MIDTERMS 2010 4.
A party in default cannot be a witness in the case because he
Determine whether or not the following statements are correct and explain
and/or give the reason/s for your answers. (5 pts. for each question)
1. The MTC has exclusive jurisdiction over an action for partition
involving a parcel of land with an assessed value of P15,000.00.
False. The MTC has “exclusive original” jurisdiction over an action for
partition involving a parcel of land with an assessed value of P15,000.00,
being in the nature of a real action.
(BP 129) Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts in civil cases. – Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall
exercise:
(3) Exclusive original jurisdiction in all civil actions which involve title to, or
possession of, real property, or any interest therein where the assessed
value of the property or interest therein does not exceed Twenty thousand
pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed
value does not exceed Fifty thousand pesos (P50,000.00) exclusive of
interest, damages of whatever kind, attorney's fees, litigation expenses and
costs: Provided, That value of such property shall be determined by the
assessed value of the adjacent lots. (as amended by R.A. No. 7691)
2. When a defendant is already deceased upon the filing of the
complaint, the court may order the legal heir/s or representative to appear
and be substituted for the deceased party.
False. The defendant here is already deceased “upon the filing of the
complaint”, which means the court never acquired jurisdiction over the
person of the defendant in the first place. The procedure mentioned here
involving the substitution of the deceased party, happens only when a
defendant dies during the pendency of an action, in which case the court
has already acquired jurisdiction over the person of the deceased party.
Dael vs Teves - “Rule 3, Section 16 of the Rules applies to a situation where
a party (whether plaintiff or defendant) dies after the filing of the complaint
and during the pendency of the case. This is not the situation in the case at
bar since the two defendants, whose heirs are to be impleaded died even
before the filing of the complaint.”
3. It is not necessary to make a certification against forum shopping
on a compulsory counterclaim.
True. A certification against forum shopping is immaterial when the
counterclaim is compulsory because it is merely a response and under pain
of waiver to an initiatory pleading, which is the complaint itself.
(Rule 7) Section 5. Certification against forum shopping. — The plaintiff or
principal party shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn certification annexed
thereto….
Cruz-Agana v Judge Santiago-Lagman - “A compulsory counterclaim set up
in the answer is not an "initiatory" or similar pleading. The initiatory pleading
is the plaintiff's complaint. A respondent has no choice but to raise a
compulsory counterclaim the moment the plaintiff files the complaint.
Otherwise, respondent waives the compulsory counterclaim. In short, the
compulsory counterclaim is a reaction or response, mandatory upon pain of
waiver, to an initiatory pleading which is the complaint. This distinction was
the basis for the ruling inSanto Tomas and Ponciano. The sole issue for
resolution in the present case is whether respondent's counterclaim is
compulsory or permissive. If it is a permissive counterclaim, the lack of a
certificate of non-forum shopping is fatal. If it is a compulsory counterclaim,
the lack of a certificate of non- forum shopping is immaterial.”
cannot anymore “take part in the trial”.
False. In the case of Cavili vs Florendo, it was held that a party in default
loses only his right to be a party litigant, but does not lose his right to be a
witness. A witness simply testifies and what is more important to the case is
the resolution of the main case to which such party in default is being called
upon to testify.
Cavili vs Florendo - “A party in default loses his right to present his defense
control the proceedings, and examine or cross-examine witnesses. He has
no right to expect that his pleadings would be acted upon by the court nor
may he object to or refute evidence or motions filed against him. There is
nothing in the rule, however, which contemplates a disqualification to be a
witness or a opponent in a case. Default does not make him an incompetent.
As opposed to a party litigant, a witness is merely a beholder, a spectator or
onlooker, called upon to testify to what he has seen, heard, or observed.
(does not control, examine, present evidence!) As such, he takes no active
part in the contest of rights between the parties. Cast in the cited role of
witness, a party in default cannot be considered as " a part in the trial." Of
greater concern or importance in allowing the presence of Perfecta Cavili as
a witness in the case at bar, is the preservation of the right of petitioners
Quirino and Primitivo Cavili to secure the attendance of witnesses and the
production of evidence in their behalf.
5. No award in excess of the amount or different in kind from that
prayed for in the complaint maybe awarded by the court.
False. This rule only applies in a judgment rendered against a party in
default. A court may award a claim not specified in the pleading or if
specified, may be left to the determination by the court.
Sun Insurance v Asuncion - “Where the trial court acquires jurisdiction over
a claim by the filing of the appropriate pleading and payment of the
prescribed filing fee but, subsequently, the judgment awards a claim not
specified in the pleading, or if specified the same has been left for
determination by the court, the additional filing fee therefor shall constitute a
lien on the judgment. It shall be the responsibility of the Clerk of Court or his
duly authorized deputy to enforce said lien and assess and collect the
additional fee.”
Rule 9, Section 3 - (d) Extent of relief to be awarded. — A judgment rendered
against a party in default shall neither exceed the amount or be different in
kind from that prayed for nor award unliquidated damages.
6. The court on its own initiative may dismiss a case for improper
venue if the same is apparent on the face of the complaint.
False. In a civil case, venue can be waived; therefore, the court cannot
dismiss motu proprio a case for improper venue, even if the same is
apparent on the face of the complaint, if the defendant does not file an
objection. It is only the defendant who can waive it.
Dacoycoy v. IAC
Thus, unless and until the defendant objects to the venue in a motion to
dismiss, the venue cannot be truly said to have been improperly laid, as for
all practical intents and purposes, the venue, though technically wrong, may
be acceptable to the parties for whose convenience the rules on venue had
been devised. The trial court cannot pre-empt the defendant's prerogative to
object to the improper laying of the venue by motu proprio dismissing the
case.”
7. Service of final judgment through publication is necessary if
extraterritorial service of summons was made on the defendant.
False. It is only when a party summoned by publication has failed to appear
in the action, that the a final judgment against him or her shall be served
upon him or her also by means of publication at the expense of the prevailing
party
Rule 13, Section 13. Service of Judgments, Final Orders or Resolutions. —
Judgments, final orders, or resolutions shall be served either personally or
by registered mail. Upon ex parte motion of any party in the case, a copy of
the judgment, final order, or resolution may be delivered by accredited
courier at the expense of such party. When a party summoned by publication
has failed to appear in the action, judgments, final orders or resolutions
against him or her shall be served upon him or her also by means of
publication at the expense of the prevailing party. (9a)
8. An action for reconveyance of real property with an assessed
value of P20,000.00 which at the same time seeks to recover P500,000.00
as plaintiff’s share in the fruits of the property should be filed with the RTC.
True. Where the causes of action are between the same parties but pertain
to different venues or jurisdictions, the joinder may be allowed in the RTCt
provided one of the causes of action falls within the jurisdiction of said court
and the venue lies therein. In this case, while the action for reconveyance of
real property with an assessed value of P20,000 is within the jurisdiction of
the MTC, the action to recover the P500,000 share in the fruits of the
property is within the jurisdiction of the RTC. Hence, applying the rule on
joinder of causes of action, the case can be filed in the RTC.
