47.

A cause of action exists if the following elements are present:

(1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created;

(2) an obligation on the part of the named defendant to respect or not to violate such right; and

(3) an act or omission on the part of such defendant violative of the right of plaintiff or constituting a
breach of the obligation of defendant to plaintiff for which the latter may maintain an action for
recovery of damages.

The fundamental test for failure to state a cause of action is whether, admitting the veracity of what
appears on the face and within the four corners of the complaint, plaintiff is entitled to the relief
prayed for.
93. What are the two (2) options if the defendant does not file an answer in a case governed by the Rule on
Summary Procedure?
Where a defendant fails to file an answer, the court shall render judgment, either motu proprio or upon
plaintiff’s motion, based solely on the facts alleged in the complaint and limited to what is prayed for. Thus,
where there is no answer, there is no need for a pre-trial, preliminary conference or hearing.

Or

Should the defendant fail to answer the complaint within the period above
provided, the court, motu proprio, or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and
limited to what is prayed for therein: Provided, however, that the court may in
its discretion reduce the amount of damages and attorney's fees claimed for
being excessive or otherwise unconscionable.

98. May there be a motion for reconsideration from the dismissal of a complaint for ejectment for failure of
the plaintiff to appear in preliminary conference?

For failure to offer any justifiable reason for a party’s absence at the preliminary conference, under the
rules, such inexcusable absence is a ground for the dismissal of the case.

Therefore, if the plaintiff’s fails to show a valid cause as to his failure to appear in the preliminary
conference, a motion for reconsideration may not be allowed.

102. What are the kinds of specific denials?

Revised Rules of Court, recognizes three (3) modes of specific denial, namely: (1) by specifying each
material allegation of fact in the complaint the truth of which the defendant does not admit, and, whenever
practicable, setting forth the substance of the matters which he will rely upon to support his denial or (2) by
specifying so much of an averment in the complaint as is true and material and denying only the remainder
or (3) by stating that the defendant is without knowledge or information sufficient to form a belief as to the
truth of a material averment in the complaint, which has the effect of a denial, and he has adopted the third
mode of specific denial, his answer tendered an issue, and, consequently the court a quo could not render a
valid judgment on the pleadings.

173. How is the service of summons upon domestic private judicial entity?

Service of summons upon domestic private juridical entity shall be made through its president, managing partner,
general manager, corporate secretary, treasurer or in-house counsel.

194. What is the effect if a complaint did not allege prior resort to compromise?

199. What are the ways by which an action may be dismissed upon the instance of the plaintiff?

224. What is the effect if a party takes the deposition of another and uses it, state its effect?

The effect of using a deposition depends on the purpose and the circumstances of its use. They may be as
follows:
 If a deposition is used to contradict or impeach the testimony of the deponent as a witness, it has no other effect than
that of contradicting or impeaching evidence;
 If a deposition is used for any purpose by an adverse party, it may be used against the deponent as an admission;
 If a deposition is used for any purpose by the party who took it, it may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof, as if the deponent were then present and
testifying.

However, there are exceptions to these rules, such as when the deponent is unavailable to testify in court due to
death, absence, sickness, imprisonment, or other exceptional circumstances. In such cases, the deposition may be
used by any party for any purpose2. There are also rules on how to object to the admissibility or use of depositions
based on errors or irregularities in the notice, in the qualifications of the officer who took the deposition, in the
manner of taking, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties 3.

Or

A party shall not be deemed to make a person his or her own witness for any purpose by taking
his or her deposition.

Substitution of parties does not affect the right to use depositions previously taken; and, when an
action has been dismissed and another action involving the same subject is afterward brought
between the same parties or their representatives or successors in interest, all depositions lawfully
taken and duly filed in the former action may be used in the latter as if originally taken therefor.

295. What are the examples of special judgement?

A special judgment is that which is a judgment directs the performance of a specific act requiring the
party or person to personally do because of his personal qualifications and circumstances. With this,
a certified copy of the judgment shall be attached to the writ of execution and shall be served by the
officer upon the party against whom the same is rendered, or upon any other person required
thereby, or by law, to obey the same, and such party or person may be punished for contempt if he
disobeys such judgment.

