certiorari under Rule 65 is directed against an interlocutory order
of the court or where there is no appeal or any other plain, speedy
or adequate remedy, whereas, certiorari under Rule 45 involves the
review of the judgment award or final order on the merits;
 Certiorari under Rule 65 must be filed not later than 60 days from
notice of judgment, order or resolution appealed from, whereas
certiorari under Rule 45, must be made within the reglementary
period for making an appeal; and
 Certiorari under Rule 65 does not stay the judgment appealed from
unless there is a writ of preliminary injunction or TRO, whereas
certiorari under Rule 45 stays the judgment or order appealed
from.
31. May a party resort to certiorari if appeal is still available? Explain.

o No, because as a general rule , certiorari is proper if there is no appeal.
However, if appeal is not a speedy and adequate remedy, certiorari may be
resorted to. Certiorari is sanctioned, even if appeal is available, on the
basis of a patent, capricious and whimsical exercise of discretion by a trial
judge as when an appeal will not promptly relieve petitioner from the

Page40
injurious effects of the disputed order .(Vasquez vs Robilla-Alenio; 271

SCRA 67)
32. May damages be claimed by a party prejudiced by a wrongful attachment even if the
judgment is adverse to him? Explain.
o Yes, damages may be claimed by a party prejudiced by a wrongful
attachment even if the judgment is adverse to him. This is authorized by
the Rules. A claim for damages may be made on account of improper,
irregular or excessive attachment, which shall be heard with notice to the
adverse party and his surety or sureties .(Section 20 of Rule 57)
33. What is the effect of death of a party in a pending action?

o When the claim in a pending action is purely personal, the death of either
of the parties extinguishes the claim and the action is dismissed. When the
claim is not purely personal and is not thereby extinguished, the party
should be substituted by his heirs or his executor or administrator. If the
action is for the recovery of money arising from the contract, express or
implied, and the defendant dies before entry of final judgment in the court
in which the action was pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff shall be enforced
in the manner provided in the rules for prosecuting claims against the
estate of a deceased persons.(Section 16 and 20 of Rule 3)
34. Give the effects of the following:

a. Splitting a single cause of action ----- The effect of splitting a single
cause of action is found in the rule as follows: “If two or more suits are
instituted on the basis of the same cause of action, the filing of one or
a judgment on the merits in any one is available as a ground for the
dismissal of the others.”(Section 4 of Rule 2)
b. Non-joinder of a necessary party. ------ The effect of non-joinder of a
necessary party is found in the rule as follows: “The court may order
the inclusion of an omitted necessary party if jurisdiction over his
person may be obtained. The failure to comply with the order for his
inclusion without justifiable cause is a waiver of the claim against such
party. The court may proceed with the action but the judgment
rendered shall be without prejudice to the rights of such necessary
party.” (Section 9 of Rule 3)
35. Give three instances when a Philippine court can take judicial notice of a foreign law.
How do you prove a foreign law? Suppose a foreign law was pleaded as part of the
defense of defendant but no evidence was presented to prove the existence of said law,
what is the presumption to be taken by the court as the wordings of said law?
o The three instances when a Philippine court can take judicial notice
of foreign law are:
 When the Philippine courts are evidently familiar with the
foreign law;
 When the foreign law refers to the law of the nations; and
 When it refers to a published treatise, periodical or
pamphlet on the subject of law if the court takes judicial
notice of the fact that the writer thereof is recognized in his
profession or calling as expert on the subject .(Section 1 of
Rule 29; Section 46 of Rule 130; Commentaries of Moran )
o A written foreign law may be evidence by an official publication

thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such
officer has the custody, if the office in which the record is kept is in

Page41
a foreign country, the certificate may be made by a secretary of the

embassy or legation, consul general, consul, vice-consul, or
consular agent or by any officer in the foreign service in the
Philippines stationed in a foreign country in which the record is
kept, and authenticated by the seal of his office.(Section 24 of Rule
132; Zalamea vs CA, 228 SCRA 23);
o The presumption is that the wordings of the foreign law are the
same as the local law. This is known as processual presumption.
(Northwest Airlines vs CA, 241 SCRA 192; Commentaries of Moran)
36. Distinguish:
a. An action in rem from an action quasi in rem --- An action in rem is one
where the judgment of the court binds the entire world and where the
object of which is to bind bar indifferently all who may object to the
right sough to be established, while an action quasi in rem is one
wherein an individual is named as defendant and the purpose of the
proceeding is to subject his interest therein to the obligation or lien
burdening the property.(Allba vs De la Cruz; 17 Phil 49 and Asiawest
Limited vs. CA; 296 SCRA 539)
b. An action quasi in rem from an action in personam ---- An action quasi

in rem sees judgment of a named defendant over a particular property.
On the other hand, an action in personam seeks a judgment against a
specific person himself, not on his interest on a property.
c. An action in personam from personal action ----- An action in personam

is a classification of an action according to its object. Here the action
seeks to make a party personally liable on a claim. On the other hand, a
personal action is a classification of action according to the foundation
of the suit. A personal action is founded upon privity of contract, the
recovery of personal property or recovery of damages.
d. An action in rem from real action ---- An action in rem has its object a
judgment that binds the whole world and is a classification of an action
according to its object. On the other hand, a real action is founded
upon privity of real estate and is a classification of an action according
to its foundation.
e. A personal action from a local action ---- A personal action is not

transitory. It is brought in either the residence of the plaintiff or of the
defendant. On the other hand, a local action is one brought in a
particular place depending on the location of the property subject of
the litigation.
37. State the steps for bringing up to the Supreme Court:

a. A decision of the MTC in an ejectment case ---- To bring up a decision
of the MTC of Manila in an ejectment case to the SC, it must first be
appealed to the RTC by notice of appeal, and the decision of the RTC
may be appealed to the CA through a petition for review, after which
the decision of the CA may be elevated to the SC through a petition for
review on certiorari. The decision of the RTC may be appealed directly
to the SC on questions of law only through a petition for review on
certiorari.
b. A decision of the Board of Assessment Appeals ---- To bring up a

decision of the Board of Assessment Appeals to the SC, it must first be
brought to the Central Board of Assessment Appeals after which the
decision of the CBAA may be brought to the SC in a special civil action
for certiorari.
Page42
c. A decision of the RTC in a case originally filed with said court and
where the appeal involves a pure question of law ----- To bring up to
the SC a decision of the RTC, in a case originally filed with said court
and where appeal involves a pure question of law, a petition for review
on certiorari should be filed.(Murillo vs Consul)
38. Is a motion to dismiss with counterclaim sanctioned by the Rules of Court?