Rule 2, Section 5. Joinder of causes of action. — A party may in one pleading
assert, in the alternative or otherwise, as many causes of action as he may
have against an opposing party, subject to the following conditions:
(c) Where the causes of action are between the same parties but pertain to
different venues or jurisdictions, the joinder may be allowed in the Regional
Trial Court provided one of the causes of action falls within the jurisdiction of
said court and the venue lies therein;
9. No foreign private juridical entity with no license to do business in
the Philippines can sue or be sued in our courts.
False. It is not the lack of license to do business in the Philippine but the
doing of business without a license in the Philippines that bars a foreign
corporation from having access to our courts. Hence, a foreign private
juridical entity with no license to do business in the Philippines can sue or
be sued under the isolated transaction rule, which allows such entities to sue
without a license if it is not doing business in the Philippines.
Hang Lung Bank v. Saulog
It is not the lack of the prescribed license (to do business in the Philippines)
but doing business without license, which bars a foreign corporation from
access to our courts. A foreign corporation not licensed to do business in the
Philippines may not be denied the right to file an action in our courts for an
isolated transaction in this country.
10. In a collection suit based on a promissory note, the defendant
should not be allowed to prove the affirmative defence of payment if his
answer is unverified as this has the effect of a technical admission of the
genuineness and due execution of the promissory note.
False. The plaintiff is still allowed to prove the affirmative defense of payment
even if his answer is unverified because payment or lack thereof is not
inconsistent with genuineness and due execution of the promissory note.
Bough vs. Cantiveros
The failure of the party to file an affidavit denying the genuineness and due
execution of the document does not estop him from controverting it by
evidence of fraud, mistake, compromise, payment, statute of limitations,
estoppel, and want of consideration.
11. A vendor of a real property is an indispensable party in a suit for
recover of title filed by a third person against the vendee.
No. A vendor of a real property is not an indispensable party in a suit to
recover title. An indispensable party is one without whom no final
determination can be had in a case and whose interests will be affected or
prejudiced by their non-inclusion in the case. In this case, a vendor of a real
property has parted with his rights over the real property in favor of the
vendee who now possess such. There are no rights or interests left with the
vendor by such sale, hence no rights to be prejudiced by their non-inclusion
in the case and final determination can be had. Therefore, the vendor is not
an indispensable party in this case.
Rule Sec. 7. Compulsory joinder of indispensable parties
Parties in interest without whom no final determination can be had of an
action shall be joined either as plaintiffs or defendants.
12. An action filed in the RTC of Manila to recover the amount of
P400,000.00 and P500,000.00 due from X and Y, respectively, arising from
two (2) separate promissory notes should be dismissed outright on the
ground of improper joinder of parties.
No. The action must not be dismissed outright on the ground of improper
joinder of parties. The rule is any claim against a misjoined party may be
severed and proceeded with separately.
Rule 3 Sec. 11 Misjoinder and non-joinder of parties
Neither misjoinder nor non-joinder of parties is ground for dismissal of an
action. Parties may be dropped or added by order of the court on motion of
any party or on its own initiative at any stage the action and on such terms
as are just. Any claim against a misjoined party may be severed and
proceeded with separately.
13. A compulsory counterclaim or cross-claim must always be within
the jurisdiction of the court otherwise no relief thereon can be awarded by
the court.
Yes, they must always be within the jurisdiction of the court. The elements
of a compulsory counterclaim are that it arises out of the same subject matter
of the opposing party’s claim, does not require presence of third parties,
must be due and demandable, and that it is within the jurisdiction of the court
both as to nature and the amount, with the exception of one filed with the
RTC where the amount would suffice. As such, for relief to be had, they must
be within the jurisdiction of the court hearing the case.
Rule 6 Sec. 7 Compulsory counterclaim.
A compulsory counterclaim is one which, being cognizable by the regular
courts of justice, arises out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing party's claim and
does not require for its adjudication the presence of third parties of whom
the court cannot acquire jurisdiction. A counterclaim must be within the
jurisdiction of the court both as to the amount and the nature thereof, except
that in an original action before the Regional Trial Court, the counterclaim
may be considered compulsory regardless of the amount.
14. An initiatory pleading without a certification against forum
shopping should not be dismissed unless it is shown that litis pendentia or
res judicata exists.
No. An initiatory pleading without a certification against forum shopping
should be dismissed. The law requires that a certification against forum
shopping must be secured by the plaintiff for the initiatory proceeding,
otherwise, it will be dismissable and not curable by amendment. Such
dismissal shall be without prejudice and can be refiled.
Rule 7 Sec. 5 Certification against forum shopping
The plaintiff or principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith:
(a) that he or she has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or quasijudicial agency
and, to the best of his or her knowledge, no such other action or claim is
pending therein;
(b) if there is such other pending action or claim, a complete statement of
the present status thereof; and
(c) if he or she should thereafter learn that the same or similar action or claim
has been filed or is pending, he or she shall report that fact within five (5)
calendar days therefrom.
Failure to comply with the foregoing requirements shall not be curable by
mere amendment of the complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing.
15. A non resident not found in the Philippines may be served with
summons through his wife who is in the Philippines provided that the action
is in rem or quasi in rem.
No. A non-resident not found in the Philippines may not be served with
summons through his wife who is in the Philippines if the action is in rem or
quasi in rem. When a defendant does not reside and is not found in the
Philippines and the action affects his personal status or the subject is a
property within the Philippines he has claims or interest in or such property
has been attached, summons may be made either (1) by personal service;
(2) 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 should be sent by registered mail to the last known
address of the defendant; or (3) in any other manner which the court may
deem sufficient. All of which must be made extraterritorially, not through his
wife
Rule 14 Sec. 17. Extraterritorial Service / Valmonte v. CA
Lourdes A. Valmonte is a nonresident who is not found in the Philippines,
service of summons on her must be in accordance with Rule 14, §17. Such
service, to be effective outside the Philippines, must be made either (1) by
personal service; (2) 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 should be sent by registered mail to
the last known address of the defendant; or (3) in any other manner which
the court may deem sufficient.
The third mode of service, like the first two, must be made outside the
Philippines, such as through the Philippine Embassy in the foreign country
where the defendant resides.
16. Failure of plaintiff to comply with a court order requiring the
amendment of the complaint to implead a necessary party is a ground for
dismissal. The same rule applies if the party ordered to be joined is an
indispensable party.
No, the refusal of the plaintiff to comply with the court’s order to implead a
necessary party is not a ground for the dismissal of the case. The only effect
of the failure to comply with the order is that the plaintiff can no longer assert
his claim against such necessary party since the non-inclusion is deemed a
waiver thereof.
On the other hand, the case can be dismissed by the court if the plaintiff fails
to comply with the court’s order requiring the plaintiff to implead an
indispensable party. The Rules of Court provide among the grounds to
dismiss the case due to the fault of the plaintiff is if the latter, with no
justifiable cause, fails to comply with the Rules of Court or with any order of
the court. By failing to comply, the case may be dismissed on motion of the
defendant or motu proprio by the court.
Rule 3:
Section 9. Non-joinder of necessary parties to be pleaded. — Whenever in
any pleading in which a claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall state why he is omitted.
