CIVIL PROCEDURE TIPS
1. A and B resides in different barangay. A filed an action for
collection of sum of money. B Filed a motion to dismiss for failure
to comply with condition precedent. Is the contention valid?Yes.
The motion denied. This one falls under the exception of Barangay
Conciliation proceedings. However if such barangay units adjoin
each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon.2.
Purposes of Barangay concillation-1. Reduce the number of court
litigations / reduce court dockets2. Prevent deterioration of the
quality of justice, brought about by the indiscriminate filing of
cases in court3. Other instances where the party can go directly to
court without going to barangay conciliation-1. Where the accused
is under detention2. Where the accused has otherwise been deprived
of personal liberty calling for habeas corpus proceedings3. Where
actions are coupled with provisional remedies4. Where the action
may otherwise be barred by the statute of limitations4. Is right to
barangay conciliation transmissible? No. It is a personal right.
Thus, if an action is already filed in court without barangay
conciliation, and the plaintiff died, the heirs cannot anymore
demand for barangay conciliation. 5. Period for execution of
amicable settlement in barangay-The amicable settlement or
arbitration award may be enforced by execution within one (1) year
from the date of the settlement. After the lapse of such time, the
settlement may be enforced by action in the appropriate
city/municipal court. (If does not exceed 100k, the enforcement is
under Small claims in MTC)NOTE: If the case was dismissed based on
lack of barangay conciliation, the same must be keep on the
records, and the party may revive the case within 15 days of
dismissal. 6. In case of foreclosure of real estate mortgage, and
the mortgagee died, what the court will do?The court will order
substitution of heirs because the action is a real action and
survives even after the death of plaintiff. 7. Two concept of
res-judicata-Conclusiveness of judgment and barred by prior
judgment. Distinguish it. 8. Where is the venue for personal
action-?Where the plaintiff or any of the principal plaintiff
resides or where the defendant or any of the principal defendant
resides. 9. In case of foreclosure and the mortgagor filed a
petition for foreclosure and an action for collection for sum of
money, what is the remedy for the mortgagee-defendant?File a motion
to dismiss in one latter case based on litis penentia because the
two action is based on same cause of action.10. What is one-day
one-witness ruleThe One-Day Examination of Witness Rule, that is, a
witness has to be fully examined in one (1) day only, shall be
strictly adhered to subject to the courts discretion during trial
on whether or not to extend the direct and/or cross-examination for
justifiable reasons.11. What are the material dates for purposes of
filing of appeal?1. when notice of the judgment or final order or
resolution subject thereof was received, 2. when a motion for new
trial or reconsideration, if any, was filed and 3. when notice of
the denial thereof was received;12. What are the grounds for
annulment of judgment?The annulment may be based only on the
grounds of extrinsic fraud and lack of jurisdiction.Extrinsic fraud
shall not be a valid ground if it was availed of, or could have
been availed of, in a motion for new trial or petition for
relief.13. The RTC approved the petition for expropriation, what is
the remedy for the respondent?A final order sustaining the right to
expropriate the property may be appealed by any party aggrieved
thereby (Rule 41 to CA within 15 days, and 30 days if there is
multiple appeals). Such appeal, however, shall not prevent the
court from determining the just compensation to be paid.14. Remedy
if after expropriation and no payment is madeRecovery of the
property within 5 years of non payment15. What is the remedy is the
case is dismissed without prejudice?Refile the case. 16. Note
special appearance, a motion to dismiss based on lack of
jurisdiction does not amount to voluntary appearance. Therefore,
the lack of jurisdiction over the person of the defendant is not
cured. 17. Action for foreclosure is a real action and quasi-in-rem
at the same time18. What are the six kinds of contempt?In and out,
civil and criminal, direct and indirect. 19. Doctrine of
immutability of judgment A judgment once become final and executory
cannot be altered or modified anymore even the same was erroneous
except for correction of clerical judgment. 20. Appellate
jurisdiction of CA1. Civil Service Commission2. Security and
exchange commission3. Office of the President4. Land Registration
Authority5. Social Security Commission6. Civil Aeronautics Board7.
Bureau of Patents and Trademarks and Technology Transfer8. National
Electrification Administrations9. Energy Regulatory Board10.
National Telecommunication Commission11. Department of Agrarian
Reform12. Government Service Insurance System13. Employees
Compensation Commission14. Agricultural Inventions Board15.
Insurance Commission16. Philippine Atomic Energy Commission17.
Board of Investments18. Construction Industry Arbitration
Commission19. Voluntary Arbitration20. Decision of OMB in
administrative cases, OMB vs Liggayu
21. Grounds for New Trial under Rule 53 vis-a-viz 37?Rule 37
(New Trial)Rule 53 ( New Trial )
a) Available only in the trial courts, RTC, MTC, MCTTCb)
Provides ground for FAMEc) Shall be resolved within 30 days from
the date it was submitted for resolutiona) Available only in
appellate courts, CAb) Grounded only on newly discovered evidencec)
Shall be resolved within 90 days when the court declares it
submitted for resolution
22. Effect of foreign judgment?The effect of a judgment or final
order of a tribunal of a foreign country, having jurisdiction to
render the judgment or final order is as follows:In case of a
judgment or final order upon a specific thing, The judgment or
final order, is conclusive upon the title to the thing, andIn case
of a judgment or final order against a person, The judgment or
final order is presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title.In
either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. Sec. 48, Rule
39. 23. Remedy in case of order of default?Remedies:After notice of
order of default but before judgment:a. Motion to lift order of
default based on FAME and that he has meritorious defensei. Granted
file an answerii. Denied MR, then Rule 65.