o No, because a counterclaim is contained in an answer and not in a motion
to dismiss. What the defendant should do is to plead the ground of his
motion to dismiss as an affirmative defense in his answer, together with
his counterclaim, and ask for a preliminary hearing on his affirmative
defense as if a motion to dismiss had been filed.
39. How is jurisdiction acquired by a court over the person of:

a. The plaintiff in a special civil action for mandamus? ---- Jurisdiction is
acquired over the plaintiff in a special civil action for mandamus by the
commencement or filing of the action
b. The defendant in an action for unlawful detainer? ---- Jurisdiction is
acquired over the person of the defendant in action for unlawful
detainer by the proper service of summons on him or by his voluntary
appearance.
c. Non-resident defendant who is not found in the Philippines in an action
for compulsory acknowledgement of his natural child?---- Jurisdiction
cannot be acquired over the person of a non-resident defendant who is
not found in the Philippines in an action for compulsory
acknowledgement of his natural child because he is outside the
jurisdiction of the court.
40. Is the rule on demurrer to evidence the same in both civil and criminal actions?
o No. In civil cases, the defendant has the right to adduce evidence if his
motion for dismissal is denied. However if the motion is granted and the
order of dismissal is reversed on appeal, he loses the right to present
evidence.
41. Is pre-trial mandatory in all trial courts? Explain.

o Pre-trial is mandatory in all trial courts, both in civil and criminal cases. In
cases covered by summary procedure, a preliminary conference is being
held instead of a pre-trial.
42. May a party who is absent at the pre-trial of a civil case and assisted by counsel still be
declared non-suited or as in default? Explain.
o There is no more declaration of non-suited or declaration of default when
party is absent at the pre-trial of a civil case. With respect to the plaintiff,
his failure to appear at the pre-trial shall be a cause for the dismissal of
the action, with prejudice, unless otherwise ordered by the court. But with
respect to the defendant, his failure to appear at the pre-trial shall cause
to allow the plaintiff to present evidence ex parte and the court to render
judgment on basis thereof.(Section 5 of Rule 18)
43. What do you understand by Summary Judgment? How is it distinguished from a

Judgment on the pleadings?
o A summary judgment is one rendered by a court for prompt disposition of
civil actions wherein it clearly appears there exists no genuine issue or
controversy as to any material fact. On the other hand, a judgment on the
pleadings is one rendered by the court for prompt disposition of civil
actions where the answer fails to tender an issue or there is an admission
of material allegations.

Page43
44. Distinguish error of judgment from error of jurisdiction.

o An error of judgment is one which the court may commit in the exercise of
its jurisdiction. Such an error does not deprive the court of jurisdiction and
is correctible only by appeal; whereas an error of jurisdiction is one which
the court acts without or in excess of its jurisdiction. Such an error renders
an order or judgment void or voidable and is correctible by special civil
action of certiorari.(De la Cruz vs Moir, 36 Phil 213)
45. May the life span of the temporary restraining order issued by the trial court be
extended?
o The life span of a TRO is only twenty(20) days and that cannot be
extended.(Section 5 par. 2 of Rule 58)
46. May a judgment in a civil case be executed pending appeal. Explain.

o The answer depends on when the judgment was rendered. If the writ of
execution was applied within a period five(5) years from the date of entry
of final judgment or from the date it became final and executory, then the
judgment can still be executed even pending appeal. On the other hand, if
the writ of execution was applied beyond the period of five(5) years, then
the judgment can no longer be executed unless a motion for revival if the
judgment should be filed. (Section 6 of Rule 39)
47. What are the contents of a petition for review by certiorari, under Rule 45 of the Rules of
Court, from a judgment of the CA to the SC? When does this petition for review be filed?
How does this period differ from that required for filing the requisite petition in a special
civil action for certiorari?
o The petition shall set forth concisely a statement of the matters involved,
and the reasons or arguments relied on for the allowance of the petition
and it should be accompanied by a clearly legible duplicate original, or a
certified true copy of the judgment or final order or resolution certified by
the clerk of court of the court a quo and the requisite number of plain
copies thereof, and such material portions of the record as would support
the petition and most importantly, a sworn certification against forum
shopping.(Section 4 of Rule 45);
o This petition must be filed within fifteen(15) days from notice of judgment
or of the denial of his motion for reconsideration(Section 2 of Rule 45);
o The reglementary period for filing a special civil action for certiorari shall
be within a period of sixty(60) days from notice of judgment, order or
resolution sought to be assailed.(Section 4 of Rule 65)
48. What is a TRO? How is a TRO differ from a writ of Preliminary Injunction?
o A TRO is an order to maintain the subject of the controversy in status quo
until hearing of an application for preliminary injunction can be held.
o A Writ of Preliminary Injunction cannot be granted without notice to the

defendant or adverse party, whereas a TRO may be issued if it shall appear
from the facts shown by affidavits or by the verified complaint that great
and irreparable injury would result to the applicant before the matter can
be heard on notice.
o A Writ of Preliminary Injunction requires a bond to be filed by the

applicant, whereas a TRO does not.
49. What is the duration of a TRO issued by (i) RTC; (ii) CA; (iii) SC?
o RTC ---- the duration is 20 days;

