PART II: Fill in the blanks (20 pts)
8. Is one who has a correlative obligation, whose act or omission violates the legal rights of
Sec. 2 Parties in interest A real party in interest is the party who (1) _____ to be benefited or
injured by the judgment in the suit, or the party (2) _____ to the (3) _____ of the suit. Unless
otherwise authorized by law or these Rules, every action must be prosecuted or defended in the
name of the real party in interest.
Sec. 8 Necessary party A necessary party is one who is not (4) ______ but who ought to be
joined as a party if (5) _____ relief is to be accorded as to those already parties, or for a complete
determination or (6) _____ of the claim subject of the action.
Sec. 12 Class suit When the subject matter of the (7) _____ is one of common or general
interest to many persons so numerous that it is (8) _____ to join all as parties, a (9) _____ of
them which the court finds to be sufficiently numerous and representative as to fully protect the
interest of all (10) _____ may sue or defend for the benefit of all. Any part in interest shall have
the right to (11 _____ to protect his (12) _____ interest.
Sec. 18 Incompetency or incapacity If a party becomes incompetent or incapacitated, he court,
upon (13) _____ with notice, may allow the action to be continued by or (14) ____ against the
incompetent or incapacitated person assisted by his legal guardian or guardian ad litem.
Sec. 20 Action on contractual money claims When the action is for recovery of money arising
from (15) _____, express or implied, and the defendant dies before (16) _____ of final judgment
in the court in which the action was (17) _____ at the time of such death, it shall not be dismissed
but shall (18) _____ be (19) _____ to continue until entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be (20) _____ in the manner especially provided in these
Rules for prosecuting claims against the estate of a deceased person.
Identify the following (20 pts)
1. Is an allegation of new matter, which although hypothetically admitting the material
allegations in the pleading would nevertheless bar or prevent recovery.
2. Is a claim by one party against a co-party arising out of a transaction/occurrence that is
the subject matter either of the original action or the counter-claim. CROSS-CLAIM.
3. Is an affidavit that the affiant has read the pleading and that the allegations therein are
true and correct of his personal knowledge and/or is based on authentic records.
4. Occurs when a party attempts to have his action tried in a particular court or jurisdiction
where he feels he will receive the most favorable judgment.
5. The institution by a party of more than one suit where the filing of one or a judgment
upon the merits in anyone is available as a ground for the dismissal of the others.
SPLITTING A CAUSE OF ACTION.
6. An action brought against a person based on personal liability to the person bringing it.
ACTION IN PERSONAM.
7. The right to commence and maintain an action, it is a remedial right that depends on
substantive law. RIGHT OF ACTION.
another. DEFENDANT.
9. Exists when the plaintiff is not the real party in interest.
10. An action that affects title to or possession of real property, or interest therein. REAL
ACTION.
TRUE OR FALSE- RIGHT MINUS WRONG
1. An answering defendant cannot be allowed to litigate as an indigent party. FALSE
2. The defendants recourse against a complaint which fails to include an indispensable party is to
move for the dismissal of the complaint. TRUE
3. A counterclaim existing at the time of the filing of an answer may be set up by way of a
supplemental pleading with the permission of the court, before judgment. TRUE
4. Jane has to separate credits against John, one for PHP 20,000.00 and another for PHP
15,000.00. Since both credits are due and demandable, Jane must file only one complaint
against John. TRUE
5. A dismissal on the ground of improper venue may require the filing of motion to dismiss. TRUE
6. A specific denial must always be made under oath. FALSE
7. Juan, claiming to be the owner of a parcel of land, may file a single complaint for its recovery
against 50 persons who each occupied a distinct portion of the land. FALSE
8. Plaintiff may file an action for rescission of a contract in the RTC sitting in the place where he
resides, even if the contract provides that an action thereon may be brought by the parties at the
exclusive option of the plaintiff in the RTC of Manila. FALSE
9. A necessary party is to be impleaded as a party for complete determination of an action, while
an indispensable party is impleaded for a final determination of an action. TRUE
10. An ultimate fact is an essential fact constituting the plaintiffs cause of action. TRUE
11. A third party claim is any claim by one party against another person not yet a party arising out
of the transaction or occurrence that is the subject matter either of the original action or of a
counter-claim therein. TRUE
12. Every ordinary civil action must be based on a right of action. FALSE
13. A real party in interest is always an indispensable party. FALSE
14. An instituted action for the payment of a sum of money shall be allowed to continue until entry
of final judgment if the obligor dies during its pendency. TRUE
15. Venue and jurisdiction may be waived. FALSE
16. A cross-claim is any claim by one party against another person not yet a party arising out of
the transaction or occurrence that is the subject matter either of the original action or of a counter-
claim therein. FALSE
17. A verification and certification against forum shopping are required in all pleadings. FALSE
18. An ultimate fact is an essential fact constituting the plaintiffs cause of action. TRUE
19. A specific denial must always be made under oath. FALSE
20. A court has the power to motu proprio dismiss a complaint because it is barred by the statute 4. Juan files a case against Jose to recover possession of a parcel of land that he
of limitations. TRUE occupies. Jose claims that the parcel of land was bought by his sister from John, the former
21. A counterclaim existing at the time of the filing of an answer may be set up by way of a owner. Can and how may John be made a party in the pending case?
supplemental pleading with the permission of the court, before judgment. TRUE a. Yes, by the filing of a third party complaint
22. An amended complaint must always be answered within 15 days from service of a copy b. YES, BY THE INTERVENTION OF JOSES SISTER
thereof. TRUE c. No, as there is no privity of contract between Jose and John
23. A bill of particulars is not a pleading but is part of a pleading. TRUE d. No, as the action of Juan may only be filed against Joses sister
24. Service by mail can only be resorted to in case of impossibility of personal service. TRUE
25. Personal service of summons is available in an action against a defendant who does not 5. A files a complaint against B. The allegations in the complaint do not appear to have any
reside in the Philippines but whose whereabouts in the Philippines can be ascertained. TRUE factual basis. The appropriate remedy of B in this case is to:
26. Pleadings may be amended as a matter of right several times as long as no responsive a. File a motion for a Bill of Particulars
pleading has been filed. FALSE b. FILE A MOTION TO DISMISS AS THE COMPLAINT STATES NO CAUSE OF
27. A defendant cannot litigate as an indigent party. FALSE ACTION
28. Filing of an unsigned pleading always subjects counsel to appropriate disciplinary action. c. File a motion to dismiss on the ground that the action is unenforceable under
FALSE the Statute of Frauds
29. Allegations of mistake may be averred generally. TRUE d. Neither a, b, or c
30. Default is always the necessary consequence of the failure to plead within the period provided 6. Mario files a case for recovery of personal property against Maria. In her answer to the
by the Rules. FALSE complaint, Maria says that she cannot return them because she had sold them to finance her
business. If you were counsel for Mario, what action would you subsequently take:
31. Misjoinder of causes of action is not a ground for dismissal of actions. TRUE a. FILE A MOTION TO SET THE CASE FOR PRE-TRIAL
32. A court exercising original jurisdiction can also exercise appellate jurisdiction. TRUE b. File a motion for Judgment on the Pleadings
33. A real party in interest is always an indispensable party. FALSE c. File a motion for Summary Judgment
34. Misjoinder of causes of action is not a ground for dismissal of actions. TRUE d. File a motion for Production of Documents to obtain relevant information
35 A real party in interest-plaintiff is one who has an enforceable legal right. TRUE regarding the business of Maria
36. A necessary partys presence is necessary to adjudicate the whole controversy but whose
interests are so far separable that a final decree can be made in their absence without affecting 7. Ernie files suit against David and Jason. 15 days after service of summons, David is
them. TRUE unable to file an answer. Jason files his answer. What may ensue?
a. David can be declared in default by the court
Choose the best answer. (15 pts) b. David may file a motion for extension to file his answer
1. A complaint was filed by X against Y. If X subsequently amends his complaint, within how c. AFTER PROPERLY DECLARING DAVID IN DEFAULT, THE COURT SHALL
many days should Y file his answer? TRY THE CASE AGAINST JASON AND RENDER JUDGMENT UPON
a. 15 days THE EVIDENCE PRESENTED.