Should the court find the reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if jurisdiction over his person
may be obtained.
The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (8a, 9a)
Rule 17:
Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the
plaintiff fails to appear on the date of the presentation of his or her evidence
in chief on the complaint, or to prosecute his or her action for an
unreasonable length of time, or to comply with these Rules or any order of
the court, the complaint may be dismissed upon motion of the defendant or
upon the court's own motion, without prejudice to the right of the defendant
to prosecute his or her counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court. (3a)
17. Filing of a reply is mandatory.
False. The purpose of a reply is to controvert the genuineness and due
execution of an actionable document. Should the party adverse to such
actionable document decide not to file a reply, the only effect is that they
admit of the genuineness and due execution of the document.
Rule 6:
Section 10. Reply. — All new matters alleged in the answer are deemed
controverted. If the plaintiff wishes to interpose any claims arising out of the
new matters so alleged, such claims shall be set forth in an amended or
supplemental complaint. However, the plaintiff may file a reply only if the
defending party attaches an actionable document to his or her answer.
A reply is a pleading, the office or function of which is to deny, or allege facts
in denial or avoidance of new matters alleged in, or relating to, said
actionable document.
In the event of an actionable document attached to the reply, the defendant
may file a rejoinder if the same is based solely on an actionable document.
(10a)
Rule 8:
Section 8. How to contest such documents. - When an action or defense is
founded upon a written instrument, or attached to the corresponding
pleading as provided in the preceding section, the genuineness and due
execution of the instrument shall be deemed admitted unless the adverse
party, under oath specifically denies them, and sets forth what he or she
claims to be the facts; but the requirement of an oath does not apply when
the adverse party does not appear to be a party to the instrument or when
compliance with an order for an inspection of the original instrument is
refused. (8a)
18. All actions for annulment of judgment should be filed with the
Court of Appeals.
False. An action to annul the judgment of the Regional Trial Courts shall be
filed with the Court of Appeals. However, actions to annul the judgments of
the Municipal Trial Courts shall be filed in the Regional Trial Courts.
Rule 47, ROC:
Section 1. Coverage. — This Rule shall govern the annulment by the Court
of Appeals of judgments or final orders and resolutions in civil actions of
Regional Trial Courts for which the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner. (n)
XXXXX
Section 10. Annulment of judgments or final orders of Municipal Trial Courts.
— An action to annul a judgment or final order of a Municipal Trial Court
shall be filed in the Regional Trial Court having jurisdiction over the former.
It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9
of this Rule shall be applicable thereto. (n)
19. Referral to the Lupon for conciliation is not necessary if the parties
to the dispute are not residents of the same city or municipality.
True. Section 408 of the Local Government Code provides as an exception
to the rule that all disputes must be brought before the lupon that those
disputes where parties are residents of barangays of different municipalities
or cities need not bring the matter before the lupon. The exception to this
exception is where the cities where the parties reside adjoin each other and
the parties agree to bring the matter to the lupon.
Section 408. Subject Matter for Amicable Settlement; Exception Thereto. -
The lupon of each barangay shall have authority to bring together the parties
actually residing in the same city or municipality for amicable settlement of
all disputes except:
(a) Where one party is the government, or any subdivision or instrumentality
thereof;
(b) Where one party is a public officer or employee, and the dispute relates
to the performance of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) year or a fine
exceeding Five thousand pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;
(f) Disputes involving parties who actually reside in barangays of different
cities or municipalities, except where such barangay units adjoin each other
and the parties thereto agree to submit their differences to amicable
settlement by an appropriate lupon;
(g) Such other classes of disputes which the President may determine in the
interest of Justice or upon the recommendation of the Secretary of Justice.
The court in which non-criminal cases not falling within the authority of the
lupon under this Code are filed may, at any time before trial motu propio
refer the case to the lupon concerned for amicable settlement.
20. No motion for reconsideration or a petition for certiorari are
allowed in cases governed by Rules on Summary Procedure.
Partially true. According to the revised rules on summary procedure, among
the prohibited pleadings and motions in cases governed by such rules are
motions for reconsideration, new trial, or for reopening of the case.
Furthermore, the rules provide that there can be no petition for certiorari,
mandamus, or prohibition based on the interlocutory orders of the court.
However, there is no prohibition regarding certiorari based on final orders of
the court.
Sec. 19. Prohibited pleadings and motions. — The following pleadings,
motions or petitions shall not be allowed in the cases covered by this Rule:
(c) Motion for new trial, or for reconsideration of a judgment, or for opening
of trial;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory
order issued by the court;
FINALS 2011
1. Upon plaintiff’s application, an ex parte warrant of seizure on defendant’s
car was issued before service of summons. The sheriff’s return stated that
the defendant left for the USA and that his address in the Philippines is
unknown. The car having been seized by the sheriff, the plaintiff moved to
have the summons served by publication which the court granted and a copy
thereof together with the complaint was sent by registered mail to
defendant’s last known address. Thereafter, the trial court issued a show
cause order why the case should not be dismissed for lack of jurisdiction
over the person of the defendant.
a) How would you respond to the court’s show cause order? (5%)
The case should not be dismissed because the case was already converted
from an action in personam to one in rem/quasi in rem. The attachment and
approval from the court to serve summons by publication and sending it by
registered mail to the defendant's last known address converted the action
to one in rem/quasi in rem. Hence, what is important is jurisdiction over the
res.
(Rule 57) Section 1. Grounds upon which attachment may issue. — At the
commencement of the action or at any time before entry of judgment, a
plaintiff or any proper party may have the property of the adverse party
attached as security for the satisfaction of any judgment that may be
recovered in the following cases:
(f) In an action against a party who does not reside and is not found in the
Philippines, or on whom summons may be served by publication.
b) Was the warrant of seizure properly issued? (5%)
Yes, the warrant of seizure was properly issued because it may be issued
with prior/simultaneous service of summons.
(Rule 57) Section 5. Manner of attaching property xxx No levy on
attachment pursuant to the writ issued under section 2 hereof shall be
enforced unless it is preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint, the application
for attachment the applicant's affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines.
c) Was the warrant of seizure properly implemented? (5%)
Yes, the levy on attachment was properly implemented. Rule 57, section 5
states that the requirement of prior/simultaneous service of summons shall
not apply if the action is one in rem or quasi in rem or when summons could
not be served personally or by substituted service.
(Rule 57) Section 5 (cont of provision above): The requirement of prior or
contemporaneous service of summons shall not apply where the summons
could not be served personally or by substituted service despite diligent
efforts, or the defendant is a resident of the Philippines temporarily absent
therefrom, or the defendant is a non-resident of the Philippines, or the action
is one in rem or quasi in rem.
2. In a partition suit, the RTC on December 15 rendered judgment declaring
that plaintiff and defendant are co-owners only of Lot No. 1 but not Lot No.
2. In the same decision, the court appointed 3 commissioners to hear and
recommend physical partition of Lot No. 1. Defendant received copy of the
decision on January 5, while the plaintiff, on January 11.
a) If the defendant appeals, when and how should the appeal be taken? (5%)
The defendant may appeal by filing a notice of appeal and a record on
appeal within 30 days from notice of the judgment or final order. The
defendant must likewise pay to the clerk of court which rendered the
judgment appealed from the appropriate docket and other lawful fees. The
appeal shall be by record on appeal because a partition suit is multi tiered in
nature, and once one aspect is disposed of, that shall already be a subject
of an appeal.