Page44
o CA ---- the duration is 60 days from service on the party or person sought
to be enjoined; and
o SC ----- it shall be effective until further orders.(Section 5 of Rule 58)
50. What is jurisdiction and how does it differ from a cause of action? How are they
acquired? Explain.
o Jurisdiction is the authority to hear and determine a cause, the right to act
in a case. It is given by law and and in the manner prescribed by law;
whereas a cause of action is an act or omission of one party in violation of
the legal rights of the other.
51. What do you understand by totality rule in determining the jurisdiction of courts in civil
cases?
o Under the totality rule, where there are several claims or causes of action
between the same or different parties embodied in the same complaint,
the amount of the demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes of action arose out of
the same or different transactions.(Section 33 of BP 129)
52. What are the provisional remedies under the rules?

o The provisional remedies under the rules are preliminary attachment,
preliminary injunction, receivership, replevin and support pendente lite.
53. Can civil and criminal cases be adjudicated even without trial? Explain.
o Civil cases may be adjudicated without trial such as in the following rules:
(a) Summary Judgment; (b) Judgment on the Pleadings; (c) Summary
Procedure; and (d) Failure to prosecute.
o With respect to criminal cases, it cannot be adjudicated without trial with

the exception of the following instances: (a) plea of guilty; (b) motion to
quash on the ground of double jeopardy or extinction of criminal action or
liability; and (c) motion to dismiss on the ground of violation of the right to
speedy trial.
54. Is the failure to file a motion for reconsideration in the lower court as a condition
precedent for the granting of the writ of certiorari or prohibition always fatal? Explain.
o No. Under the following instances the failure to file a motion for
reconsideration before the lower court cannot be considered as fatal:
 The question of jurisdiction was squarely raised before and decided
by the respondent court;
 Public interest is involved;
 Case of urgency;
 Order is patent nullity;
 Issue is purely of law; and
 Deprivation of right to due process.
55. Can the defendant appeal the partial summary judgment without awaiting the judgment
in the three remaining causes of action? If he can, when? If he cannot, what is his
remedy?
o The partial summary judgment is interlocutory and hence not immediately
appealable, if the three other causes of action are related to the two
causes of action subject of the partial summary judgment and the
defendant’s counterclaim arises out of the transaction or occurrence which
is the subject matter of said two causes of action. In such case, the partial
summary judgment does not fully adjudicate the case and a trial is
necessary. Moreover, there may be genuine issue of fact that remain to be
tried.
o The defendant may wait for the final judgment to be rendered on all the
causes of action and the counterclaim and appeal therefrom within fifteen
Page45
days from notice thereof. In the event the court orders execution of its
partial summary judgment, the defendant may file a petition for certiorari
to set aside said order.(Guevarra vs CA, 124 SCRA 297)
56. When may motion for reconsideration be dispensed with?

o A motion for reconsideration may be dispensed in the following instances:
 Where the question of jurisdiction has been squarely raised, argued
before, submitted to, and met and decided by the respondent court;
 Where the questioned order is a patent nullity;
 Where there is a deprivation of the fundamental right to due
process;
 Where the issue involved is purely of law;
 Where pubic interest is involved; and
 In case of urgency.(PALEA vs PAL, 111 SCRA 215)
57. What is the effect of the death of the accused on his criminal liability? Explain.
o The death of the accused will extinguish his criminal liablility.( Article 89
par.1 of RPC)
58. What is the effect of the death of the accused on his civil liability caused solely on his
criminal act? Explain.
o The death of the accused pending appeal extinguishes not only his criminal
liability but also the civil liability based solely thereon.( People vs Bayotas,
236 SCRA 239)
59. What is the effect of the death of the accused on his civil liability based on quasi-delict or
tort? Explain.
o The death of the accused does not affect his civil liability based on quasi-
delict or tort.
60. May a judgment which has become final and executory still be questioned, attacked or
set aside? If so, how? If not, why not? Discuss fully.
o Yes. There are three ways by which a final and executory judgment may be
attacked or set aside and these are as follows:
 By petition for relief from judgment under Rule 38 on the grounds
of fraud, accident, mistake or excusable negligence within sixty
days from learning of the judgment and not more than six months
from its entry;
 By direct action to annul or enjoin the enforcement of the judgment
when the defect is not apparent on its face or from the recitals
contained in the judgment;
 By direct action, such as certiorari, or by a collateral attack against
the judgment which is void on its face or when the nullity of the
judgment is apparent by virtue of its own recitals.(Macabingkil vs
People’s Homesite and Housing Corporation, 72 SCRA 326)
61. A student files an action for declaratory relief against his school to determine whether he
deserved to graduate with Latin honors. Is the action tenable?
o No. The action for declaratory relief is not tenable. Whether the student
deserves to graduate with Latin honors does not fall within the matters
subject to declaratory relief, namely, a deed, a will, contract, or other
written instrument, or a statute, executive order or regulation, ordinance,
or any other governmental regulation.(Section 1 of Rule 63)
62. The RTC affirmed the appealed decision of the MTC. You are the counsel of the defeated
party and he tells you to appeal the RTC’s decision. What mode of appeal will you adopt?
Within what time and in what court should you file your appeal?
o The mode of appeal is by petition for review under Rule 42 of the 1997
Rules of Civil Procedure.

Page46
o The period of appeal is within fifteen(15) days from notice of the decision
subject of the appeal or of the denial of a motion for new trial or
reconsideration filed in due time. The appeal shall be filed in the Court of
Appeals.(Section 1 of Rule 42)
63. In a case, the property of an incompetent under guardianship was in custodia legis. Can
it be attached? Explain.
o Yes. Although the property of an incompetent under guardianship is in
custodia legis, it may be attached as in fact it is provided that in such case,
a copy of the writ of attachment shall be filed with the proper court and
notice of the attachment served upon the custodian of such property .
(Section 7 last paragraph of Rule 57)
64. What is the effect of absence of summons on the judgment rendered in the case?
o The effect of the absence of summons on a judgment would make the
judgment null and void because the court would not have jurisdiction over
the person of the defendant, but if the defendant voluntarily appeared
before the court, his appearance is equivalent to the service of summons .
65. Is summons required to be served upon a defendant who was substituted for the
deceased? Explain.
o No. A defendant who was substituted for the deceased need not be served
with summons because it is the court which orders him as the legal
representative of the deceased to appear and substitute the deceased .
66. If the judge refuses to grant the prosecutor’s motion to dismiss, may a special civil action
for mandamus lie to compel the judge to grant the motion?
o No. Mandamus will not lie because the court has discretion whether to
grant or deny the motion.
67. When is an appeal from the RTC to the CA deemed perfected?

