100% found this document useful (3 votes)

4K views295 pages

Almost

This document contains sample bar exam questions on civil procedure from 1987 to 2018. The questions cover various topics like jurisdiction, remedies, rules of procedure. One question asks about the jurisdiction over a case involving ejectment of a resident. Another asks about compelling a company to hold its annual stockholders meeting. A third involves the assessment of filing fees and a motion to dismiss. Throughout the questions, suggested answers are provided explaining the application of different rules and doctrines of civil procedure.

Uploaded by

Liam Lacayanga

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as DOCX, PDF, TXT or read online on Scribd

100% found this document useful (3 votes)

4K views295 pages

Almost

Uploaded by

Liam Lacayanga

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as DOCX, PDF, TXT or read online on Scribd

You are on page 1/ 295

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

RULE 1 GENERAL PROVISIONS

I.
Danielle, a filipino citizen and permanent resident of milan, italy, filed with the regional
trial court (rtc) of davao city, where she owns a rest house, a complaint for ejectment
against dan, a resident of barangay daliao, davao city. Danielle's property, which is
located in digos city, davao del sur, has an assessed value of php 25,000. Appended to
the complaint was danielle's certification on non-forum shopping executed in davao city
duly notarized by atty. Dane danoza, a notary public.
(a) was there a need to refer the case to the lupong tagapamayapa for
prior barangay conciliation before the court can take cognizance of the case?
(2.5%)
(b) was the action properly instituted before the rtc of davao city?
(c) should the complaint be verified or is the certification sufficient? (2018)

Suggested answer:
(a) No. Since danielle is not an actual resident of barangay daliao, or a
barangay adjacentthereto, this case is not subject to the katarungang
pambarangay law. Hence, prior referral to the lupon ng tagamayapa is not
a pre-condition to the filing of this case in court. (pascual v. Pascual, g.r.
No. 157830, 17 november 2005)

(b) No. Batas pambansa blg. 129 vests the municipal trial court with the
exclusive jurisdiction over unlawful detainer caese, regardless of the
assessed value of the property. Hence, the action was wrongfully
instituted with the rtc.

(c) Yes. Considering that the action is for unlawful detainer, the rules on
summary procedure will apply. Rule ii, section 3(b) of the rules on
summary procedure require that all pleadings submitted to the court be
verified. Hence, a mere certification is insufficient.

Dendenees inc. And david, both stockholders owning collectively 25% of darwinkle
inc., filed an action before the rtc of makati to compel its board of directors (bod) to
hold the annual stockholders' meeting (asm) on june 21, 2017, as required by
darwinkle inc. 'S by-laws, with prayer for preliminary mandatory injunction to use
as record date april 30, 2017. The complaint alleged, among others, that the
refusal to call the asm on june 21, 2017 was rooted in the plan of the bod to allow
databank inc. (which would have owned 50% of darwinkle inc. After july 15, 2017)
to participate in the asm to effectively dilute the complainants' shareholdings and
ease them out of the bod. Dendenees inc. And david paid the amount of php 7 ,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

565 as filing fees based on the assessment of the clerk of court. The bod filed a
motion to dismiss on the ground of lack of jurisdiction. They averred that the filing
fees should have been based on the actual value of the shares of dendenees inc.
And david, which were collectively worth php 450 million.
If you were the judge, will you grant the motion to dismiss? (2018)

Suggested answer:
No. Jurisdiction over the subject matter of a case is conferred by law and
determined by the allegations in the complaint which compromise a concise
statement of the ultimate facts constituting the plaintiff’s cause of action.
(padlan v. Dinglasan, et al., g.r> no. 180321, 20 march 2013)
In this case, the allegation in the complaint shows that the cause of action is
to compel the darwinkle inc.’s board of directors to hold the annual
stockholders’ meeting on june 21, 2017. This is a cause of action incapable
of pecuniary estimation, such that the filing fees therefor under rule 141 of
the rules of court does not pertain to the “actual value of the shares of
denees inc. And david” as alleged in the motion to dismiss. Hence, the
motion should be denied.

Incapable of pecuniary estimation (2017)

What trial court outside metro manila has exclusive original jurisdiction over the
following cases? Explain briefly your answers.
(a) an action filed on november 13, 2017 to recover the possession of an
apartment unit being occupied by the defendant by mere tolerance of the plaintiff,
after the former ignored the last demand to vacate that was duly served upon-and
received by him on july 6, 2016.(2.5%)