(Rule 41) Section 3. Period of ordinary appeal; appeal in habeas corpus
cases. – The appeal shall be taken within fifteen (15) days from notice of the
judgment or final order appealed from. Where a record on appeal is required,
the appellants shall file a notice of appeal and a record on appeal within thirty
(30) days from notice of the judgment or final order.
Section 4. Appellate court docket and other lawful fees. — Within the period
for taking an appeal, the appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed from, the full amount of the
appellate court docket and other lawful fees. Proof of payment of said fees
shall be transmitted to the appellate court together with the original record
or the record on appeal. (n)
b) On Jan, 13, defendant filed notice of appeal but 5 days later on Jan. 18
he withdrew it and filed a motion for reconsideration. Are the withdrawal of
the appeal and the filing of the motion for reconsideration proper? (5%)
The withdrawal of the appeal is proper, but the filing of the motion of
reconsideration is not. The court retains residual jurisdiction to allow
withdrawal of an appeal as provided under the Rules of Court. However, the
filing of a motion for reconsideration is not proper since the court already
loses its jurisdiction as to the person filing a notice of appeal, signifying his
preference to deal with the appellate court this time, and not anymore with
the lower court.
(Rule 41) Section 9. Perfection of appeal; effect thereof. — A party's appeal
by notice of appeal is deemed perfected as to him upon the filing of the notice
of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the approval of the record on
appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the expiration of the time
to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the records on appeal filed in
due time and the expiration of the appeal of the other parties.
In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of the
rights of the parties which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent litigants, order execution
pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the
appeal. (9a)
PNB vs Cordova - “In fact, to paraphrase the words of remedial law expert
Justice Florenz D. Regalado, petitioner, with its appeal already perfected,
cannot withdraw the same for the purpose of reviving the jurisdiction of the
trial court and enabling it to take another course of action calling for the
exercise of that jurisdiction. This is because by filing the notice of appeal,
petitioner insofar as it is concerned has perfected its appeal to the CA, and
it should be in that court where he may pursue any further remedy.”
c) Assuming defendant’s appeal was not withdrawn, plaintiff on January 25
moved to reconsider the Dec. 15 decision, may the court entertain the same
despite perfection of defendant’s appeal? (5%)
Yes, the court may still entertain the same because a motion for
reconsideration shall be filed within the period of 15 days from the date of
receipt of the judgment or final order. The period to file here on the part of
the plaintiff has not yet lapsed.
(Rule 37)
Section 1. Grounds of and period for filing motion for new trial or
reconsideration. — Within the period for taking an appeal, the aggrieved
party may move the trial court to set aside the judgment or final order and
grant a new trial for one or more of the following causes materially affecting
the substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented
would probably alter the result.
Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded are excessive,
that the evidence is insufficient to justify the decision or final order, or that
the decision or final order is contrary to law. (1a)
d) Assuming again that there was no withdrawal of defendant’s appeal, the
trial court granted plaintiff’s motion for reconsideration ruling that Lot No. 2
is also co-owned by both parties, may the defendant file a motion for
reconsideration despite the perfection of his appeal? (5%)
Yes, the defendant may file another motion despite the perfection of his
appeal. In the case of PNB vs Cordova, the court allowed the filing of a
motion for reconsideration on the revised decision. What is not necessary to
be filed is another notice of appeal, which will only be considered as mere
superfluity given the initial perfection of his appeal.
PNB v Cordova - x x x [S]ince the decision as modified substantially
increased petitioner's liability, the logical inference is that petitioner would all
the more want to appeal from the decision as modified. To deny petitioner's
appeal on the sole ground that it failed to file another notice of appeal in
order to signify its objection to the modified decision would be to put a
premium on technicalities at the expense of a just resolution of the case. An
essential and logical implication of the said rule is that the filing of a second
notice of appeal from the modified decision is a superfluity, if not a useless
ceremony. It, therefore, matters no longer whether that second notice is
timely filed or not. Hence, in this case, petitioner's filing of a belated second
notice of appeal does not affect or foreclose its already perfected appeal.
3. When should a party respond to the following pleadings: (a) amended
pleading; (b) counterclaim; (c) 3rd party complaint; (d) cross-claim subject to
a motion to dismiss; and (e) reply. (5%)
(a) If the pleading is amended as a matter of right, the party shall respond
within 30 calendar days after being served with a copy thereof. If it is
amended not as a matter of right, the party shall answer within 15 calendar
days from notice of the order admitting the same.
Rule 11, Section 3. Answer to amended complaint. — When the plaintiff files
an amended complaint as a matter of right, the defendant shall answer the
same within thirty (30) calendar days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the
amended complaint within fifteen (15) calendar days from notice of the order
admitting the same. An answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed. This Rule shall apply to the
answer to an amended counterclaim, amended cross- claim, amended third
(fourth, etc.)-party complaint, and amended complaint-in-intervention. (3a)
(b) A party must respond to a counterclaim within 20 calendar days from
service of the counterclaim.
Rule 11, Section 4. Answer to counterclaim or cross-claim. — A
counterclaim or cross-claim must be answered within twenty (20) calendar
days from service. (4a)
(c) A party must respond to a 3rd party complaint within 30 calendar days
after service of summons, unless a different period is fixed by the court.
Rule 11, Section 5. Answer to third (fourth, etc.)-party complaint. — The time
to answer a third (fourth, etc.)-party complaint shall be governed by the same
rule as the answer to the complaint. (5)
Rule 11, Section 1. Answer to the complaint. — The defendant shall file his
or her answer to the complaint within thirty (30) calendar days after service
of summons, unless a different period is fixed by the court.
(d) The balance of the period of 10 days from service before serving his
moton but in no case less than 5 days.
(e) Since both a rejoinder (a response to a reply) and a reply are based on
an actionable document, the period of filing for the two should be the same?
Hence, just as a reply can be filed within fifteen (15) calendar days from
service of the pleading responded to, a party should also respond to a reply
within 15 calendar days from service of the pleading responded to.
Rule 11, Section 6. Reply. — A reply, if allowed under Section 10, Rule 6
hereof, may be filed within fifteen (15) calendar days from service of the
pleading responded to.
4. XYZ Co., a Philippine corporation, entered into a contract for the supply
of materials with ABC Co. a foreign corporation not domiciled nor licensed
to do business in the Philippines. Pursuant to the arbitration clause of the
agreement and after XYZ Co. defaulted in its obligation, ABC Co. filed and
was able to obtain from the arbitral tribunal in Singapore an award against
XYZ Co. To prevent its impending enforcement, XYZ Co. filed a verified
complaint against ABC Co. with RTC-Manila for injunction with damages and
prayed to nullify the arbitral award with prayer for TRO and preliminary
injunction. What is the proper mode of service so that the RTC-Manila will
acquire jurisdiction over the ABC Co.? (5%)
Since an action for injunction is considered an action in personam, the court
can only acquire jurisdiction over the person by personal or substituted
service of summons. However, if the defendant is not residing and is not
found in the Philippines, the Philippine courts cannot try any case against
him because of the impossibility of acquiring jurisdiction (making personal or
substituted service) over his person unless he voluntarily appears in court.