o An appeal from the RTC to the CA is deemed perfected upon the expiration
of the last day to appeal by either party.(BP 129)
68. Who may issue an order of attachment and what are the contents of such an order?
o An order of attachment may be issued either ex parte or upon motion with
notice and hearing by the court in which the action is pending, or by the
CA or the SC, and must require the sheriff of the court to attach so much of
the property in the Philippines of the party against whom it is issued, not
exempt from execution, as may be sufficient to satisfy the applicant’s
demand.(Section 2 of Rule 57)
69. What are the different modes of appeal? How would each appeal be perfected? Within
what time should each appeal be perfected?
o The different modes of appeal are as follows:
 Ordinary Appeal ---- by filing a notice of appeal and pay appellate
court docket fee iwithin fifteen(15) days from receipt of judgment .
(Rule 40);
 Petition for Review--- by filing a verified petition for review before
the CA within fifteen(15) days from receipt of judgment from the
RTC in the exercise of its appellate jurisdiction .(Rule 42);
 Petition for review on certiorari ---- by filing a verified for review on
certiorari before the SC within fifteen(15) days from the receipt of
the decision or the denial of a motion for new trial or
reconsideration.(Rule 45)

Page47
Revised Rules of Criminal Procedure (effective December 1, 2000)
1. Give two grounds to quash an information.

o The two grounds to quash an information are as follows:
 That the facts do not constitute an offense; and
 That the court trying the case has no jurisdiction over the offense
charge or the person of the accused. (Section 3; Rule 117)
2. When is bail a matter of right and when is it a matter of discretion? In what forms may
bail be given?
o Bail is a matter of right under the following instances:
 Before or after conviction in the lower courts; and
 Before or after conviction by the RTC of an offense not punishable
by death, reclusion perpetua or life imprisonment.
o On the other hand, bail is a matter of discretion upon conviction by the

RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment, on application of the accused. If the penalty of
imprisonment exceeds six years but not more than 20 years, bail shall be
denied upon a showing by the prosecution, with notice to the accused, of
the following or other similar circumstances:
 That the acused is a recidivist, quasi-recidivist or habitual
delinquent, or has committed the crime aggravated by the
circumstances of reiteration;
 That the accused is found to have previously escaped from legal
confinement, evaded sentence, or has violated the conditions of his
bail without valid justification;
 That the accused committed the offense while on probation, parole,
or under conditional pardon;
 That the circumstances of the accused or his case indicate the
probability of flight if released on bail; or
 That there is undue risk that during the pendency of the appeal, the
accused may commit another crime.
o Bail may be given in the form of a corporate surety, or though a property

bond, cash deposit or recognizance. (Section 4, 5, 10 and 11; Rule 114)
3. If the information is not accompanied by a certification that a preliminary investigation

has been conducted, is the Information void?
o NO. The certification which is provided under Sec. 4, Rule 12 of the Rules
of Criminal Procedure, is not an indispensable part of the information.
(People vs Lapura; 225 SCRA 85)
4. What are the requisites of trial in absentia?

o The requisites of trial in absentia are: (a) the accused has already been
arraigned; (b) he has been duly notified of the trial; and (c) his failure to
appear is unjustifiable. (Section 14 par.2, Article 3 of the Constitution;
Parada vs Veneracion, 269 SCRA 371)
5. May the court require a witness to post bail? Explain your answer.
o YES. The court may require a witness to post bail if he is a material witness
and bail is needed to secure his appearance. The rules provide that when
the court is satisfied, upon proof or oath, that a material witness will not
testify when required, it may, upon motion of either party, order the
witness to post bail in such sum as may be deemed proper. Upon refusal to
post bail, the court shall commit him to prison until he complies or is
legally discharged after his testimony is taken.(Section 6; Rule 119)

Page48
6. Distinguish Complaint from Information.

o A complaint is a sworn statement, charging a person with an offense,
subscribed by the offended party, any peace officer or other public officer
charged with the enforcement of the law violated. On the other hand, an
information is an accusation in writing, charging a person with an offense,
subscribed by the prosecutor and filed with the court. (Section 3 and 4;
Rule 110)
7. Will injunction lie to restrain the commencement of a criminal action? Explain.

o As a general rule, injunction will not lie to restrain a criminal prosecution,
except:
 To afford adequate protection to the constitutional rights of the
accused;
 When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
 When double jeopardy is clearly apparent;
 Where the charges are manifestly false and motivated by the lust
for vengeance;
 Where there is clearly no prima facie case against the accused and
a motion to quash on that ground has been denied. (Roberts, Jr vs
CA; 254 SCRA 307 and Brocka vs Enrile; 192 SCRA 183)
8. What is a prejudicial question?

o A prejudicial question is an issue involved in a civil action which is similar
or intimately related to the issue raised in the criminal action, the
resolution of which determines whether or not the criminal action may
proceed.(Section 5, Rule 111)
9. When the accused is entitled as a matter of right to bail, may the Court refuse to grant
him bail on the ground that there exists a high degree of probability that he will abscond
or escape? Explain.
o If bail is a matter of right, it cannot be denied on the ground that there
exists a high degree of probability that the accused will abscond or escape.
What the court can do is to increase the amount of the bail. One of the
guidelines that the judge may use in fixing the reasonable amount of bail
is the probability of the accused appearing in trial.( Section 9 par.g of Rule
114)
10. What is a Terry search ( or so called “stop and frisk”)? Is it justified under existing law
and jurisprudence? Explain.
o A Terry search is a stop and search without a warrant. It is justified when
conducted by police officers on the bases of prior confidential information
which were reasonably corroborated by other attendant matters .(Aniag,
Jr. vs COMELEC, 237 SCRA 424)
11. What is the effect of death of the accused in a criminal case if the complainant did not
make the necessary reservation to file a separate civil action for damages?
o If the complainant did not make the necessary reservation to file a
separate civil action for damages, he could still file a separate civil action
against the executor/administrator or heirs of the estate of the deceased.
12. When does double jeopardy exist?

o Double jeopardy exists when in the first case (a) the complaint or other
formal charge was sufficient in form and substance; (b) the court had
jurisdiction; (c) the accused had been arraigned and had pleaded; and (d)
the accused was acquitted or convicted or the first case was dismissed
without his express consent.
13. State the rule on demurrer to evidence in the trial of criminal cases.