An example is a favorable judgment in mandamus should be deemed to be limited to directing

compliance with the judgment, and in case of disobedience, to have the disobedient person required
by law to obey such judgment punished with contempt.

298. What is the remedy if the property levied upon is claimed by a third person? How do you protect his
rights?

If the property levied on is claimed by any person other than the judgment obligor or his agent,
and such person makes an affidavit of his title thereto or right to the possession thereof,
stating the grounds of such right or title, and serves the same upon the officer making the levy
and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the
property, unless such judgment obligee, on demand of the officer, files a bond approved by the
court to indemnify the third-party claimant in a sum not less than the value of the property
levied on.

336. Explain the petition for review under Rule 43?

360. What is the legal basis for that principle of contemporaneous service of summons and issuance of writ of
preliminary attachment? Is there an exception?

This principle is found on Rule 57 of the Revised Rules of Court.

The requirement of prior or contemporaneous service of summons shall NOT apply where the
summons could not be served despite diligent efforts, or the defendant is a resident of the Phils
temporarily absent therefrom, or the defendant is a non-resident of the Phils

364. What is a kind of fraud as a a ground for attachment? It’s requirements?

Ground for new trial nga lang, han nga ground for attachment hehe

Fraud, as a ground for new trial, must be extrinsic or collateral, that is, it is the kind of fraud
which prevented the aggrieved party from having a trial or presenting his case to the court, or
was used to procure the judgment without fair submission of the controversy. Instances of
collateral fraud are acts intended to keep the unsuccessful party away from the court by a
false promise of compromise, or purposely keeps him in ignorance of the suit, or where the
attorney fraudulently pretends to represent a party and connives at his defeat, or corruptly
[192]
sells out his client’s interest. It is to be distinguished from intrinsic fraud which refers to
the acts of a party at the trial which prevented a fair and just determination of the
[193]
case and which could have been litigated and determined at the trial or adjudication of
the cases, such as falsification, false testimony and so forth, and does not constitute a ground
[194]
for new trial.

What is a kind of fraud as a a ground for attachment?

 To sustain an attachment on this ground, it must be shown that the debtor in contracting the debt or incurring the
obligation intended to defraud the creditor. The fraud must relate to the execution of the agreement and must have
been the reason which induced the other party into giving consent which he would not have otherwise given. To
constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules of Court, fraud should be committed upon
contracting the obligation sued upon. A debt is fraudulently contracted if at the time of contracting it the debtor has a
preconceived plan or intention not to pay, as it is in this case. Fraud is a state of mind and need not be proved by
direct evidence but may be inferred from the circumstances attendant in each case

It’s requirements

1. Affidavit of the applicant, or of some other person who personally knows the facts that is a sufficient cause of
action exists, the case is none mentioned in rule 57, section1 of the rules of court, there is no other sufficient security
for t eh claim sought to be enforced by the action, and the amount of the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as sum for which the order is granted; and

2. Applicant’s bond or attachment bond, a bond executed to the adverse party in the amount fixed by the court in its
order granting the issuance of the writ, conditioned that the applicant will pay all the cost which may be adjudge to
the adverse party may sustain by reason of attachment, if the court shall finally adjudge that the applicant was not
entitled to the attachment. The affidavit and the bond must be duly filed with the court before the order of
attachment issues.

389. What are the instances when receivers may be appointed?

A receiver may be appointed by the court in which an action is pending, or by the Court of Appeals or by the
Supreme Court, or a member thereof, in the following cases:

 When it appears from the verified application, and such other proof as may be required, that the party applying for
the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding,
and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be
appointed to administer and preserve it;
 When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of
being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage
debt, or that the parties have so stipulated in the contract of mortgage;
 After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the
judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;
 Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of
preserving, administering, or disposing of the property in litigation.

463. If there is an action for annulment of sale, does that suspend the action for ejectment?