Hence, in this case, the RTC-Manila cannot serve the summons by personal
or substituted service since ABC Co. is not domiciled nor licensed to do
business in the Philippines. The only way to acquire jurisdiction over ABC
Co. is when it voluntarily appears and submits to the authority of the court.
Dial Service Corporation v. Soriano
As a general rule, when the defendant is not residing and is not found in the
Philippines, the Philippine courts cannot try any case against him because
of the impossibility of acquiring jurisdiction over his person unless he
voluntarily appears in court
5. After a judgment was rendered ordering the defendant to surrender
possession of the litigated property to plaintiff, the former filed a notice of
appeal. Twenty (20) days later, the court, on motion of plaintiff, appointed a
receiver to take possession the litigated property pending appeal. Defendant
moved for reconsideration arguing that the trial court lost jurisdiction to
appoint a receiver owing to the perfection of the appeal. Decide. (5%)
The trial court did not lose its jurisdiction to appoint a receiver just because
of the perfection of the appeal. In the case of Acuña v. Caluag, the Court
held that although the perfection of an appeal deprives the trial court of
jurisdiction over the case, nevertheless, under Rule 41, Section 9 of the
Rules of court, said court retains jurisdiction as regards the preservation of
the property under litigation and involved in the appeal, including necessarily
the authority to appoint a receiver who has the power to take and keep
possession of the property in controversy.
Hence, in this case, even if the party has perfected his appeal, the court
retains its residual jurisdiction to appoint a receiver.
Acuña v. Caluag
Although the perfection of an appeal deprives the trial court of jurisdiction
over the case, nevertheless, under the law, said court retains jurisdiction as
regards the preservation of the property under litigation and involved in the
appeal, including necessarily the authority to appoint a receiver who has the
power to take and keep possession of the property in controversy.
Rule 41, Section 9. Perfection of appeal; effect thereof. —
xxxxxx
In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of the
rights of the parties which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent litigants, order execution
pending appeal in accordance with 2 of Rule 39, and allow withdrawal of the
appeal. (9a)
6. When are motions for new trial considered pro forma? (10%)
Motions for new trial are considered pro forma when it does not comply with
the formal and substantial requirements of the said motion provided in the
Rules of Court.
Rule 37, Section 2 of the Rules of Court provide that a motion for new trial
shall be made in writing stating the ground or grounds therefor, a written
notice of which shall be served by the movant on the adverse party. A motion
for new trial on the ground of (FAME) shall be supported by affidavits of
merits which may be rebutted by affidavits. A motion on the ground of newly
discovered evidence shall be supported by affidavits of the witnesses by
whom such evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
Failure to comply with any of the requirements mentioned will make the
motion for new trial pro forma. For example, if the ground for the said motion
is newly discovered evidence and the applicant only gave a general
statement without specifying evidence or attaching copies, the said motion
will be considered as pro forma.
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal.
Rule 37, Section 2. Contents of motion for new trial or reconsideration and
notice thereof. — The motion shall be made in writing stating the ground or
grounds therefor, a written notice of which shall be served by the movant on
the adverse party. A motion for new trial shall be proved in the manner
provided for proof of motion. A motion for the cause mentioned in paragraph
(a) of the preceding section (FAME) shall be supported by affidavits of merits
which may be rebutted by affidavits. A motion for the cause mentioned in
paragraph (b) (newly discovered evidence) shall be supported by affidavits
of the witnesses by whom such evidence is expected to be given, or by duly
authenticated documents which are proposed to be introduced in evidence.
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal. (2a)
Referral of dispute to Barangay Lupon is required only where the parties are
“individuals”: a single human being as contrasted with a social group or
institution." Obviously, the law applies only to cases involving natural
persons, and not where any of the parties is a juridical person (including
estate of deceased)
(b) the award of back rentals in the amount of P500,000 is beyond the MTC’s
jurisdiction.
The award in the amount of P500,000 is beyond the MTC’s jurisdiction. The
MTC has jurisdiction over civil actions where the value of the personal
property, estate, or the amount demanded does not exceed P100,000
(P200,000 in metro manila). In this case, the back rentals in the amount of
P500,000 is way beyond the MTC’s jurisdiction of P100,000.
Sec. 33 Jurisdiction of MeTC, MC

9. In a case instituted by Pedro against Daniel, the RTC of Makati, Br. X,

7. Landowner X appointed A agent to look for a buyer for his land. The latter
issued a writ of attachment. When the sheriff attempted to attach a parcel of
designated A-1 as his sub-agent for the same purpose without the
land allegedly belonging to Daniel, he was confronted by Javier who,
knowledge and consent of X. A-1 found a purchase but X withdrew from the
claiming ownership over the property, presented the sheriff with a 3rd party
transaction. Agent A and sub-agent A-1 joined as plaintiffs in one complaint
claim. As the sheriff was still threatening to proceed with the attachment.
for recovery of the commission which they failed to realize because of
Javier filed an action in the RTC of Manila, Br. XXII, against the sheriff and
landowner X’s withdrawal. Is the joinder of plaintiffs proper? (5%)
Pedro for injunction and damages. The defendants filed a motion to dismiss
contending that the action constitutes undue interference on the processes
Yes, the joinder is proper. For a joinder to be proper, the right of relief must of a coequal court. Decide. (5%)
arise out of the same transaction or series of transaction and there is a
question of law or fact common to the plaintiffs and defendants. The agent
The motion to dismiss is not meritorious. A stranger to the action who claims
and the sub-agent’s right of relief arose from the same series of transaction
interest in a property being attached or levied may make a third party claim
or their right to be paid their commission. The lack of consent or privity
by filing an affidavit and serving the same on the sheriff and the person in
between the landowner X and sub-agent A-1 is immaterial because such is
whose favor the attachment is being awarded to. The third-party claimant
not a requisite for a proper joinder.
may also file a separate independent action and the court hearing the same
may issue an injunction against the sheriff and damages against Pedro. This
Rule 3, Sec.6 Permissive joinder of parties is not undue interference as such is allowed by the law itself under the rules
of court.