Page49
o The rule on demurrer to evidence in the trial of criminal cases is stated as

follows:
 The filing of a motion to dismiss without leave of court results in the
submission of the case for decision on the basis of the evidence on
record and does not lie from such order denying the motion to dismiss.
 If said motion to dismiss is sustained, such dismissal being on the
merits is equivalent to an acquittal, hence the prosecution cannot
appeal as it would place the accused in double jeopardy; and
 An order denying a demurrer to evidence being interlocutory is not
appealable.(Section 23 of Rule 119)
14. May a person be arrested without a warrant? May a house be searched without a search
warrant? How about a person, may he be searched without warrant?
o A person may be arrested without warrant under the following instances:
 When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
 When an offense has in fact just been committed and he has personal
knowledge of the facts indicating that the person to be arrested has
committed it; and
 When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another .(Section 5 of Rule
113)
o A house may not be searched without warrant in view of the constitutional

prohibition against unreasonable searches and seizures. However, a
person who has lawfully been arrested may be searched without a
warrant, inasmuch as the search is incidental to a lawful arrest .(Section
13 of Rule 126)
15. How shall the court promulgate judgment in the absence of the accused?
o In the absence of the accused, the promulgation of judgment shall be
made by recording the judgment in the criminal docket and serving him a
copy thereof at his last known address or thru his counsel .(Section 6 of
Rule 120)
16. Within the context of the rule on Criminal Procedure, distinguish an amendment from a
substitution of an information.
o Within the context of the Rule on Criminal Procedure, the distinction
between an amendment and substitution of an information are stated as
follows:
 An amendment may involve either formal or substantial changes while
substitution involves substantial change from the original charge;
 An amendment before the plea has been entered can be effected
without leave of court, while substitution of information must be with
leave of court since the original information has to be dismissed;
 Since amendment is only as to form, there is no need for another
preliminary investigation and the retaking of the plea of the accused,
while in substitution, another preliminary investigation should be
conducted and the accused has to plead to the new information; and
 An amended information refers to the same offense charged in the
original information or to an offense which necessarily includes or is
necessarily included in the original charge, while a substituted
pleading requires or presupposes that the new information involves a
different offense which does not include or is not necessarily included
in the original charge.
17. May the prosecution of a criminal case be enjoined? Explain.

Page50
o The prosecution of a criminal case may be enjoined under the following

exceptional instances:
 For the orderly administration of justice;
 To prevent the use of the strong arm of the law in an oppressive or
vindictive manner;
 To avoid multiplicity of suits;
 To afford adequate protection to constitutional rights; and
 In proper cases, when the statute relied upon is unconstitutional .
(Primicias vs Municipality of Urdaneta, 93 SCRA 462)
18. May the RTC judge refuse to order the dismissal of the criminal case and insist on the
arraignment and trial of the accused?
o Yes. Upon the filing of the information, the court acquires jurisdiction over
the criminal action. The subsequent filing of a motion for dismissal, even
upon the direction of the Secretary of Justice, is addressed for the
consideration of the court, and the court in the exercise of its discretion
may grant the motion or deny it and require the arraignment and trial of
the accused to proceed.(Crespo vs Mogul, 151 SCRA 462)
19. May bail be granted even if what is charged is a capital offense and the evidence of guilt
is strong? Explain.
o No. Under the rules, no person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is strong, regardless of the stage of
criminal prosecution.(Section 7 of Rule 114)
20. After the prosecution rested its case in a criminal action, the accused filed a demurrer to
evidence. If the court denies said motion, may the accused adduce evidence in his
defense?
o It depends. If the accused filed the demurrer to evidence with leave of
court, the denial of the said motion may entitle the accused to adduce
evidence in support of his defense. But if the accused filed the demurrer to
evidence without leave of court, the denial of the said motion will waive
the right of the accused to present evidence and submit the case for
judgment on the basis of the evidence presented by the prosecution.
21. If the accused meted the penalty of reclusion perpetua by the RTC, what should he do to
have his case reviewed by the proper appellate court?
o The accused should file a notice of appeal before the RTC which rendered a
judgment sentencing him the penalty of reclusion perpetua and he shouls
serve a copy of the notice of appeal to the adverse party .(Section 3 par.a
of Rule 122)
Revised Rules on Evidence
1. What are the exceptions to the hearsay rule?

o The exceptions to the hearsay rule are: dying declaration, declaration
against interest, act or declaration about pedigree, family reputation or
tradition regarding pedigree, common reputation, part of the res gestae,
entries in the course of business, entries in official records, commercial
lists and the like, learned treatises, and testimony or deposition at a
former proceeding. (Section 37 to 47; Rule 130)
2. State or explain the Best Evidence Rule.

o When the subject of the inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself, except in the
following instances:

Page51
 When the original has been lost or destroyed, or cannot be produced in

court, without bad faith on the part of the offeror;
 When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it
after reasonable notice;
 When the original consists of numerous accounts or other documents
which cannot be examined in court without great loss of time and the
fact sought to be established from them is only the general result of
the whole; and
 When the original is a public record in the custody of a public officer or
is recorded in a public office.(Section 3; Rule 130)
3. State or explain briefly the Parol Evidence Rule.