b. 10 days d. Neither a, b, or c
c. A AND B
d. None of the above 8. In action against a public officer who dies while the same is pending, the action is:
a. Continued against the successor upon his assumption to the office
2. May a court adjudge a defendant liable to a plaintiff for more than what is specifically b. Continued against the successor upon his assent to his being substituted in
prayed for in the complaint? place of his predecessor
a. Yes, if the facts warrant and there is a general prayer for relief c. Continued against the successor upon order of the court after giving him an
b. YES, AS THE COMPLAINT CAN BE AMENDED TO CONFORM TO THE opportunity to be heard
EVIDENCE d. A AND B
c. Yes, if presentation of evidence on the matter is allowed
d. All of the above 9. X, a resident of La Trinidad, Benguet received a subpoena to testify to testify in a case
between Brad and Tom that is to be filed before the Baguio Regional Trial Court. X is not bound to
3. Johnnie files a case against Brian to enforce the terms of a contract that requires the comply with the subpoena under the following ground/s:
latter to complete construction of a house for the former. In his answer, Brian pleads incomplete a. His viatory right
payment and demands payment of an alleged balance of PHP 1,000,000.00. Brian is interposing: b. No notice was given by Brad to Tom regarding the application for issuance of a
a. A COMPULSORY COUNTERCLAIM subpoena
b. a permissive counterclaim c. Witness fees for his one day appearance was not tendered when the subpoena
c. a negative defense was served
d. an affirmative defense d. NEITHER A, B, OR C
 DEFINE OR ENUMERATE
10. Robert filed suit against Richard for damages arising from the failure of the latter to
complete deliveries of goods contracted for. In the complaint of Robert, he failed to attach a copy 1. What are the requisites for the valid exercise of jurisdiction? (5 pts)
of the pertinent contract. Richard may:
a. File a motion for a bill of particulars A. It must have jurisdiction over the persons of the parties. It is required over the plaintiff
b. File a motion to dismiss for failure to state a cause of action upon his filing of a complaint. It is acquired over the defendant by his voluntary
c. FILE A MOTION FOR INSPECTION OR PRODUCTION OF THE SUBJECT appearance before the court or the employment of the coercive power of legal process.
DOCUMENT B. It must have jurisdiction over the subject matter in controversy. Jurisdiction over the
d. Neither a, b, or c subject matter of the complaint as determined by the allegations in the complaint and the
11. May a court adjudge a defendant liable to a plaintiff for more than what is specifically law in force at the time of the commencement of the action
prayed for in the complaint?
a. Yes, if the facts warrant and there is a general prayer for relief 2. Define a cause of action. (5 pts)
b. YES, AS THE COMPLAINT CAN BE AMENDED TO CONFORM TO THE
EVIDENCE Cause of action is the act or omission by which a party violates a right of another.
c. Yes, if presentation of evidence on the matter is allowed
d. All of the above 3. Distinguish between jurisdiction and venue. (10 pts) (same in # 38)

12. Johnnie files a case against Brian to enforce the terms of a contract that requires the 4. What are the parts of a pleading? (5 pts) (same in # 33)
latter to complete construction of a house for the former. In his answer, Brian pleads incomplete
payment and demands payment of an alleged balance of PHP 1,000,000.00. Brian is interposing: 5. When can a deposition of a person used in lieu of testimony in open court? (5 pts)
a. A COMPULSORY COUNTERCLAIM (for finals)
b. a permissive counterclaim
c. a negative defense 6. What are the parts of the body of a pleading? (5 pts)
d. an affirmative defense
13. P files an action against D for recovery of possession of real property. In his answer, D Under Rule 7, Section 2 of the Rules of Court, the parts of the body of a
states that he was occupying the property as the tenant of A. A is: pleading are:
a. a party in interest Designation
b. a third party defendant The allegations of the partys claims or defenses
c. an indispensable party The relief prayed for, and
d. A NECESSARY PARTY The date of the pleading
14. During a meeting, A and B notifies E of their intent to file an action for breach of contract
against him. They all agree that the suit can only be filed in the RTC of Baguio City. A is a 7. What is a verification? What is a certification? When are they required? (5 pts)
resident of Burgos, La Union, B is a resident of Sison, Pangasinan, and E is a resident of Tarlac
City. The proper venue for the suit is? A verification is an affidavit that the affiant has read the pleading and that
a. Baguio City the allegations therein are true and correct of his personal knowledge and/or is
b. BURGOS, LA UNION OR SISON, PANGASINAN based on authentic records.
c. Burgos, La Union or Tarlac City only A certification in relation to forum shopping is an affidavit under oath by the
d. Baguio City or Tarlac City plaintiff of principal party which is annexed to the complaint or other initiatory
pleading asserting a claim for relief:
15. A files an action against B. B fails to file an answer within the reglamentary period. (1) That he has not therefore commenced any action or filed any claim
Subsequently, the court issues an order directing A to present his evidence before the clerk of involving the same issues in any COURT, TRIBUNAL OR QUASI-JUDICIAL
court in support of his allegations. The action of the court is: AGENCY, AND to the best of his knowledge, no such other claim or action is
a. Proper, as B is now in default pending therein (2) If there is such other pending action or claim, a complete
b. Proper, as the court is allowed to require presentation of evidence in lieu of statement of the present status thereof (3) That if he should thereafter learn
rendering judgment that the same or similar action has been filed or is pending, he shall report
c. a and b that fact within 5 days therefrom to the court wherein his complaint / initiatory
d. NEITHER A,B, OR C pleading has been filed.
When are they required?
Verification is required in complaints, initiatory pleadings and in some responsive
pleadings.
Certification is required only in complaints or initiatory pleadings.

8. What is an omnibus motion? What are the exceptions to the omnibus motion rule? (5
pts)
Ombinus Motion requires that all ground for a motion to dismiss and all defenses
that may be raised must be included in a pleading. All other grounds and defenses
not pleaded shall be considered waived. In short, Omnibus Motion requires that all
objections then available be included otherwise they are waived.
The following grounds are the exceptions:
1. Lack of Jurisdiction
2. Litis pendencia - pendency of action
3. Res Judicata or Statue of Limitations barred by prior judgment
9. State the ground for motion to dismiss that will bar a subsequent filing of the same case?
(5 pts)
A Motion to dismiss predicated on this ground, which was eventually granted,
shall bar a subsequent filing of the same case.
1. The claim / demand has been paid, waived abandoned or otherwise
extinguished Statute of Limitations or Prescription
2. Unenforceable under the Statue of Fraud or non-compliance with the
standards or forms required in the execution of a contract.
3. Barred by prior judgment or statute of limitations
10. What can a defendant do against a complaint that fails to include an indispensable
party? Explain fully. (5 pts)
11. When can there be judgment without trial? Does it apply absolutely? (10 pts)
12. When can there be trial by commissioner? (10pts) (for finals)
Parties agree in writing and the commissioner may either be agreed upon or
appointed by the Court
When parties do not consent, on courts own motion or upon application of either
party, if may be directed in the following:
o Trial of an issue of fact requires examination of a long account
o The taking of an account is necessary for the information of the court
before judgment or for carrying judgment / or order into effect
o A question of fact, other than upon the pleadings arises upon motion or
otherwise, in any stage of the case, or for carrying a judgment or order
into effect.
13. What are the main distinctions between Judgment on the Pleadings and Summary
Judgment? (10 pts)
A Judgment on the Pleadings is available when there is no genuine issue as
answer fails to tender an issue or otherwise admits material allegations, while
Summary Judgment is available when there is an apparent issue but is a sham,
fictitious or false
A Judgment on the Pleadings is based exclusively on the pleadings (complaint /
answer), while Summary Judgment is based not only on pleadings but also on
affidavits, depositions and admissions, showing that except as to damages there
is no genuine issue
A Judgment on the Pleadings can be filed only after an answer has been filed,
while in Summary Judgment, there may or may not be an answer
A Judgment on the Pleadings can only be had by the plaintiff, while in Summary
Judgment, either plaintiff or defendant may move for it
A motion for Judgment on the Pleadings is required to be served on adverse party
at least 3 days prior to the hearing, while a motion for Summary Judgment
requires service at least 10 days prior to the hearing
14. When is a witness not bound by a subpoena? What are the consequences of
disobedience to a subpoena? (10 pts) (for finals)
15. Which of the modes of discovery require prior leave of court? Which do not
require prior leave of court? (10 pts) (for finals)
16. When is a civil action considered as having been commenced? (3pts) Upon what should
it be based? (2pts)
An action is commenced upon the filing of the original complaint in court. If an
additional defendant is impleaded in a later pleading it is commenced on the
date of the filing of the later pleading IRRESPECTIVE OF WHETHER THE MOTION
FOR ITS ADMISSION, IF NECESSARY, IS DENIED BY THE COURT.
Note though that FILING IS DEEMED DONE ONLY UPON PAYMENT OF THE
DOCKET FEE REGARDLESS OF ACTUAL DATE OF THE FILING OF THE
COMPLAINT (MAGASPI V. RAMOLETE 115 S 193)
EXCEPT if the plaintiff is authorized to litigate as a pauper litigant he is exempt
from filing fees.