All persons in whom or against whom any right to relief in respect to or
arising out of the same transaction or series of transactions is alleged to Rule 39, Sec. 16 Proceeding where property is claimed by third person
exist, whether jointly, severally, or in the alternative, may, except as
otherwise provided in these Rules, join as plaintiffs or be joined as
Exclusive original jurisdiction over civil actions and probate proceedings,
defendants in one complaint, where any question of law or fact common to
testate and intestate, including the grant of provisional remedies in proper
all such plaintiffs or to all such defendants may arise in the action; but the
cases, where the value of the personal property, estate, or amount of the
court may make such orders as may be just to prevent any plaintiff or
demand does not exceed One hundred thousand pesos (P100,000.00) or,
defendant from being embarrassed or put to expense in connection with any
in Metro Manila where such personal property, estate, or amount of the
proceedings in which he may have no interest.
demand does not exceed Two hundred thousand pesos (P200,000.00)
exclusive of interest damages of whatever kind, attorney's fees, litigation
8. Pedro Realty Corp., with offices at Malolos, Bulacan, filed an ejectment expenses, and costs.
suit against in Damaso in the MTC of Bulacan. Trial commenced and
terminated with a judgment ordering Damaso to vacate and pay back rentals
in the amount of P500,000. On appeal, Damaso moved for the reversal of
the judgment on the following grounds:
10. Pedro was awarded a money judgment by the High Court of Hongkong
in the amount of HK$40,000.00 or the equivalent of Php240,000. In what
(a) non-referral of the dispute to the Lupon; and
court should the action for the enforcement of the said foreign judgment be
filed? (5%)
(b) the award of back rentals in the amount of P500,000.00 is beyond the
MTC’s jurisdiction. Decide. (5%)
The regional trial court has jurisdiction over cases seeking enforcement of
foreign judgments
(a) non-referral of the dispute to the Lupon
Mijares v Ranada
Referral to the Lupon is required only where the parties are individuals or a
single human being as contrasted with a social group or institution. It does
Atty: still file with RTC because not anymore litigating there the very liability
not apply to cases involving juridical persons. In this case, one party is a
upon which the judgment was rendered. Only prove there is the existence of
corporation, a juridical entity, hence, referral to the Lupon is not required
judgment by foreign cour
prior to the filing of the case in Court.

Vda de Borromeo v. Pogoy

11. Plaintiff, a Manila resident, sued the defendant, a resident of Malolos,
Bulacan, in the RTC-Manila for a sum of money. When the sheriff tried to
serve the summons and the complaint on the defendant at his Bulacan
residence, the sheriff was told that the defendant had gone to Manila for
business and would not be back until the evening of that day. So, the sheriff
served the summons, together with a copy of the complaint, on the
defendant’s 12-year-old daughter residing thereat. For failure to answer the
complaint, the trial court, on motion of plaintiff, declared defendant in default
and thereafter rendered default judgment ordering defendant to pay the
entire amount prayed for in the complaint. Six years after the entry of
judgment, the plaintiff filed an action for revival of judgment. May the
defendant raise the defence and successfully oppose the revival action on
the ground that the judgment is null and void because the RTC-Manila never
acquired jurisdiction over his person due to improper substituted service of
summons? (5%)
12. Pedro filed a petition for declaration of the nullity of his marriage to
Carmela because of the alleged psychological incapacity of the latter. After
trial, the court rendered judgment dismissing the petition on the ground that
Pedro failed to prove the psychological incapacity of his wife. The judgment
having become final, Pedro filed another petition, this time on the ground
that his marriage to Carmela had been celebrated without a license. Is the
second action barred by the judgment in the first? (5%)
No, the first action filed by Pedro based on psychological incapacity does
not constitute a bar to the second action based on the lack of a marriage
license. Although res judicata is present in this case, it is only in the second
aspect of res judicata, which is conclusiveness of judgment since there is
only identity of parties and identity of subject matter but not identity of cause
of action.
For res judicata in the aspect of bar by former judgment to take place, the
three must all concur.
Rule 39:
Section 47. Effect of judgments or final orders. — The effect of a judgment
or final order rendered by a court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect
to the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or status of
a particular person or his relationship to another, the judgment or final order
is conclusive upon the title to the thing, the will or administration or the
condition, status or relationship of the person, however, the probate of a will
or granting of letters of administration shall only be prima facie evidence of
the death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect to the matter
directly adjudged or as to any other matter that could have been missed in
relation thereto, conclusive between the parties and their successors in
interest, by title subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same title and in the
same capacity; and
(c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former judgment or
final order which appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary thereto. (49a)
13. In putting up his new factory, Daniel acquired on credit certain heavy
machineries from ABC Co with chattel mortgage thereon. The machineries
were imbedded in the ground inside Daniel’s factory. When Daniel defaulted
in his payment, ABC Co. brought an action for recovery the machineries with
application for writ of replevin. In his answer Daniel mainly alleged
prematurity in that ABC Co. had granted him an extension of time to settle
his obligation. As the judge, would you issue the replevin? (5%)
No, I would not issue the replevin. Replevin is a provisional remedy which
allows for the plaintiff to take possession of the personal property in an action
for the recovery of the same.
In this case, the machineries have been firmly imbedded into the ground,
thus making them form part of the real property of Daniel. This is pursuant
to the civil code of the Philippines which provides that among those
immovable or real properties are those which have been attached to
immovable property in such a way that they cannot be removed without
breaking the property to which it is attached.
Thus, since the machineries are real property and not personal property,
they cannot be subject of a writ of replevin.
Article 415. The following are immovable property:
(3) Everything attached to an immovable in a fixed manner, in such a way
that it cannot be separated therefrom without breaking the material or
deterioration of the object;
(5) Machinery, receptacles, instruments or implements intended by the
owner of the tenement for an industry or works which may be carried on in
a building or on a piece of land, and which tend directly to meet the needs
of the said industry or works;
RULE 60
Replevin
Section 1. Application. — A party praying for the recovery of possession of
personal property may, at the commencement of the action or at any time
before answer, apply for an order for the delivery of such property to him, in
the manner hereinafter provided.
14. A judgment rendered by the trial court ordering defendant to pay plaintiff
the unpaid loan of Php500,000.00. Defendant appealed the judgment while
plaintiff seasonably filed a motion for execution pending appeal which the
trial court granted after positing of a bond and upon good reasons stated in
the order. However, with the defendant’s filing of a sufficient supersedeas
bond, the trial court lifted the order of execution pending appeal. In due time
the appellate court affirmed the trial court’s decision. When the judgment
became final and executor, Pedro moved to enforce the money judgment
against the supersedeas bond. Defendant’s bondsman opposed the motion
contending that the application for damages against the supersedeas bond
should have been filed with the appellate court before the judgment became
executor pursuant procedure in Sec. 20, Rule 57. Resolve. (5%)
The provisions of Rule 57 regarding the collection of damages from the bond
apply to other provisional remedies. The rule provides that the damages
must be claimed in the same action before the trial or before the appeal is
perfected or before the judgment becomes executory.
In this case, Pedro moved to enforce the money judgment on the
supersedeas bond after the case had already become final and executory.
Thus, his motion must be denied.
Recovering damages on an applicant’s bond
Requirements
a. The defendant claimant has secured a favorable judgment the main
action, meaning that the plaintiff has no cause of
action and was not entitled to the replevin;
b. The application for damages, showing claimant’s right thereto and the
amount thereof, be filed in the same action before trial or before appeal is
perfected or before the judgment becomes executory;
c. Due notice be given to the other party and his surety or sureties, notice to
the principal
not being sufficient;
d. A proper hearing and the award for damages should be included in the
final judgment.
[DBP v. Carpio, G.R. No. 195450 (2017)]
Note: DBP v. Carpio states that the same requirements apply when
recovering damages under other provisional remedies, as provided in Sec.