o When the terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and there can be,
between the parties and their successors in interest, no evidence of such
terms other than the contents of the written agreement. (Section 9; Rule
130)
4. Give the reasons underlying the adoption of the following rules of evidence:
a) Dead Man Rule ----- If death has closed the lips of one party, the policy
of the law is to close the lips of the other. This is to prevent the
temptation of perjury because death has already sealed the lips of the
party.(Goni vs CA; September 23, 1986)
b) Parol Evidence Rule.----- It is designed to give certainty to a
transaction which has been reduced to writing, because written
evidence is much more certain and accurate than that which is more
certain and accurate than that which rests on fleeting memory only.
(Commentaries of Francisco)
c) Best Evidence Rule.----- This rule is adopted for the prevention of fraud
and is declared to be essential to the pure administration of justice. If
a party is in possession of such evidence and withholds it, the
presumption naturally arises that the better evidence is withheld for
fraudulent purposes. (Commentaries of Francisco)
d) The rule against the admission of illegally obtained extrajudical
confession.---- An illegally obtained extrajudicial confession nullifies
the intrinsic validity of the confession and renders it unreliable as
evidence of the truth.(Commentaries of Moran)
e) The rule against the admission of an offer of compromise in civil
cases.----The reason for the rule against admission of an offer of
compromise in civil case as an admission of any liability is that parties
are encouraged to enter into compromises. Courts should endeavor to
persuade the litigants in a civil case to agree upon some fair
compromise. During pre-trial, courts should direct the parties to
consider the possibility of an amicable settlement. (Article 2029 of the
Civil Code; Section 2 Rule 20)
5. When are the following pieces of evidence formally offered?

a) Testimonial evidence---- It is formally offered at the time the witness
is called to testify.
b) Documentary evidence---- It is formally offered after the presentation
of the testimonial evidence.
c) Object evidence---- It is also offered after the presentation of the
testimonial evidence.(Section 35; Rule 135)
6. What are the two kinds of objections? Explain each briefly. Given an example of each.
Page52
o The two kinds of objections are:

 The evidence being presented is not relevant to the issue. An example
of this is when the prosecution offers as evidence the alleged offer of
an insurance company to pay for the damages suffered by the victim in
a homicide case; and
 The evidence is incompetent or excluded by the law or the rules. An
example of this is when the evidence obtained in violation of the
Constitutional prohibition against unreasonable searches and seizures
and confessions and admissions in violation of the rights of a person
under custodial investigation.
7. What is the probative value of a witness’ Affidavit of Recantation?

o On the probative value of an affidavit of recantation, courts look with
disfavor upon recantations because they can easily be secured from
witnesses, usually through intimidation or for a monetary consideration.
Recanted testimony is exceedingly unreliable. There is always the
probability that it will be repudiated.(Molina vs People; 259 SCRA 138)
8. Give the requisites of (a) newly discovered evidence; and (b) dying declaration.
o The requisites for newly discovered evidence are (a) the evidence offered
was discovered after the trial; (b) such evidence could not have been
discovered and produced at the trial with reasonable diligence; and (c)
that it is material, not merely cumulative, corroborative or impeaching,
and is of such weight that, if admitted, will probably change the judgment.
(Commissioner of Internal Revenue vs A. Soriano Corporation; 267 SCRA
313)
o The requisites for the admissibility of a dying declaration are: (a) the
declaration is made by the deceased under the consciousness of an
impending death; (b) the deceased was at the time competent as a
witness; (c) the declaration concerns the cause and surrounding
circumstances of the declarant’s death; and (d) the declaration is offered
in a case wherein the declarant’s death is the subject of the inquiry .
(People vs Santos; 270 SCRA 650)
9. A was accused of raping X. Rule on the admissibility of the following pieces of evidence:
a) An offer of A to marry X ---- This is admissible in evidence as an implied
admission of guilt because rape cases are not allowed to be
compromised.(Section 27 of Rule 130; People vs Domingo, 226 SCRA
156)
b) A pair of short pants allegedly left by A at the crime which the court,
over the objection of A, required him to put on, and when he did, it fit
him well ---- This is circumstantial evidence of his guilt, although
standing alone it cannot be the basis of his conviction. The accused
cannot object to the court requiring him to put the short pants on
because it is a mere physical act.
10. Why is the Best Evidence Rule often described as a misnomer?

o The best evidence rule is a misnomer because it merely requires the best
evidence available and, in the absence thereof, allows the introduction of
secondary evidence.
11. Distinguish extrajudicial admission from extrajudicial confession in criminal cases.

o An extrajudicial admission is a statement of fact which does not directly
involve an acknowledgement of guilt or criminal intent, while an
extrajudicial confession is a declaration of an accused that he has
committed or participated in the commission of a crime.
12. In the examination of witnesses, what is meant by laying the predicate?

o Laying the predicate is the procedure of impeaching a witness by evidence
of prior inconsistent statements. Before such a witness can be impeached,

Page53
the prior statements must be related to him, with the circumstances of the
time and places and the persons present, and he must be asked whether
he made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to him before any question is
put to him concerning them.
13. Explain the equipoise doctrine in the law of evidence and cite its constitutional and
procedural bases.
o Equipoise is the equivalent of equiponderance off evidence. When the
scale shall stand upon an equipoise and there is nothing in the evidence
which shall incline it to one side or the other, the court will find for the
defendant.
o The constitution provides that no person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied the
equal protection of the law.
o Burden of proof is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of
evidence required by law.
o In a criminal case, its constitutional basis is the presumption of innocence
and the requirement of proof beyond reasonable doubt for conviction .
(Commentaries of Moran; Section 1 of Article 3 of the Constitution)
14. Is the result of the paraffin test admissible in evidence?

o The result of the paraffin test is admissible in evidence although it is not
conclusive and is not the only evidence that should be considered.
15. Is the photocopy of the marked money real(object) evidence or documentary evidence?
Is the photocopy admissible in evidence?
o The photocopy of the marked bills is real(object) evidence not
documentary evidence, because the marked bills are real evidence.
o Yes, the photocopy is admissible in evidence, because the best evidence
rule does not apply to object or real evidence .(People vs Tandoy, 192
SCRA 28)
16. Distinguish formal offer of evidence from offer of proof.