Note that the commencement of the action interrupts the period of prescription as
to the parties to the action
17. What are the requisites of a class suit? (5pts) (same in # 32)
18. How may a defendant set up a counterclaim that already exists at the time he files his
answer? (5 pts)
19 What is the effect of the death of the defendant on a contractual money claim? (5pts)
If the action is for the recovery of money that arises from a CONTRACT, express or
implied, and the defendant dies BEFORE ENTRY OF A FINAL JUDGMENT, the
RULE is it will not be dismissed but shall be allowed to continue until entry of
judgment, a favorable judgment obtained shall be enforced in the manner
provided by the rules for prosecuting claims against the ESTATE OF A DECEASED
PERSON.
RULES TO BE OBSERVED IN CASE OF DEATH OF OBLIGOR are: (a) If he dies
before the action is filed, a money claim must be filed in the testate or intestate
proceedings (b) if he dies during the pendency of an action, the action continues
 until entry of judgment, and the judgment claim is then filed with the testate or
intestate proceedings. It must be noted that a money claim judgment need not be
proven because it is conclusive. NOTE FURTHER, that if property has been levied
upon before death. It can disposed of in the manner provided by the rules on
execution of judgments because it has already been segregated from estate. If
there is a deficiency, a money claim can be filed subsequently.
20. May a party bring suit against multiple parties when he can only recover against one? (5
pts)
Yes. A party can bring a suit against multiple parties when he can only recover
against one. If the plaintiff is uncertain as to the liability of the multiple parties he
may joined the multiple parties as defendant. This may apply also in the case of
single or indivisible contract.
21. Can summons be effected by sending a fax to the defendant? (5 pts) When can
summons be effected by publication? (5 pts)
No summons cannot be effected by sending a fax to the defendant. Under the
Rules of court Rule 16; Section 6 states that whenever practicable, the summons
shall be serve by handing a copy thereof to the defendant in person, or if he
refuses to receive and signed for it by tendering it to him.
Summons can be effected by publication with leave of court, by filling a motion in
writing supported by affidavit of the plaintiff or some person in his behalf setting
forth the ground that allows resort to it.
The grounds that allow service of summons by publication are the following;
a. Identity of the defendant is unknown and cannot be ascertained by diligent
inquiry.
b. Defendant does not reside and is not found in the Philippines but the suit
can be maintained against him because it is in REM or QUASI IN REM.
c. Defendant is a Philippine resident but is temporarily out of the country.
22. Explain the two dismissal rule. (5 pts) State the grounds for the dismissal by the court
motu propio or upon motion of an action? (5 pts)
The Two Dismissal Rule states that, A plaintiff may cause the dismissal of his
complaint by filing of a notice of dismissal at anytime before service of an answer
or motion for summary judgment and once filed, the court shall issue an
order confirming the dismissal, which is without prejudice, unless stated
otherwise. However, such dismissal will operate as adjudication on the merits
when filed by a plaintiff who has once dismissed in a competent court, his action
based on or including the same claim.
23. Distinguish between a necessary party and an indispensable party. (5 pts) How can a
plaintiff sue when he is uncertain as to who should be sued as a defendant? (5 pts) How can a
plaintiff sue if the identity of the defendant is unknown? (5 pts)
1. INDISPENSABLE PARTY is a party without whom no final determination can be
had of an action. They are those with such an interest in the controversy that a
final decree would necessarily affect their rights, so that the courts cannot
proceed without their presence. Without the presence of indispensable parties to
the suit, the judgment of the court cannot attain real finality.
2. NECESSARY PARTY is a party who is not indispensable but who ought to be
joined as a party if complete relief is to be accorded as to those already parties or
for a complete determination or settlement of the claim subject of the action. A
necessary partys presence is necessary to adjudicate the whole controversy but
whose interests are so far separable that a final decree can be made in their
absence without affecting them. A necessary party is to be impleaded as a
party for complete determination of an action, while an indispensable party is
impleaded for a final determination of an action.
If the plaintiff is uncertain as to who should be sued as defendant in a case, he
may join any or all of the persons that he may have relief as defendants in an
alternative. However, his right to relief against one must be consistent with a right
of relief against the other or without prejudice to all the defendants .
If the identity of the defendant is unknown by the plaintiff, he may institute the
case writing therein as unknown owner, heir, devisee, or any by such other
designation as the case may require until the identity or name is discovered. The
pleading however must be amended accordingly.
24. Two identical civil actions are pending between the same parties, and one case is filed
earlier than the other. Which of the two actions should be dismissed on the ground of litis
pendentia? Discuss fully. (10 pts)
Priority in time rule first action filed should be given priority therefore the
second action should be dismissed on the ground of litis pendentia.
More appropriate action rule the more appropriate action should be , the other
one should be dismissed on the ground of litis pendentia.
Interest of justice rule that action which will best serve interest of justice should
be taken the other one should be dismissed.
25. Distinguish between an amended pleading and a supplemental pleading. (4 pts)
Distinguish between service and filing. (3 pts) What is a bill of particulars? (3 pts)
AMENDED PLEADING VS. SUPPLEMENTAL PLEADING
1. An amended pleading is filed either as a matter of right or with leave while a
supplemental pleading is always with leave
2. An amended pleading alleges matters concurring before the filing of the original
pleading, while a supplemental pleading alleges matters occurring after the filing
of the original pleading.
3. An amended pleading supersedes the original pleading while a supplemental
pleading allows the original pleading to stand.
FILING VS. SERVICE
Filing is the act of presenting the pleading or other paper to the Clerk of Court while
service is the act of providing a party with a copy of the pleading or paper.
BILL OF PARTICULARS
A bill of particulars is a definitive statement of any matter which is not covered with
sufficient definiteness or particularity to enable him to properly prepare his responsive
pleading. determined by the assessed value of the real property)

26. What are the requisites for the application of the doctrine of res judicata? (5 pts) When 31. When is a civil action considered as having been commenced? Upon what should it be
can a court dismiss an action without any motion? (5 pts) based? (5pts) (same in # 16)

REQUISITES OF RES JUDICATA 32. What are the requisites of a class suit? (5pts) What is the rule on transfer of interest?
a. former judgment must be final (5pts)
b. rendered by a court having jurisdiction over the subject matter and the properties
c. it must be a judgment or order on the merits The requisites of a class suit are:
d. there must be between 1st/ 2nd action, identity of parties/subject matter/ causes of a. the subject matter of the controversy must be of common or general interest to
action many persons;
b. the persons are so numerous that it is impracticable to join all as parties;
DISMISSAL WITHOUT A MOTION c. the parties actually before the court are sufficiently numerous and
the court may dismiss the complaint without a motion in a case where the plaintiff causes representative as to fully protect the interests of all concerned; and
the dismissal of his own complaint. plaintiff may cause the dismissal of his complaint by d. the representative sue or defend for the benefit of all. (rule 3, sec. 12)
filing of notice of dismissal at anytime before service of an answer or motion for summary
judgment. once filed, the court shall issue an order confirming the dismissal, which is In case of transfer of interest, the action may be continued by or agains the
without prejudice, unless stated otherwise. original party, unless the court upon motion directs the person to whom the
interest is transferred to be substituted in the action or joined with the
27. What are the effects of the death of a defendant during the pendency of an action? (5 original party. (rule 3, sec. 19)
pts.) What are the effects of a transfer pendente lite? (5 pts.)
33. What are the essential parts of a pleading? (5pts) What are the essential parts of a
if the action is for the recovery of money that arises from a contract, express or motion? (5pts)
implied, and the defendant dies before entry of a final judgment, the rule is it will
not be dismissed but shall be allowed to continue until final entry of judgment, a The essential parts of a pleading are:
favorable judgment obtained shall be enforced in the manner provided by the a. caption;
rules for prosecuting claims against the estate of a deceased person. if the claim b. body;
does not arise from contract the rule is it continues to final judgment and may be c. signature;
executed on as against the executor or administrator.. d. address;
e. verification, and certification against forum shopping.