After judgment but before it become final and executory Motion
for new trialAfter judgment and already becomes final and
executoryPetition for relief of judgmentAction for nullity of
judgmentPetition for certiorari under Rule 65
24. Remedy in case of decision of NLRC?Petition for certiorari
before Court of Appeals (St. Martin Case)25. Declaratory reliefa)
Who may file the actionWho may file petition. 1. Any person
interested under a deed, will, contract or other written
instrument, or 2. Whose rights are affected by a statute, executive
order or regulation, ordinance, or any other governmental
regulation Before breach or violation thereof, they may: 1. Bring
an action in the appropriate Regional Trial Court 2. To determine
any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder. (Bar Matter No.
803, 17 February 1998)
26. Quo warrantoQuo warranto is a demand made by the state upon
some individual or corporation to show by what right they exercise
some franchise or privilege appertaining to the state which,
according to the Constitution and laws they cannot legally exercise
by virtue of a grant and authority from the State.a) Distinguish
from quo warranto in the Omnibus Election CodeQuo Warranto Rule
66Quo Warranto, Election Code
The subject position is appointive officeSubject position is
elective office
The issue is the legality of the occupancy of the office by
virtue of a legal appointmentGrounds relied upon are:
(a) ineligibility to the position; or (b) disloyalty to the
Republic
Petition is brought either to the Supreme Court, the Court of
Appeals or the Regional Trial Court;May be instituted with the
COMELEC by any voter contesting the election of any member of
Congress, regional, provincial or city officer; or to the MeTC, MTC
or MCTC if against any barangay official;
Filed within one (1) year from the time the cause of ouster, or
the right of the petitioner to hold the office or position
arose;
Filed within ten (10) days after the proclamation of the results
of the election;
Petitioner is entitled to a officePetition may be a voter not
entitled not the office
Commencement of Quo WarrantoAn action for the usurpation of a 1.
public office,2. position or 3. franchise
May be commenced by a verified petition brought in the name of
the Republic of the Philippines against:
a. A person who usurps, intrudes into, or unlawfully holds or
exercises a public office, position or franchise;b. A public
officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
27. Effect of lack of certification against forum shoppingNon
compliance with certification of Non-Forum ShoppingFailure 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.The submission of
a false certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of court,
without prejudice to the corresponding administrative and criminal
actions. Willful non-complianceIf the acts of the party or his
counsel clearly constitute willful and deliberate forum shopping,
the same shall be ground for summary dismissal with prejudice and
shall constitute direct contempt, as well as a cause for
administrative sanctionsNOTE: Only the plaintiff can sign the
certification against forum shopping. The counsel cannot sign it.
Exception: If the plaintiff is a corporation and the counsel is
duly authorized28. Dismissal by plaintiff; if failed to appear in
pre-trialIf without fault of plaintiff, no prejudice until two
dismissal. If with fault, it is considered as adjudication on
merits.If plaintiff fails to appear in pre-trial, 1. He will be
declared non-suited2. It will cause dismissal of the action, a.
with prejudice, b. unless provided by the court.
The dismissal is without prejudice to the counter claim raised
by the defendant which can be prosecuted in another case. 29. A
filed a real action against B but there is no valid service of
summons. A failed to prosecute the action for period of 2 years,
and thus the case is dismissed. After a year of dismissal, A again
filed the same case against B. B filed a motion to dismissed based
on barred by prior judgment. Is it tenable? No. There is no valid
service of summons, and therefore, the former case does not involve
the same parties. Thus, bar by prior judgment cannot attach. 30.
Remedy in case of decision in small claims cases?The decision shall
be final and unappealable. Remedy is Rule 65 before RTC if there is
grave abuse of discretion and plus prayer for injunction. 31. What
is two-dismissal ruleA notice operates as an adjudication upon the
merits when filed by a plaintiff who has once dismissed in a
competent court an action based on or including the same claim.32.
What is a motion?Motion - A motion is an application for relief
other than by a pleading.A partys request, written or oral, to the
court for an order or other action. It shall include an informal
written request to the court, such as a letters. Rules on Small
Claims33. As a general rule, failure to comply with barangay
conciliation proceedings does not amount to motu propio dismissal,
EXCEPT IN SUMMARY PROCEEDINGS. In summary proceeding, the plaintiff
filed a motion to amend the complaint. The defendant opposed. Is it
tenable?Motion to amend is not a prohibited pleading but must be
done within the time prescribed in amendment of pleadings ( as a
matter of right, before the responsive pleading is served,
otherwise, it must be with leave of court ) not sure about my
answer though. Hehe. Goodluck!!!!7 | Page