o A formal offer of the testimony of a witness is made at the time the
witness is called to testify, while a formal offer of documentary evidence is
made after the presentation of a party’s testimonial evidence.
o On the other hand, if documents or things offered in evidence are excluded
by the court, the offer of proof is made by having the same attached to or
made part of the record; and if the evidence excluded is oral, the offer of
proof is made by stating for the record the name of the witness and the
substance of the proposed testimony.(Section 40 of Rule 132)
17. What is the difference between an offer of testimonial evidence and an offer of
documentary evidence?
o An offer of testimonial evidence is made at the time the witness is called to
testify, while an offer of documentary evidence is made after the
presentation of a party’s testimonial evidence.(Section 35 of Rule 132)
18. What is the difference between a broadside objection and a specific objection to the
admission of documentary evidence?
o A broadside objection to the admission of documentary evidence is to be
distinguished from a specific objection in that a broadside objection is a
general objection such as incompetent, irrelevant and immaterial, while a
specific objection is limited to a particular ground.
19. Can a money claim against the estate based on the promissory note made by the
deceased be proved? If so, how? Explain.

Page54
o Yes. The claimant should attach a copy of the promissory note executed by
the deceased in his favor to his claim and serve a copy thereof on the
executor or administrator. If the executor or administrator admits or does
not deny the claim in his answer, the court may approve the same.
20. Is the identification by the deceased of his assailant admissible in evidence as an ante-
mortem statement as an exception to the hearsay rule?
o Yes. The identification by the deceased of his assailant may form part of
his dying declaration even if the person died the next day.
21. In a criminal case, is the offer by the accused to pay the hospitalization expenses
admissible in evidence? Is the offer by the accused’s insurance to pay for the injuries and
damages admissible in evidence?
o The offer to pay the hospitalization expenses is not admissible in evidence
to prove his guilt in both civil and criminal cases.
o No. It is irrelevant. The obligation of the insurance company is based on

the contract of insurance and is not admissible in evidence against the
accused because it was not offered by the accused but by the insurance
company which is not his agent.(Section 27 of Rule 130)
22. Can the proponent ask in re-direct examination questions on matters not dealt with
during cross-examination?
o Yes, on redirect examination, question on matters not dealt with during
the cross-examination may be allowed by the court in its discretion.
23. Can the opponent in his re-cross examination ask questions on matters not dealt with
during the re-direct?
o Yes, the opponent in his re-cross-examination may also ask questions on
such other matters as may be allowed by the court in its discretion .
24. If the accused on the witness stand repeats his earlier uncounseled extrajudicial
confession implicating his co-accused in the crime charged, is that testimony admissible
in evidence against the latter?
o Yes. The accused can testify by repeating his earlier uncounseled
extrajudicial confession, because he can be subjected to cross-
examination.
25. What is the res inter alios acta rule?

o The rights of a party cannot be prejudiced by an act, declaration, or
omission of another, subject to exceptions provided by the rules .(Section
28 of Rule 130)
26. What is the rule on marital privilege? What is the doctrine on parental privilege? What is
the doctrine of privileged communication between patient and physician?
o The rule on marital privilege provides that the husband or the wife, during
or after the marriage, cannot be examined without the consent of the
other as to any communication received in confidence by one from the
other during the marriage, except in a civil case filed by one against the
other, or in a criminal case for a crime committed by one against the other
or the latter’s direct descendants or ascendants;
o The doctrine of parental privilege provides that no person may be

compelled to testify against his parents or other direct ascendants; and
o The doctrine of privilege communication between patient and physician

provides that a person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the patient, be
Page55
examined as to any advice or treatment given by him or any information

which he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in that
capacity, and which would blacken the reputation of the patient .(Section
24 and 25 of Rule 130)
27. Is the agreement to settle as well as the offer to pay P30,000 by the accused admissible
in evidence against him as an implied admission of guilt. Explain.
o It depends. If it is a criminal case, with the exception of reckless
imprudence, the offer to pay P30,000.00 may be admissible as an implied
admission of guilt. However, if it is a civil case, the offer to pay P30,000.00
may be admissible as an implied admission of guilt .(Section 27 of Rule
130)
Rules on Special Proceedings
1. What are the requisites in order that a lost or destroyed Will may be allowed?
o In order that a lost or destroyed will may be allowed, the following
must be complied with:
 The execution and validity of the same should be established;
 The will must have been in existence at the time of the death of the
testator, or shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge; and
 Its provisions are clearly and distinctly proved by at least two
credible witnesses.(Section 6; Rule 76)
2. A’s will was allowed by the court. Later, a criminal action for forger was filed against X.
May the due execution of the Will be validly questioned in such criminal action?
o NO. The allowance of the will from which no appeal was taken is
conclusive as to its due execution. Due execution includes a finding that
the will is genuine and not a forgery. Accordingly, the due execution of the
will cannot again be questioned in a subsequent proceeding, not even in a
criminal action for forgery of the will. (Section 1; Rule 75)
3. What is meant by a preliminary citation in cases involving deprivation of personal liberty?

Explain.
o A preliminary citation merely requires the respondent to appear and show
cause why the peremptory writ of habeas corpus should not be granted .
(Lee Yick Hon. vs. Collector of Customs, 41 Phil 548)
4. How is a preliminary citation distinguished from peremptory writ of habeas corpus?

Explain.
o The peremptory writ of habeas corpus directs the officer to have the body
of the person restrained of his liberty before the court or judge designated
in the writ at the time and place therein specified.
5. If a person left a holographic will, how may it be probated?

o A holographic will may be probated by filing a petition for the allowance of
said will. If it is not contested, at least one competent witness who knows
the handwriting and signature of the testator should explicitly declare that
the will and the signature are in the handwriting of the testator. In the
absence of any such competent witness, and if the court deem it
necessary, expert testimony may be resorted to. If it is contested, at least
three witnesses who know the handwriting of the testator. In the absence
of any competent witness, and if the court deem it necessary, expert
testimony may be resorted to.