28. Is an order dismissing an action with prejudice appealable? Explain fully. (5 pts)
The essential parts of a motion are:
Where the defendant is barred from refiling the action, the remedy under the a. caption;
circumstances is to file an appeal because by the clear language of Sec. 5, Rule 16 b. designation;
the dismissal is subject to the right of appeal. Since under this provision, the c. signature; and
dismissal bars the refiling of the same action or claim, such dismissal is one with d. other matters of form. (rule 15, sec. 10)
prejudice. This kind of dismissal is appealable as a consequence of Sec. 1(g) of
Rule 41. Under this provision, it is an order dismissing an action without prejudice 34. Explain the following: (a) omnibus motion rule (5pts) (b) two-dismissal rule (5pts) (c)
which is not appealable. (source: RIANO) joinder of parties (5pts) (d) bill of particulars (5pts)

29. What may properly be the subject of a petition for review on certiorari? Is review a
matter of right? Explain fully? (5 pts) (for finals)
30. Distinguish between the nature of the action test and the primary objective test. (5
pts)
NATURE OF THE ACTION TEST (Determination as to whether or not the action is
capable of pecuniary estimation. If not capable, jurisdiction is with the RTC. If
capable-jurisdiction is determined by the amount claimed/value of the personal
property) BUT this test must yield to the PRIMARY OBJECTIVE TEST (where
notwithstanding the fact that the action appears to be incapable of pecuniary
estimation, if the primary objective is to recover real property, jurisdiction will be
OMNIBUS MOTION RULE
o Ominibus Motion rule is one which attacks a pleading. As such, when it is
filed, it shall include all objections then available and all objections not so
included shall be deemed waived
TWO-DISMISSAL RULE
o Two dismissal rule refers to a rule that a notice of voluntary dismissal
operates as an adjudication on the merits when it is filed by a plaintiff
who has already dismissed twice.
JOINDER OF PARTIES
o Refers to the act of uniting several parties in a single suit either as
 plaintiffs or defendants. Party joining the cause of action shall comply
with the rule on joinder of parties, which provides that; All person in
whom or against whom any right to relief is respect to or arising out of
the same transaction is alleged to exist, whether jointly, severally or in
the alternative, may except as otherwise provided in these rules, join as
plaintiffs or be joined as defendants in one complaint, where any question
of law of fact common to all such plaintiffs or to all such defendants may
arise in the action
BILL OF PARTICULARS
o Is a definitive statement of any matter which is not covered with sufficient
definiteness or particularity to enable him to properly prepare his
responsive pleading.
35.. What are the requisites of a valid motion? What motions are not required to be in
writing? (10 pts)
REQUISITES OF A VALID MOTION
a.) It shall be in writing.
b.) It must state the relief sought to be obtained and the grounds on which it is
based, and if required by the rules or necessary to prove facts alleged
therein, it shall be supported by affidavits or other papers.
c.) It shall be set for hearing by the applicant except when the motion can be acted
upon by the court without prejudicing the right of the adverse party.
d.) It must contain a notice of hearing addressed to all parties concerned,
specifying the time, date of the hearing which must not be later than 10 days after
filing thereof.
e.) It must be served, together with the notice of hearing on the adverse party at
least 3 days before the date of hearing UNLESS THE COURT FOR GOOD CAUSE
SETS THE HEARING AS EARLIER.
f.) There must be proof of service of every written motion set for the hearing
otherwise it shall not be acted upon.
WHAT MOTIONS ARE NOT REQUIRED TO BE IN WRITING
o Motions which do not require to be in writing are those motions made in
open court or in the course of the hearing or trial.
36. What is meant by the Prior or Contemporaneous Rule? (3 pts) What are the effects of a
transfer pendente lite? (3 pts) When is a court allowed to award more than what is prayed for in
the original complaint? (4 pts)
Notice shall be preceeded by or contemporaneously accompanied by service of
summons, together with affidavit and bond (PRIOR OR CONTEMPORANEOUS
RULE)
EFFECTS:
o 1. The action may be continued by or against the original party, unless the
court upon motion directs the person to whom interest is transferred to
be substituted in the action or joined with the original party.
o 2. The rule refers to a transfer pendente lite. The transferee pendente lite
shall stand exactly in the shoes of the transferor. Consequently, any
judgment will be binding upon him.
o 3. A transferee pendent elite does not have to be included or impleaded
by name in order to be bound by the judgment because the action or suit
may be continued for or against the original party or the transferor and
still binding on the transferee.
o 4. In a case on appeal where the transferee pendente lite did not appeal,
he nevertheless was benefited by the appeal of the transferor pendent
elite.
Substantial amendments are made when it is necessary to conform to the
evidence. This occurs when issues are tried with the express or implied consent
of parties. If such, they are treated in all respects as if they have been raised in the
pleadings, thus paving the way for an amendment of the pleadings to conform to
the evidence
**General Rule:Sec 3, Rule 9 (d) Extent of relief to be awarded. - A judgment rendered
against a party in default shall not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages.
37. Enumerate: (a) 3 grounds for a motion to dismiss (6 pts) (b) 2 grounds for the issuance
of a writ of preliminary attachment (4 pts) (c) grounds for a petition to annul
judgment (4 pts) (d) requisites for the issuance of a writ of preliminary injunction (4
pts)
Grounds for Motion to Dismiss:
1. The court has no jurisdiction over the person of the defending party
2. The court has not jurisdiction over the subject matter of the claims
3. Venue is improperly laid
GROUNDS FOR ISSUANCE FOR WRIT OF PRELIMINARY ATTACHMENT
1. Action to recover possession of property unjustly or fraudulently taken,
detained or converted when the property, or any part thereof, has been concealed,
removed or disposed of to prevent its being found or taken by the applicant or
authorized person.
2. Action against a party guilty of fraud in contracting the debt or incurring the
obligation upon which the action is brought or in the performance thereof.
GROUNDS FOR PETITION TO ANNUL JUDGMENT
1. Extrinsic Fraud but only when it was not availed of or could have been availed
of in a motion for new trial or petition for relief or
2. Lack of Jurisdiction
REQUISITES FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION
1. The applicant is entitled to the relief demanded, and the whole or part of the
relief consists in restraining the commission / continuance of the act/s
complained of, or in requiring the performance of an act/s, for a limited period or
perpetually.
2. The commission / continuance / non performance of the act/s during litigation
will probably work injustice to the applicant, or
3. That a party, court, agency or a person is doing, threatening, or is attempting to
do or is procuring or suffering to be done, some act/s in violation of the rights of
the applicant respecting the subject of the action and tending to render judgment
ineffectual.
38. Distinguish between: (a) jurisdiction and venue? (5 pts) (b) order of partition and
judgment of partition (5 pts) (c) Bonus (5 pts)
A. Jurisdiction v. Venue
1. Venue is the place where action is commenced and tried, jurisdiction is the
authority of a court to hear and decide the action.
2. Venue may be waived, jurisdiction over the subject matter cannot be waived, but
that over the person can be waived.
3. Venue may be the subject of written agreement, jurisdiction cannot be subject
of a written agreement.
4. A court cannot motu-proprio dismiss on improper venue, while when there is no
jurisdiction, a court can motu-proprio dismiss the case.
39. If a non-party wishes to intervene in a pending action, what are the requisites? (10 pts)
1. The non-party who wishes to intervene should have a:
a. legal interest in the matter in litigation;
b. legal interest in the success of either of the parties
c. legal interest against both or
d. is so situated to be adversely affected by a distribution or other
disposition of property in the custody of the court or an officer thereof.
2. By filing of a motion for leave of court to intervene, attaching thereto a copy of
the pleading in intervention, which is then served on the original parties at any
time before rendition of judgment by the trial court.
3. If granted, a complaint in intervention is to be replied to within 15 days from
notice of the order admitting the same unless a different period is fixed by the
court.
40. Outline the appeals process to the Supreme Court of a case decided by the MTC,
include the periods for taking action. (10 pts)
41. Up to when can jurisdiction over the subject matter and jurisdiction over the person of the
defendant be questioned? (5pts)
Jurisdiction over the subject matter and person of the defendant can be
questioned at any stage of the proceedings even at first time appeal. Except when
laches or estoppel set in.
PROBLEMS
1. Jose is the owner of a parcel of land with an area of 1 hectare. Said parcel of land is
occupied by 100 people, each occupying a distinct portion of the property. Jose subsequently filed
1 suit against all 100 occupants. Can the joinder of the 100 defendants be deemed proper? (5
pts)
Yes, provided Jose can show that there is a question of fact or question of law
common to all of them.
2. A sold a parcel of land to B in 2000 and in 2001, B sold the same parcel of land to C. In
2003, A sued B in the RTC of Baguio City to rescind the sale of the parcel of land to B. In 2005,
final judgment was rendered in favor of A, declaring the sale rescinded and of no force and effect.