20, Rule 57; Sec. 8, Rule 58 and Sec. 9, Rule 59.
Section 20. Claim for damages on account of improper, irregular or
excessive attachment. — An application for damages on account of
improper, irregular or excessive attachment must be filed before the trial or
before appeal is perfected or before the judgment becomes executory, with
due notice to the attaching party and his surety or sureties setting forth the
facts showing his right to damages and the amount thereof. Such damages
may be awarded only after proper hearing and shall be included in the
judgment on the main case.
If the judgment of the appellate court be favorable to the party against whom
the attachment was issued he must claim damages sustained during the
pendency of the appeal by filing an application in the appellate court, with
notice to the party in whose favor the attachment was issued or his surety or
sureties, before the judgment of the appellate court becomes executory. The
appellate court may allow the application to be heard and decided by the
trial court.
Nothing herein contained shall prevent the party against whom the
attachment was issued from recovering in the same action the damages
awarded to him from any property of the attaching party not exempt from
execution should the bond or deposit given by the latter be insufficient or fail
to fully satisfy the award. (20a)
MIDTERMS 2016
Discuss the accuracy of the following statements:
1. An action for annulment of extrajudicial settlement and partition of real
property with assessed value of P15,000, the complaint alleging that plaintiff
is a legal heir who has been excluded by the defendants, his co-heirs, from
participating in the extrajudicial settlement of the estate of their deceased
parents, thereby depriving him of his lawful participation in the said property,
is cognizable by the MTC.
False. This is an action incapable of pecuniary estimation. A party’s cause
of action is determined by the allegations of his complaint. The allegations
in this case point to the fraudulent act of the co-heirs in excluding the plaintiff
in the extrajudicial settlement, which naturally would result in the plaintiff
asking for the annulment of the said document. This case is thus cognizable
and within the exclusive and original jurisdiction of the RTC.
(BP 129) Section 19. Jurisdiction in civil cases. – Regional Trial Courts shall
exercise exclusive original jurisdiction:
(1) In all civil actions in which the subject of the litigation is incapable of
pecuniary estimation
2. When an amended counterclaim is filed by leave of court, the defending
party may be declared in default if he fails to answer it within the period fixed
by law.
False. Rule 11, Section 3 of the Rules of Court states that an answer earlier
filed may serve as the answer to the amended complaint if no new answer
is filed if the filing is by leave of court.
Section 3. Answer to amended complaint. — When the plaintiff files an
amended complaint as a matter of right, the defendant shall answer the
same within thirty (30) calendar days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the
amended complaint within fifteen (15) calendar days from notice of the order
admitting the same. An answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended
cross- claim, amended third (fourth, etc.)-party complaint, and amended
complaint-in-intervention.
3. A suit against an employer for subsidiary liability under Art 103 of the RPC
due to his driver’s insolvency to pay the civil damages arising from the latter’s
conviction for homicide thru reckless imprudence, may be abated on the
ground of litis pendentia if another civil action is pending against same
employer for quasi delict arising from the same negligent act of his driver.
False. The elements of litis pendentia are as follows:
1) Identity of parties in the two actions
2) Identity of rights asserted and reliefs prayed for
3) Any judgment rendered in one action will, regardless if one party
is successful, will always amount to res judicata in the other
The elements were not satisfied in this case so as to properly invoke litis
pendentia because there is no identity of rights in this case - one being
predicated on subsidiary liability and the other on quasi-delict.
(Source: Example lang ni sir - Page 43 & 44 of midterms reviewer)
4. A defendant in default cannot testify as a witness because he has ceased
to have any legal standing to participate in the trial.
- See 4 of Midterms 2010
5. A court cannot award damages in excess of or different in kind from that
prayed for in the complaint.
- See 5 of Midterms 2010
6. The court on its own initiative may dismiss a case for improper venue if
the same is apparent on the face of the complaint.
False. In a civil case, venue can be waived; therefore, the court cannot
dismiss motu proprio a case for improper venue, even if the same is
apparent on the face of the complaint, if the defendant does not file an
objection. It is only the defendant who can waive it.
Dacoycoy v. IAC
Thus, unless and until the defendant objects to the venue in a motion to
dismiss, the venue cannot be truly said to have been improperly laid, as for
all practical intents and purposes, the venue, though technically wrong, may
be acceptable to the parties for whose convenience the rules on venue had
been devised. The trial court cannot pre-empt the defendant's prerogative to
object to the improper laying of the venue by motu proprio dismissing the
case.”
7. An answer belatedly field cannot be admitted and the court upon plaintiff’s
motion has to declare the defendant in default.
False. An answer may be admitted even if filed out of time as long as it is
before a declaration of default and no prejudice is caused to the plaintiff. The
court upon mere plaintiff’s motion should not declare the defendant in
default. There should also be notice to the defending party, and proof of such
failure and not just a motion in order to declare the defendant in default.
Sablas v. Sablas
Where the answer is filed beyond the reglementary period but before the
defendant is declared in default and there is no showing that defendant
intends to delay the case, the answer should be admitted.
Section 3. Default; Declaration of. — If the defending party fails to answer
within the time allowed therefor, the court shall, upon motion of the claiming
party with notice to the defending party, and proof of such failure, declare
the defending party in default.
8. An action for reconveyance of real property with an assessed value of
P20,000.00 which at the same time seeks to recover P500,000.00 as
plaintiff’s share in the fruits of the property should be filed with the RTC.
True. Where the causes of action are between the same parties but pertain
to different venues or jurisdictions, the joinder may be allowed in the RTCt
provided one of the causes of action falls within the jurisdiction of said court
and the venue lies therein. In this case, while the action for reconveyance of
real property with an assessed value of P20,000 is within the jurisdiction of
the MTC, the action to recover the P500,000 share in the fruits of the
property is within the jurisdiction of the RTC. Hence, applying the rule on
joinder of causes of action, the case can be filed in the RTC.
Section 5. Joinder of causes of action. — A party may in one pleading assert,
in the alternative or otherwise, as many causes of action as he may have
against an opposing party, subject to the following conditions:
(c) Where the causes of action are between the same parties but pertain to
different venues or jurisdictions, the joinder may be allowed in the Regional
Trial Court provided one of the causes of action falls within the jurisdiction of
said court and the venue lies therein;
9. No foreign private juridical entity with no license to do business in the
Philippines can sue or be sued in our courts.
False. It is not the lack of license to do business in the Philippine but the
doing of business without a license in the Philippines that bars a foreign
corporation from having access to our courts. Hence, a foreign private
juridical entity with no license to do business in the Philippines can sue or
be sued under the isolated transaction rule, which allows such entities to sue
without a license if it is not doing business in the Philippines.
Hang Lung Bank v. Saulog
It is not the lack of the prescribed license (to do business in the Philippines)
but doing business without license, which bars a foreign corporation from
access to our courts. A foreign corporation not licensed to do business in the
Philippines may not be denied the right to file an action in our courts for an
isolated transaction in this country.
10. In an action to recover a sum of money based on a promissory note, an
objection to prove the special defense of illegality of consideration must be
sustained if defendant’s answer is unverified.