Page56
The 1991 Revised Rules on Summary Procedure
1. In what civil cases is the Summary Procedure before MTC/MCTC applicable?

o Summary Procedure is applicable in the following civil cases:
 All cases of forcible entry and unlawful detainer, irrespective of the

amount of damages or unpaid rentals sought to be recovered.
Where attorney’s fees are awarded, the same shall not exceed
twenty thousand pesos (P20,000.00); and
 All other civil cases, except probate proceedings, where the total
amount of the plaintiff’s claim does not exceed ten thousand pesos
(P10,000.00) (Section 1-A of the Revised Rule of Summary
Procedure)
2. In what criminal cases is the Summary Procedure before the MTC/MCTC applicable?
o Summary Procedure is applicable in the following criminal cases:
 Violations of traffic laws, rules and regulations;
 Violations of rental law;
 Violations of municipal or city ordinances;
 All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine
not exceeding one thousand pesos (P1,000.00), or both, irrespective of
other imposable penalties, accessory or otherwise, or of the civil
liability arising therefrom: Provided, however, That in offenses
involving damage to property through criminal negligence, this Rule
shall govern where the imposable fine does not exceed ten thousand
pesos (P10,000.00) (Section 1-B of the Revised Rule on Summary
Procedure)
3. Distinguish between the effects of the failure to file an answer in a civil case governed by
Summary rules and in a civil case governed by the regular provisions of the Rules of
Court?
o In a civil case governed by the Rules of court, the failure of the defendant
to file an answer may allow the plaintiff to file a motion before the court
for the declaration of his default. On the other hand, in a civil case
governed by the summary rules, the failure of the defendant to file his
answer will not result the to the declaration of default. But, instead, the
court may motu proprio or on the 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 .(Section 3 of Rule 9; Section 6 of the
Revised Rules on Summary Procedure)
4. Is the unlawful detainer case filed by the administrator of the estate against the lessor
subject to the prior referral to the lupon?
o YES. All disputes involving real property or any interest therein shall be
brought in the barangay where the real property or the larger portion
thereof is situated.(Section 409 of RA no. 7160)
Local Government Code on Conciliation Procedures
1. What is the object of the law in referring the case to the barangay level prior to its filing
in court?
o The object of the law in referring the case to the barangay level prior
to its filing in court is to effect an amicable settlement of disputes
among family and barangay members at the barangay level without
judicial recourse and consequently help relieve the courts of docket

Page57
congestion.(Preamble of PD no. 1508, the former and first

Katarungang Pambarangay law)
2. What is the effect of plaintiff’s failure to resort to the conciliation process provided in the
LGC?
o The plaintiff’s failure to resort to the conciliation process provided in the
LGC will result to the dismissal of the complaint on the ground of his
failure to comply with the conditions precedent.(Section 1(j) of Rule 16)

Page58

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Lex Cervus/Augustiniana

CODAL PROFICIENCY Q & A Copy in CIVPRO

a) May the court refuse to dismiss the complaint? Why?

b) If the complaint was dismissed, may the same be re-filed? Why?

 A counterclaim is any claim, which a defending party may have

 A cross-claim is any claim by one party against a co-party arising

 Negative defenses refers to specific denial of material fact or facts

 A reply is a pleading, the function of which is to deny, or allege

THE CREW: MELVIN RECONGCO, BUDDY AGUILAR, JONATHAN NICOLAS, ULY

(b) Distinguish personal service from service in person.

 The plaintiff is not deemed to have admitted the allegations of

 Personal service is applicable to the service of pleadings, motions,

5. (a) What are the requisites for extraterritorial service?

(b) In what instances may summons by publication be effected in an action in personam

 The requisites for extraterritorial service are as follows:

 Summons by publication may be effected in an action in personam

b. When any action is commenced against a defendant who

6. (a) What are the requirements for an intervention?

 A permissive counterclaim and a compulsory counterclaim may be

b. The docket and other lawful fees should be paid for a

c. permissive counterclaim should be accompanied by a

d. A permissive counterclaim must be answered by the party

 An error of jurisdiction is one where the court, officer or quasi-judicial

prejudice has been caused by it. An error of judgment can be reviewed

9. When is the filling of a reply advisable?

 The filing of a reply is advised if the defense in the answer is based

 The court is not correct in requiring the parties to present their

 The court is not correct in rendering judgment against DD because

THE CREW: MELVIN RECONGCO, BUDDY AGUILAR, JONATHAN NICOLAS, ULY

 The denial by the court of the motion for preliminary hearing is

 The court was not correct in dismissing the compulsory

THE CREW: MELVIN RECONGCO, BUDDY AGUILAR, JONATHAN NICOLAS, ULY

 The compulsory counterclaim will not be dismissed. If a complaint

 The pre-trial should be cancelled. It is clearly provided under the

 If I were the counsel of Mr. DD, I would file a motion to dismiss on

 The adverse effect of failure to make a specific denial under oath of

specific denial under oath. Otherwise, there will be an implied

 The action of the court in dismissing the complaint based on

 The order of the court in allowing the plaintiffs to present their

23. How may the non-appearance of a party in the pre-trial be excused?

 The non-appearance of a party in the pre-trial may be excused only

THE CREW: MELVIN RECONGCO, BUDDY AGUILAR, JONATHAN NICOLAS, ULY

 If the answer fails to specifically deny the material allegations in

 If the defendant fails to appear in the presentation of his evidence,

 If the plaintiff fails to appear in the pre-trial conference, then the

 If the complaint is unsigned, then it may be remedied upon

 If the demurrer to evidence filed by the defendant was correctly

THE CREW: MELVIN RECONGCO, BUDDY AGUILAR, JONATHAN NICOLAS, ULY

 If the demurrer was granted, certiorari is not the remedy of the

 It is the non-filing by the defendant of his pre-trial brief which

34. Give five (5) purposes of the pre-trial.

 The five (5) purposes of the pre-trial are as follows:

35. Distinguish pre-trial in a civil case from pre-trial in a criminal case.

 In an ordinary civil action, a pre-trial may be called after the last

 A trial may be postponed on the ground of illness of counsel or a

counsel at the trial is indispensable, and (2) that the character

38. How may a trial be postponed on the ground of absence of evidence?

 A trial may be postponed on the ground of absence of evidence