In 2006, C now sues A and B for specific performance and for recovery of possession of the
parcel of land. May A file a motion to dismiss the action on the basis of the decision in his favor
rescinding the sale to B? Will it prosper? (10 pts)
3. X sued Y for the delivery of computers and accessories valued at PHP 500,000.00. The
action is filed in the RTC of Baguio City. X is a resident of Manila, while Y is a resident of Baguio
City. Is venue properly laid in Baguio City? (5pts) Will your answer be the same notwithstanding a
written stipulation between the parties providing that venue should be in Manila? (5pts)
Yes, venue is properly laid in Baguio City. The action in the case at bar is one
which is personal, under Sec. 2 of Rule 4, personal actions may be commenced and tried
where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any
of the principal defendants resides, or in the case of a non-resident defendant where he
may be found, at the election of the plaintiff. X, the plaintiff resides in Manila, and Y the
defendant resides in Baguio City, X elected the resident of the defendant as venue for his
action, which is in accordance with the Rules.
No, venue would be improperly laid in Baguio City if X and Y had a
written stipulation providing that the venue should be in Manila, such stipulation shall be
binding and the rule on venue shall not apply where the parties have validly agreed in
writing before the filing of the action on the exclusive venue thereof (Sec.4 Rule 4).
4. An action was filed by Juan against ABC Corporation for a sum of money. Summons was
served on the secretary of the president of the corporation. Unfortunately, upon receipt by the
president, he failed to endorse the matter to its legal department for appropriate action. No
answer having been filed, ABC Corporation was declared in default upon motion of Juan. Upon
notice of its having been declared in default, what remedy should be taken by the corporation?
Discuss fully? (10 pts)
The available remedies of ABC Corporation who is declared in default are as follows:
If no judgment has been rendered
1. MOTION TO SET ASIDE ORDER OF DEFAULT, to be made under oath and filed at
any time after notice of declaration in default and before judgment. ABC Corporation must
also show by an affidavit of merit that failure to file an answer was due to fraud, accident,
mistake, or excusable negligence (FAME) and that they have a meritorious defense.
If judgment has been rendered, but before its finality
1. MOTION FOR NEW TRIAL on the ground of FAME.
2. APPEAL THR JUDGMENT BY DEFAULT within 15 days from notice of judgment.
If judgment has become final
1. PETITION FOR RELIEF FROM JUDGMENT based in FAME provided that no appeal has
been taken within 60 days from notice and 6 months from entry of judgment.
2. ACTION TO ANNUL JUDGMENT based on extrinsic fraud within 4 years from discovery
of the fraud.
3. CERTIORARI if there was an improper declaration of default or if the motion to set aside
was denied and is tainted with grave abuse of discretion. To be filed 69 days from notice
or judgment order resolution or 60 days from denial of motion for reconsideration.
5. A sued B to compel delivery of a motor vehicle. In his suit, A based his claim on a deed
of absolute sale executed by B in his favor. In his unverified answer, B maintains that he has no
such obligation to deliver a motor vehicle to A. During the trial, is B allowed to prove that he had
returned the amount paid by A? Explain. (10 pts)
Yes, during the trial B is allowed to prove that he had returned the amount paid by
A, provided that such issue is stated and raised in the pleadings, or if such issue is not
raised by the pleadings, but A expressly or impliedly consented for B to prove such, then it
shall be treated in all respects as if they had been raised in the pleadings.
The fact that the answer of B is unverified does not affect the sufficiency of the
pleading because the action is not among those actions that require verification. If,
however, such action falls among those that require verification, then the answer of B shall
have no legal effect, and he shall not be allowed to prove that he had returned the amount
paid by A even if such issue is stated and raised in his answer.
6. Gerry filed a single suit in the Regional Trial Court against Rosel, Rowena, Mary Ann,
and Jojo to recover from each of them different pieces of jewelry worth a total of P 1,000,000.00.
The pieces of jewelry that he had delivered to them were intended for resale to interested buyers.
The pieces of jewelry were delivered to each of the defendants on successive dates at SM City
Baguio. Is there proper joinder of causes of action? (10 pts.)
No, there is no proper joinder of causes of action.
To have a joinder of causes of action, the rule on joinder of parties should be
complied with. One rule on joinder of parties is the right to relief against the defendants or
in favor of the plaintiff must arise out of the same transaction or occurrence.
Gerry cannot join the defendants together since the right to relief did not arise
from the same incident the jewelry being delivered to them on different dates.
7. An action for the collection of a sum of money was instituted against Juan. Juan is a
Filipino but permanently residing in the United States. Yearly, Juan comes to the Philippines to
visit his relatives during the fiesta in his hometown in Bulacan. How may summons in this action
be served? (10 pts.)
The summons may be served by:
a) Personal
b) Any other mode the court deems sufficient ( registered mail or other modes thatcan
generate a report or proof of service)
This is just how I understand the problem, I cannot guaranty it.I did not include publication
because service by publication may be availed when the defendant is a non-resident defendant
who is not in the Philippines and the action is in rem or quasi in rem. Here, the action is in
personam. I did not also include substituted service because he has no residence/office here in
the Philippines.
8. . A complaint for the payment of the amount of PHP 500,000 as evidenced by a
promissory note was resolved by the MTC in favor of the plaintiff. The defendant wants to appeal
the judgment to the RTC. How should the defendant appeal the judgment? (3 pts) How should
the RTC resolve the appeal? (4 pts) Assuming the complaint was dismissed without trial. Can the
plaintiff appeal the dismissal to the RTC? (4 pts) How should the RTC resolve the appeal? (4 pts)
Nos. 8 and 9 are on Appeal
9. From the judgment of the MTC, the defendant appealed to the RTC. The RTC rendered
a decision in due time. Not satisfied with the decision of the RTC, defendant filed a notice of
appeal with the RTC in due time. In his notice of appeal, he stated that he was appealing the
decision of the RTC to the Court of Appeals on the ground that the same is contrary to law and
the evidence. Should the appeal be given due course? (5 pts)
Nos. 8 and 9 are on Appeal
10. A judgment of the RTC was appealed to the Court of Appeals. Upon perfection of the
appeal, is the RTC completely divested of jurisdiction over the case? Explain fully. (10 pts)
Note: Question is not covered by Rule 1 to 22.
11. A is indebted to B. The indebtedness is evidenced by a loan agreement, where C has
affixed his signature as a solidary debtor. A does not pay on the due date. Against whom should B
bring an action? Why? (5 pts)
B can file an action against both A and C because A and C are real parties in
interest-defendant in this case, where they have a correlative obligation, whose act or
omission violates the legal rights of B in not paying the debt which was already due.
12. X filed an action against Y. Two days thereafter, X filed a notice of dismissal before Y
could file his answer. The court confirmed the dismissal in an order received by X three days after
he filed his notice of dismissal. Ten days after receipt of the order confirming the dismissal, X filed
an amended complaint. Must the amended complaint be responded to? Within what period must it
be responded to? (5 pts)
Yes, the amended complaint must be responded to. The amended complaint is in
the nature of an original complaint in a new action since the first action was already
dismissed under Rule 17, Section 1. The notice of dismissal having been confirmed by the
court, the first action is now closed.
In accordance with Rule 11 of the Rules of Court, the period to file a response is
fifteen (15) days after service of summons in relation to the amended complaint if the
case is an ordinary civil action or ten (10) days if it is covered by the Rules on Summary
Procedure.
13. A purchased a car from B for PHP 500,000.00. A gave a down payment of PHP
100,000.00 and signed two promissory notes for PHP 200,000.00 each to cover the balance. The
promissory notes where dated 30 days apart. Both promissory notes were not paid on the
stipulated dates, is B obliged to file a single suit? Discuss fully. (10 pts)
Yes, In an action Ex Contractu or one arising out of or is founded on a contract,
the rules are as follows:(a) In a single or indivisible contract, only one cause of action
arises from a single or several breaches. Example: In a contract of sale of personal
property by installments, the remedies of the unpaid seller is alternative, they are: (1) elect
fulfilment (2) cancel the sale, should the vendees failure to pay cover two or more
installments, and (3) foreclose the mortgage on the thing sold if one has been constituted
should the vendee fail to pay two or more installments. 1(b) If the contract provides for
several obligations, each obligation not performed gives rise to a single cause of action.
But if upon filing of the complaint several obligations have already matured, all of them
shall be integrated into a single cause of action. In relation to the facts, the obligation to
pay was in installment basis. The failure of the purchaser to tender payment on the
stipulated dates gave rise to a cause of action for each delinquency. Since both ofthe
payments became had reached its maturity, it must be integrated into a single cause of
action.
14. P sued D in the RTC of Baguio City. Within the reglamentary period, D filed his answer,
including the affirmative defense that the claim of P is unenforceable under the statute of frauds.
Included in the answer are compulsory and permissive counterclaims. May the case be set by
the court for pre-trial? (5pts) What action may be taken by the court on the affirmative defense?