True. Even if the effect of the defendant’s answer being unverified is a
technical admission of the genuineness and due execution of the promissory
note, the special defense of illegality of consideration is not inconsistent with
the genuineness and due execution of said instrument.
Hibberd vs Rhode
Any defense of new matter, such as payment where nonpayment is alleged,
the statute of limitations, illegality of consideration, etc., may be under a
proper plea to that effect, notwithstanding the failure of the party charged to
enter a verified denial of the genuineness and due execution of the
document declared upon.
11. SAME LANG SA 11 MIDTERMS 2010
12. SAME LANG SA 12 MIDTERMS 2010
13. SAME LANG SA 13 MIDTERMS 2010
14. An action upon a contract containing a stipulation that “venue of all
actions arising from this agreement should be filed ONLY and
EXCLUSIVELY in the courts of Quezon City” can be properly joined in
one complaint with another action for collection of PHP1M filed in RTC
of Manila by the same plaintiff against the same defendant who are
both residents of Manila.
Yes, the complaint may be joined in one with another action involving
the same plaintiff and same defendant. In joinder of causes of action,
a party may assert as many causes of action as he may have against
an opposing party subject to the conditions that the party joining the
causes comply with the rules on joinder of parties, joinder does not
include special civil actions, the claims in all causes are for recovery of
money, and for those pertaining to different venues or jurisdiction the
RTC may have jurisdiction as long as one cause falls within its
jurisdiction. In this case, the conditions for proper joinder of causes of
action are present. Venue stipulation is immaterial as for such to be
valid, it must be restrictive.
Rule 2 Sec. 5 Joinder of causes of action
party may in one pleading assert, in the alternative or otherwise, as
many causes of action as he may have against an opposing party,
subject to the following conditions:
(a) The party joining the causes of action shall comply with the rules on
joinder of parties;
(b) The joinder shall not include special civil actions or actions governed
by special rules;
(c) Where the causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be allowed
in the Regional Trial Court provided one of the causes of action falls
within the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes action are principally for recovery
of money, the aggregate amount claimed shall be the test of
jurisdiction.
Unimasters vs. CA
Absent additional words and expressions definitely and unmistakably
denoting the parties' desire and intention that actions between them
should be ventilated only at the place selected by them.
“Shall” would NOT anymore suffice to indicate that stipulation is
restrictive / exclusive
Rule 4, Sec. 4
This Rule [on venue] shall not apply.
(a) In those cases where a specific rule or law provides otherwise; or
 (b) Where the parties have validly agreed in writing before the filing of
the action on the exclusive venue thereof.
15. A non-resident foreign juridical entity cannot be sued in our courts
if the action is one in personam because extraterritorial service of
summons is allowed only in actions in rem/quasi-in rem
No, a non-resident foreign juridical entity may be sued in our courts
regardless of whether the action is in personam, in rem, or quasi-in rem.
The law provides for rules on service upon foreign juridical entities such
as those not registered but has transacted / doing business IN the
Philippines which follows modes of extraterritorial service, i.e. personal,
publication, facsimile, electronic means, and other means as
authorized by the court.
Rule 14 Sec. 14 – Service upon foreign private juridical entities
If the foreign private juridical entity is not registered in the Philippines,
or has no resident agent but has transacted or is doing business in it,
as defined by law, such service may, with leave of court, be effected
outside of the Philippines through any of the following means:
(a) By personal service coursed through the appropriate court in the
foreign country with the assistance of the department of foreign affairs;
(b) By publication once in a newspaper of general circulation in the
country where the defendant may be found and by serving a copy of
the summons and the court order by registered mail at the last known
address of the defendant;
(c) By facsimile;
(d) By electronic means with the prescribed proof of service; or
(e) By such other means as the court, in its discretion, may direct..
16. The plaintiff’s failure to comply with a court order to implead a necessary
party is a ground for the dismissal of the case pursuant to Sec. 3, Rule 17.
False. The non-inclusion of a necessary party has only the effect of a waiver
of the claim of the plaintiff against such necessary party, pursuant to Section
9 of Rule 3 of the Rules Of court.
Section 9. Non-joinder of necessary parties to be pleaded. — Whenever in
any pleading in which a claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall state why he is omitted.
Should the court find the reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if jurisdiction over his person
may be obtained.
The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (8a, 9a)
17. When notice is given that defendant is already deceased as of the filing
of the complaint together with the names and addresses of his
representatives, the court will order said representatives to appear within 30
days from notice to be substituted for the deceased.
True. Upon the death of the plaintiff, it is the duty of the latter’s counsel to
inform the court of such death and to inform the court of the plaintiff’s legal
representatives. The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty (30)
days from notice.
Section 16. Death of party; duty of counsel. — Whenever a party to a
pending action dies, and the claim is not thereby extinguished, it shall be the
duty of his counsel to inform the court within thirty (30) days after such death
of the fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply with his duty
shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or administrator
and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives
to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or
if the one so named shall fail to appear within the specified period, the court
may order the opposing party, within a specified time to procure the
appointment of an executor or administrator for the estate of the deceased
and the latter shall immediately appear for and on behalf of the deceased.
The court charges in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs. (16a, 17a)
18. All actions for annulment of judgment is within the exclusive original
jurisdiction of the Court of Appeals.
False. Actions to annul judgments of the Regional Trial Court are within the
exclusive original jurisdiction of the Court of Appeals. On other other hand,
actions to annul judgments of the Metropolitan Trial Courts are within the
exclusive jurisdiction of the Regional Trial Courts.
Rule 47, ROC:
Section 1. Coverage. — This Rule shall govern the annulment by the Court
of Appeals of judgments or final orders and resolutions in civil actions of
Regional Trial Courts for which the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner. (n)
XXXXX
Section 10. Annulment of judgments or final orders of Municipal Trial Courts.
— An action to annul a judgment or final order of a Municipal Trial Court
shall be filed in the Regional Trial Court having jurisdiction over the former.
It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9
of this Rule shall be applicable thereto. (n)
19. If the parties to the dispute are not residents of the same city or
municipality, there can be no referral to the dispute to the Lupon for
conciliation.
False. Even if the parties to the dispute are not residents of the same city or
municipality, referral to the lupon can still be had if the cities or municipalities
in which they reside are adjoining and if they agree to submit the dispute for
conciliation with the appropriate lupon.
Section 408. Subject Matter for Amicable Settlement; Exception Thereto. -
The lupon of each barangay shall have authority to bring together the parties
actually residing in the same city or municipality for amicable settlement of
all disputes except:
(f) Disputes involving parties who actually reside in barangays of different
cities or municipalities, except where such barangay units adjoin each other
and the parties thereto agree to submit their differences to amicable
settlement by an appropriate lupon;

20. A compulsory counterclaim should be answered.

False. A compulsory counterclaim is contained in an answer by the

defendant. As a result, the permissive counterclaim is deemed automatically
controverted.
A plaintiff who fails or chooses not to answer a compulsory counterclaim
may not be declared in default, principally because the issues raised in the
counterclaim are deemed automatically joined by the allegations in the
complaint [Gojo v. Goyala, G.R. No. L-26768 (1970)].