(5pts)
15. X filed a complaint against Y in the RTC of Baguio City. In his complaint, X joined the
following causes of action: (a) payment of PHP 300,000.00 based on a promissory note dated
January 1, 2003 and which became due on June 30, 2003 (b) payment of PHP 150,000.00
representing damages on account of the negligence of Y in the operation of his motor vehicle (c)
specific performance to compel Y to deliver title to a parcel of land located in La Union. Is there
proper joinder of causes of action? (5pts) If joinder is not proper, may the action be dismissed?
(5pts)
Yes, where causes of action are between same parties but pertain to different
venues or jurisdictions, joinder may be allowed in the RTC provided one of the causes of
action falls within its jurisdiction and venue lies therein.
No,, Upon motion of a party or on the initiative of the court, a misjoined cause of
action may be severed and proceeded with separately
16. X filed a complaint against Y in the RTC of Baguio City. In his complaint, X joined the
following causes of action: (a) payment of PHP 120,000.00 based on a promissory note dated
January 1, 2003 and which became due on June 30, 2003 (b) payment of PHP 150,000.00
representing damages on account of the negligence of Y in the operation of his motor vehicle (c)
specific performance to compel Y to deliver title to a parcel of land located in Pangasinan. Is there
proper joinder of causes of action? (5pts) If joinder is not proper, may the action be dismissed?
(5pts)
-There is proper joinder of causes of actions. X complied with the condition set under sec.
5(c) of Rule 2.The specific performance of delivering the title of a parcel of land to Y is a pe
rsonal action thus within thejurisdiction of RTC Baguio where X filed Baguio joined causes
of action.
-No. A misjoined cause of action is not a ground for dismissal of an action but may only be
severed andproceeded with separately on motion of a party or on the initiative of the court.
(Sec.6, Rule 2)
17. In an action for recovery of real property, plaintiff also claims moral damages and
attorneys fees. After attempts at personal service failed because the defendant was always at the
neighborhood billiard hall, substituted service was resorted to by the process server. The
defendant subsequently saw the summons, together with a copy of the complaint on July 1, 2003.
On July 17, 2003, plaintiff moved to declare defendant in default. Upon motion by the plaintiff,
may the court declare the defendant in default? (5pts) Upon a declaration in default, what may the
court do? (5 pts)
No, the court may not declare the defendant in default. There is no valid service
made o the defendant, thus the court has not acquired jurisdiction over his person.
The court can proceed to render judgment granting the claimant such relief as his
pleading may warrant, unless the court in its discretion requires the claimant to submit the
evidence. (Rule 9, Sec. 3.)
18. Jose is the owner of a house and lot located at Aurora Hill, Baguio City. The said real
property is the subject of a real estate mortgage executed in favor of XYZ Bank. On June 1, 2004,
Jose sold the same property to Juan. On October 31, 2004, Jose failed to pay his obligation to
XYZ Bank. On November 15, 2004, Juan sold the same property to Pedro. On December 31,
2004, XYZ Bank filed an action against Jose seeking to judicially foreclose on the latters property.
On January 10, 2005, XYZ Bank was taken over by ABC Bank. Upon notice of the action, what
are the options of Juan and Pedro? (5 pts) What is the effect of the take over by ABC Bank on the
action? (5 pts)
The options of Juan and Pedro upon notice of the action is to intervene in the case
proceedings filed by XYZ Banks against Jose. Juan and Jose may intervene by filling a
motion for leave of court to intervene, attaching thereto a copy of the pleading in
intervention, which is they serve on the original parties.
The effects of the takeover by the ABc Bank steps into the shows of the XYZ Bank
hence there is a transfer of interest pending litigation any judgment against XYZ Bank will
be binding to the ABc Bank The action may be continued by or against the original party,
unless the court upon motion directs the person to whom interest is transferred to be
substituted in the action.
19. In an action by a bank against Juan and Jose to collect a promissory note signed by both
of them, Juan filed a third party complaint against Jose to compel the latter to render an account
of the proceeds of a real estate transaction between them. The purpose of Juan in initiating the
third party complaint is to collect the share due him and use it to pay his share of the debt due the
bank. May Juan maintain his action against Jose? (5 pts) If you were counsel for Juan, what
would be your alternative remedy, if any? (5 pts)
No, A third-party complaint may not be maintained by Juan against Jose. A third-
party complaint is a claim that a defending party may, with leave of court, file against a
person not a party to the action, called the third-party defendant for contribution,
indemnity and subrogation or any other relief in respect of his opponents claim (Rule 6,
Sec. 11). In the case at bar, Jose is actually a party to the complaint, hence a third-
party compliant is improper.
If I were the counsel of Juan, an alternative remedy would be a cross claimwhich
is a claim by one party against a co-party arising out of the transaction or occurrencethat
is the subject matter either of the original action or of a counter claim therein (Rule 6,Sec.
8).And since the present action is an action involving the same transaction and to
avoidmultiplicity of suits, Juan should file a cross claim against Jose. (Hehe naguguluhan
ako kasi,actually,Juan can also institute a collection suit against Jose in a separate civil action
kasokasi magiging problem ay multiplicity of suits.hehe..basta hehe)
20. Boy, a resident of Baguio, sold a quantity of vegetables to Girl, a resident of Manila. The
contract provided that payment was to be made by Girl upon delivery. Boy delivered the
vegetables to XYZ Trucking, who bound itself to deliver the vegetables to Girl. Girl did not pay.
When Boy made a demand for payment, Girl claims no delivery was made. Upon inquiry with XYZ
Trucking, it claims delivery was made. Assuming Boy is minded to sue, how should he now
proceed under the circumstances? (5 pts)
21. Ann, Beth and Carol executed a promissory note for P 250,000.00 to Peter dated
January 15, 2005 and payable within 120 days from date at Peters residence in Manila. Dan and
Edwin, also executed a promissory note in favor of Peter for P 300,000.00 also payable at Peters
residence in Manila within 90 days from date. Upon default of Ann, Beth, Carol, Dan and Edwin
on their respective notes, may P sue all of them in a single action on both promissory notes? (5
pts)
No. where a party sues two or more defendants, it is necessary for the causes of
action to arise out of the same transaction or series of transactions and that there should
be a question of law or fact common to them. The debt of Anna, Beth and Carol is a
transaction different from the debt of Dan and Edwin. Hence, they cannot be sued under a
single action.
22. X sold a parcel of land to D in 2000 and in 2001 D sold this parcel of land to P. In 2003, X
sued D in the RTC to rescind the sale of the land to D. In 2005, judgment was rendered in the
action declaring the sale of the land from X to D rescinded and without effect. P now sues D and
X for specific performance and for recovery of the possession of the parcel of land. X moves to
dismiss on the ground that the action is already barred by the 2005 judgment in the action of X
against D rescinding the sale from X to D. Resolve the motion to dismiss. (5 pts)
Motion to dismiss should be granted on the ground of res judicata. It complied
with the elements of res judicata.
The 2005 judgment is already final, rendered by court having jurisdiction over the
subject matter and the parties, on the merits. Between the 1st action and the 2nd action,
there is:
1. Identity of parties since both D and P represents the same interest;
2. Identity of subject matter which is the parcel of land; and
3. There is identity of cause of action because when the plaintiff prays that
the contract be rescinded and that defendant was ordered to return
possession to the plaintiff, the ultimate purpose or end of the action is to
recover possession of the real property.
23. After the plaintiff had rested his case, the defendant moved to dismiss the case on
demurrer to the evidence. The Municipal Trial Court granted the motion and dismissed the case.
Plaintiff appealed to the Regional Trial Court. The Regional Trial Court reversed the Municipal
Trial Court and decided the case on the basis of the evidence of the plaintiff. Upon receipt of the
adverse judgment by the Regional Trial Court, defendant contends that the Regional Trial Court
should have remanded the case for trial by the Municipal Trial Court. Is the defendant correct? (5
pts) (for finals)
ans: defendant is not correct. Under rule 33, if the appellate court reversed the
decision of the trial court dismissing the case on demurrer to evidence it will also render
judgment on the basis of the evidence presented by the plaintiff because the
defendant is deemed to have waived his right ot present evidence when he filed the
demurrer to evidence.
24. A property in which Ernie has an interest has been levied upon pursuant to a judgment in
favor of Gigi, where Ramon, Ernies brother is the defendant. To protect his interest in the
property, can Ernie intervene in the action between Gigi and Ramon? (5 pts)
No., Ernie can no longer intervene in the action between Gigi and Ramon. Under
the Rules of Court, the motion to intervene may be filed anytime before rendition of
judgment by the trail court.
In the case at bar, the property in which has an interest has already been levied
upon pursuant to judgment. Since there was already judgment rendered by the trail court,
intervention after and decision can no longer be permitted.
25. Rosel, a Baguio resident, sued Cora, a resident of San Fernando, La Union in the
Regional Trial Court of Dagupan for a sum of money. When the sheriff went to the residence of
Cora, he was informed that Cora was in Baguio City and would return later in the day. The sheriff
subsequently served the summons on Coras daughter, a nursing student then residing in Coras
residence. The sheriff subsequently made a return stating that: substituted service of summons
was availed of and that copy of the summons was given to Coras daughter, a person of suitable
age and discretion, then living at the defendants residence. Cora failed to file her answer.
Subsequently, Rosel filed the appropriate motion to declare Cora in default. May the court validly
act on the motion? (5 pts) Assuming that the court can act on the motion, may Cora be declared
in default? (5pts)
No, the court cannot validly act on the motion because the substituted service of
summons is not valid. Failure to find Cora in their residence on the first and only attempt
to effect service in person does not justify the availment of substituted service. There was
no attempt by the sheriff to faithfully comply with the requirements of service in person on
the defendant. It is only when the defendant cannot be served personally within a
reasonable time that substituted service may be made.
Yes , Sec. 3, Rule 9.
26. Ric, a Filipino overseas contract worker, residing in Amman, Jordan borrowed $5,000.00
from a branch of the Philippine National Bank in Riyadh, Saudi Arabia. As security for the loan,
Ric executed a real estate mortgage over property located in Aurora Hill, Baguio City. When Ric
defaulted in payment, the Philippine National Bank Baguio Branch brought an action to foreclose
before the Baguio City Regional Trial Courts. How may summons be served upon Ric? (5 pts)
Extraterritorial service of summons. Under the Rules, when a defendant does not
reside and is not found in the Philippines, and his property has been attached within the
Philippines, service may, by leave of court, be effected out of the Philippines by personal
service or by publication in a newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the summons and order of the court
shall be sent by registered mail to the last known address of the defendant, or in any other
manner the court may deem sufficient.
27. A decision adjudging Pepe liable to Pilar for a sum of money way mailed by registered
mail to Pepes counsel on record at his given address. However, the mail was returned to the
court with a notation that the addressee has moved out without leaving a forwarding address.
Considering the facts, can Pepe be considered as having been duly served?
Pepe cant be considered as having been duly served. Although the rules provide
that when a party is appeared by counsel, service upon him shall be made thru his
counsel. The exception is when the counsel change address or unknown address, in
which case judgment must be directed to the party.
28. Jack sued Jill for specific performance of a verbal contract to the former a piece of land
valued at PHP 500,000.00. Jill, in her answer, denied having entered into such an agreement and
set up the affirmative defense of unenforceability of the contract under the Statute of Frauds. On
Jills motion, a preliminary hearing was held and thereafter, the court ruled to deny the motion to
dismiss, stating that because of down payment having been made, the contract was taken out of
the scope of the Statute of Frauds. After trial, the court rendered judgment against Jill and ruled
that her inaction in respect to the order denying the motion to dismiss had the legal effect of
making the order binding and conclusive against him. Is the ruling correct?
No, the judgement rendered is improper. Under s6r17 the dismissal of the
complaint which is pleading as affirmative defense shall be without prejudice to t he
prosecution in the same or separate action of a counterclaim pleaded in the answer. The
court should render judgement based on the pleading which set forth.
29. In an action for damages, summons was sent to the defendant by registered mail.
Defendant received a copy of the summons, together with a copy of the complaint on July 1,
2003. On July 17, 2003, plaintiff moved to declare defendant in default. May the court declare the
defendant in default? (5pts)
No, the court shall not declare the defendant in default. I submit the negative view
because under the rules of court the modes of service of summons are the fallowing:
a] service in person to the defendant
b] substituted service
c] service by publication
d] any other means as the court may in its discretion.
In the case at bar, service by registered mail is not a mode of service of summon.
Thus, there is an invalid service of summon which means the court did not acquire
jurisdiction for it to render judgement.
30. X sued Y for the delivery of personal property. The action is filed in the RTC of Baguio
City. X is a resident of Manila, while Y is a resident of Baguio City. Is venue properly laid in Baguio
City? (5pts) When can exclusive venue be stipulated upon? (5pts)
Yes, under Rule 4 Sec.2,personal actions may be commenced and tried where the
plaintiff or any of the principal plaintiff reside or where the defendant or any of the
principal defendant resides.
31. P sued D in the MTC of Baguio City. Within the reglamentary period, D filed his answer,
interposing therein that the claim of P is unenforceable under the statute of frauds as an
affirmative defense. D also interposed a compulsory and permissive counterclaim. What action
may be taken by the court on the affirmative defense? (5pts) May the case be set by the court for
pre-trial? (5pts)
The court may conduct a preliminary hearing as though a motion to dismiss was
filed.
On occasion that it will dismiss the case, it shall be without prejudice to the
prosecution in the same or separate action of a counterclaim pleaded in the answer. (rule
16)
The case cannot be set for pretrial. Under Rule 18, a case is said to be ripe for
pretrial after the last pleading has been served and filed. In the problem, there is yet no last
pleading because the permissive counterclaim which is required by the rules to be
answered is not yet answered.
32. A purchased a lot from B for PHP 1,000,000.00. A gave a down payment of PHP
500,000.00 and signed a promissory note for the balance, payable thirty days after date, and as
security for the note, mortgaged the same lot to B. When the note fell due and A failed to pay, B
commenced suit for the payment of the balance. After securing a favourable judgment, B also
brought another action against A to foreclose on the mortgage. Is the filing by B of the subsequent
suit proper? Discuss fully. (10pts) If instead, A issued two promissory notes for PHP 250,000.00
each for the balance, payable on different dates and both promissory notes were not paid on the
stipulated dates, is B obliged to file a single suit? Discuss fully (10 pts)
NO, subsequent suit filed by B is not proper. Filing of collection suit barred the
foreclosure of the mortgage. When B filed a collection suit, this fact abandons the remedy
of foreclosure of the mortgage constituted over the property as security for the value of
the promissory note which he seeks to recover in the said collection suit. This is because
B already elects to file a suit for collection, not foreclosure, thereby abandoning the
mortgage note as basis for relief, he clearly manifest his lack of desire and interest to go
after the mortgaged property as security for the promissory note.
YES, B is not obliged to file single suit. The law provides that, if upon filingof the
complaint several obligations have already matured, these shall be integrated into a single
cause of action. In the case at hand, bothobligations arising from separate promissory
note are already due since both were not paid on the date of payment as stipulated; as
such B is obliged to file a single suit.
33. Pedro filed a complaint in the Regional Trial Court of Baguio against D for the recovery of
an alleged overpayment for a motor vehicle. Later, but before summons could be served in the
Baguio case, D filed in Manila an action against Pedro for collection of the alleged balance on the
same motor vehicle. Pedro moved to dismiss the Manila case on the ground of litis pendentia. Is
Pedro correct? (10 pts)
YES Pedro is correct. All the elements of litis pendentia are present, hence the
second action should be dismissed, BUT without prejudice to the right of D to file
counterclaim. It must be noted that an action commences upon filing of the complaint and
not upon service of summons.
34. Juan sued Jose for recovery of property. Jose subsequently filed his answer with a
counterclaim against Juan. At the pre-trial, trial was set to commence on January 15, 2004. On
said date, Juan and counsel failed to appear without justifiable cause. The court subsequently
dismissed the complaint and counterclaim. Is the action of the court permissible? (10 pts)
Yes the Courts action is permissible. Pre-trial is by nature mandatory. Considering
that Juan and his counsel did not appear and his failure appeared to be without justifiable
cause, Juan may be declared non- suited and the complaint his dismissed. The dismissal
shall be with prejudice unless otherwise is ordered. His remedy id to appeal the order of
dismissal because it is a final resolution. If dismissed without prejudice, he can refile the
complaint.
35. In a case filed by Boy against Girl, Boy took the deposition of Y, the best friend of Girl.
During the trial, Y was called to testify by Girl. If Boy subsequently uses the deposition of Y, is Y
also the witness of Boy? Discuss fully. (10 pts) (for finals)
36. Judgment was rendered by a court ordering the defendant to reconvey the subject real
property to the plaintiff. After the taking of an appeal by the defendant, X, the person to whom the
defendant had conveyed the property prior to presentation of the plaintiffs evidence, sought to
intervene. Is intervention proper? Assuming it is proper, may it still be allowed? (10 pts)
No. intervention is not proper. The motion to intervene may be filed at any time
before rendition of final judgment by the trial court. Hence, intervention after trial and
decision can no longer be permitted. assuming it was proper, the motion will be allowed
since x ia one who has legal interest in the matter in litigation, he has legal interest in the
success of either party, he has also legal interest against both and he is so situated as to
be adversely affected by the distribution or disposition in the custody of the court.
37. Plaintiff filed a complaint for delivery of a real property based on a deed of sale executed
in his favor by the defendant. In his answer, defendant specifically denied the obligation to deliver.
What are the measures that may be or should be taken by the plaintiff? Discuss fully. (10 pts)
Plaintiff may file a motion for judgment on the pleadings. The Plaintiffs action was
founded on an actionable document. In the defendants answer, he failed to specifically
deny the genuineness and due execution of the document under oath. Absent any other
defense raised by the defendant, plaintiff may move for the judgment on the pleadings.
A mere specific denial of the actionable document is insufficient. The denial must
be coupled with an oath. The absence of an oath will result in the implied admission of the
due execution and genuineness of the document (Sec.8, Rule 8, Rules of Court).
Spouses Santos, when a party fails to properly contest an actionable document,
a prima facie case is made for the plaintiff which dispenses with the necessity of
evidence on his part and entitleshim to a judgment on the pleadings unless a special
defense of new matter, such as payment, is interposed by the defendant.
38. In an action filed by P against D, the parties entered into a partial stipulation of facts
during the pre-trial. During the trial, P obtained admissions from D. Subsequently, P completed
the presentation of his evidence. After due consideration, D was of the belief that P had not
proven his claim. Is a motion to dismiss filed by D on the ground of a lack of a cause of action at
that stage of the proceedings proper? (10 pts)
Yes, a motion to dismiss on the ground of lack of case of action may still be filed.
D may likewise file, with leave of court, a Demurrer to Evidence under Rule 33. Demurrer to
evidence is when the party who may move for dismissal of the action presentation by the
plaintiff of evidence on the ground that upon facts and the law, plaintiff has shown no right
to relief.
39. Jose filed a complaint against Juan. Prior to filing his answer, Juan filed a motion for a
bill of particulars, which the court granted. Jose failed to file the bill of particulars. Joses omission
eventually led to the dismissal of the complaint. A few months after, Jose decided to re-file the
same complaint against Juan. Is Jose allowed to do so? (10 pts)
No, failure of the plaintiff to comply with an order requiring him to submit a bill of
particulars as a ground for dismissal is equivalent to an adjudication on the merits unless
otherwise provided by the court. It should be considered as adjudication on the merits of
the case, where the proper remedy is an appeal under Rule 41.
**RULE 17
Sec. 3. Failure to prosecute. If plaintiff fails to appear at the time of the trial or to
prosecute his action for an unreasonable length of time, or to comply with these rules or
any order of the court, the action may be dismissed upon motion of the defendant or upon
the court's own motion. This dismissal shall have the effect of an adjudication upon
the merits, unless otherwise provided by the court.
40. A purchased a lot from B for PHP 1,000,000.00. A gave a down payment of PHP
500,000.00 and signed a promissory note for the balance, payable thirty days after date, and as
security for the note, mortgaged the same lot to B. When the note fell due and A failed to pay, B
commenced suit for the payment of the balance. After securing a favorable judgment, B also
brought another action against A to foreclose on the mortgage. Is the filing by B of the subsequent
suit proper? Discuss fully. (10pts) If instead, A issued two promissory notes for PHP 250,000.00
each for the balance, payable on different dates and both promissory notes were not paid on the
stipulated dates, is B obliged to file a single suit? Discuss fully (10 pts)
No. The filing of B of the subsequent suit is not proper. His remedy is alternative
and the recovery under one remedy should necessarily bar recovery under another. He
already had chosen to elect fulfillment of the payment of the balance, and to allow him to
foreclose the mortgaged property would constitute double recovery.
No. B is not obliged to file a single suit. Since there are two separate promissory
notes, the non-fulfillment of each may give rise to a different cause of action which the
plaintiff may choose to join in a single suit but does not obliged him to do so since he can
also file two separate suits for each promissory note.
41. A property in which Ernie has an interest has been levied upon pursuant to a judgment in
favor of Gigi, where Ramon, Ernies brother is the defendant. To protect his interest in the
property, can Ernie intervene in the action between Gigi and Ramon? (5 pts) Assuming that Gigi
filed suit against Ramon and Ernie at the onset instead of bringing suit against Ramon only, may
Ernie maintain a third party complaint against Ramon for reimbursement of the amount that he
paid to Ramon for his interest in the property? (5 pts)
Ernie can no longer intervene because the time to intervene is at any time before
rendition of judgment.
Ernie cant maintain a 3rd party complaint against Ramon because Ramon is
already a party to the action. The rules provide that third party complaint is a claim that a
defending party may file against a person not a party to the action.
42. Alan was injured in a vehicular accident. He eventually sued the Alex, the driver of the
offending vehicle, Antonio, the owner of the offending vehicle and ABC Insurance Corporation, the
insurer of the offending vehicle for PHP 1,000,000. As alleged in the complaint, Alan was suing
Alex and Antonio for the damages that he sustained and ABC Insurance Corporation on its
contractual insurance coverage of PHP 50,000 in a case involving damage to another motor
vehicle. ABC Insurance Corporation admitted liability and entered into a compromise agreement
with Alan for the full amount of its contractual liability, leading to its eventual dismissal as a
defendant. Upon having knowledge Alex and Antonio filed a motion to dismiss on the ground that
being indispensable parties under a common cause of action, the case can no longer prosper with
the exclusion of ABC Insurance Corporation. Are Alex and Antonio correct? (10 pts)
Yes, Alex and Antonio are correct. The dismissal of ABC Insurance Corporation,
being a real party in interest who has entered into a compromise agreement with Alan, the
plaintiff, has the effect of dismissal of the action against Alex and Antonio, unless ABC
Insurance Corporation being the insurer-subrogee files a cross-claim against Alex and
Antonio.
43. In an action for the payment of a sum of money, the plaintiff alleged in his Complaint that
On January 15, 2003, the defendant obtained a loan from the plaintiff in the sum of PHP 50,000,
payable within a period of sixty days with interest at the rate of 12% per annum, that said loan
was not paid, that despite repeated demands the defendant adamantly refuses to pay the sum of
PHP 50,000 plus interest. In his Answer, defendant denied the allegations of the plaintiff on the
ground that he does not possess knowledge or information sufficient to form a belief as to the
truth of the said allegations. What is the effect of such a denial? (10 pts)
When matters of which a defendant alleges having no knowledge or information
sufficient to form a belief are plainly and necessarily within his knowledge, his alleged
ignorance or lack of information will not be considered as specific denial. His denial lacks
the element of sincerity and good faith, hence insufficient.
44. X wants to bring two actions against Y. The first cause of action is for partition of the
property that is titled in the names of X and Y in co-ownership. The second cause of action is for
the payment of P 2,000,000.00, which Y had borrowed from X to buy a Mercedes Benz. Can the
causes of action be joined? (5 pts)

The causes of action cannot be joined. The first cause of action is for partition of a
property which is a special civil action governed by Rule 69, while an action for collection
of debt is an ordinary civil action.
The two causes of action cannot be joined in one complaint, because one of the
conditions for joinder o causes of action under Section 5, Rule 2 is that the joinder shall
not include special civil actions or actions governed by special rules.

45. XYZ Hotel filed suit against John, a foreign national who had stayed at the hotel for a
week without paying his bills. At the time of the filing of the suit, John had returned to Hong Kong
where he was employed. Subsequent to the filing of the action, Henry, the manager of the hotel
was authorized by the court to serve summons on John in Hong Kong. Assuming that John was
served on March 1, 2005, within what period must he file his answer? Can John be declared in
default if no answer is filed? (10 pts)

WITHIN WHAT PERIOD MUST HE FILE HIS ANSWER: Within 15 days after service
of summons unless a different period is fixed by the Court.

CAN JOHN BE DECLARED IN DEFAULT IF NO ANSWER IS FILED? NO.

As a Rule a non-resident defendant who is not found in the Philippines can be sued in
the Philippines in the following instances:
1. Actions affects the personal status of the plaintiff;
2. Action relates to, or the subject of which is property within the Philippines in
which the defendant has a claim, lien or interest, actual or contingent;
3. When the relief demanded, in whole or in part consists of excluding the
defendant from any interest in the property located in the Philippines;
4. When the defendants property has been attached to the Philippines.