Suggested answer:
(a) it depends. The instant action is an accion publiciana considering that more
than a year has lapsed from the date of last demand (natalia realty, inc. V. Ca, g.r.
No. 126462, november 12, 2002; penta pacific realty corporation v. Ley
construction and development corpora tion, g.r. No. 161589, november 24, 2014).
Thus, if the assessed value of the apartment unit does not exceed p20,000.00, the
municipal trial court has the exclusive original jurisdiction over the action (penta
pacific realty corporation, supra; bp big. 129. Sec. 1).
On the other hand, if the assessed value of the apartment unit exceeds
p20,000.00, the regional trial court has the exclusive original jurisdiction over the
action (penta pacific realty corporation, supra; bp blg. 129, sec. 19). The allegation
of the assessed value of the apartment unit must be found in the complaint,
otherwise the action should be dismissed for lack of jurisdiction because the trial
court is not thereby afforded the means of determining from the allegations of the
pleading whether jurisdiction over the subject matter of the action pertains to it or
to another court (penta pacific realty corporation, supra).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Alternative answer:
(b) a complaint in which the principal relief sought is the enforcement of a seller’s
contractual right to repurchase a lot with an assessed value of p15,000.00: (2.5%).
Suggested answer
1. (b) the regional trial court has the jurisdiction over an action in which the
principal relief sought is the enforcement of a seller’s contractual right to
repurchase a lot. Since said action is one for specific performance to enforce a
contractual right, it is incapable of pecuniary estimation and therefore cognizable
by the regional trial court (surviving heirs of bautista v. Lindo; g.r. No. 208232,
march 10, 2014; bp blg. 129, sec 19).
Jurisdiction of rtc (2017)
Santa filed against era in the rtc of quezon city an action for specific performance
praying for the delivery of a parcel of land subject of their contract of sale.
Unknown to the parties, the case was inadvertently raffled to an rtc designated as
a special commercial court. Later, the rtc rendered judgment adverse to era, who,
upon realizing that the trial court was not a regular rtc, approaches you and wants
you to file a petition to have the judgement annulled for lack of jurisdiction.”
What advice would you give to era? Explain your answer. (4%)

Suggested answer:
I will advise era that a petition to have the judgment annulled for lack of
jurisdiction has no basis. In gonzales v. Gjh land, inc. (g.r. No. 202664
november 10, 2015), the supreme court ruled that the fact that a particular
branch which tras been designated as a special commercial, court does not
shed the rtc’s general jurisdiction over ordinary civil cases under the
imprimatur of statutory law, l.e. Batas pambansa blg. 129. The designation of
special commercial court was merely intended as a procedural tool to
expedite the resolution of commercial cases in line with the court’s exercise
of jurisdiction. This designation was not made by statute but only by an
internal supreme court rule under its authority to promulgate rules governing
matters of procedure and its constitutional mandate to supervise lower
courts.

Alternative answer:
I will advise era that a petition for annulment of judgment is untenable, i will
tell era that the available post-judgment remedies could be any of the
following depending upon the date of his receipt of the judgment: motion for
reconsideration, appeal, petition for relief from judgment, or certiorari.
The regional trial court, despite its having been designated as special
commercial court remains possessed of authority as a court of general
jurisdiction to pass upon all kinds of cases, whether civil or criminal. The
constitution vests not only in the supreme court, but in all regional trial
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

courts, the judicial power to determine what are the valid and binding laws
by the criterion of their conformity to the fundamental law (jesus c. Garcia v.
The hon. Kay alan t. Drilon, gr no 179267, june 25, 2013). The designation of
the court as a special commercial court is an internal arrangement for lower
courts-that could be allowed by the supreme court, with the office of the
court administrator as the implementing arm, with the purpose of giving
priority to commercial cases on top of the trial court’s regular cases.

Hierarchy of courts (2017)

Give brief answers to the following:
1. What is the doctrine of hierarchy of courts? (2%)
Suggested answer
(a) the doctrine of hierarchy of courts, as a rule, requires that recourse must be first
made to the lower-ranked courts exercising concurrent jurisdiction with a higher
court (dio v. Subic bay marine exploration, inc., g.r. No. 189532. June 11, 2014).
(b) what is the harmless error rule in relation to appeals? (2%)
Suggested answer:
(b) under rule 51, section or of the rules of court the harmless error rule states that
no error in either the admission or the exclusion of evidence and no error or defect
in any ruling or order or in anything done or omitted by the trial court or by any of
the parties is a ground for granting a new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless refusal to take such action
appears to the court to be inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or defect which does not affect
the substantial rights of the parties.
(c) – when does a public prosecutor conduct an inquest instead : of a preliminary
investigation? (2%)

Suggested answer
(c) under rule: 112, section 7 of the rules of court, a public prosecutor conducts
aquest instead of a preliminary investigation when a person is lawfully arrested
without an arrest warrant involving an offense which requires a preliminary
investigation.
Venue of actions (2017)
After working for 25 years in the middle east, evan returned to the philippines to
retire in manila, the place of his birth and childhood. Ten years before his
retirement, he bought for cash in his name a house and lot in malate, manila. Six
months after his return, he learned that his house and lot were the subject of
foreclosure proceedings commenced by abc bank on the basis of a promissory
note and a deed of real estáte mortgage he had allegedly executed in favor of abc
bank five years earlier.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Knowing that he was not in the country at the time the promissory note and deed of
mortgage were supposedly executed, evan forthwith initiated a complaint in the rtc
of manila praying that the subject documents be declared null and void.
Abc bank filed a motion to dismiss evan’s complaint on the ground of improper
venue on the basis of a stipulation in both documents designating quezon city as
the exclusive venue in the event of litigation between the parties arising out of the
loan and mortgage.
Should the motion to dismiss of abc bank be granted? Explain your answer(5%)

Suggested answer.
No. Abc bank’s motion to dismiss should be denied in briones court of appeals (g.r.
No. 204444, january 14, 2015), the supreme court ruled that a complaint directly
assailing the validity of the written instrument itself should not be bound by the
exclusive venue stipulation contained therein and should be filed in accordance
with the general rules on venue. The supreme court ruled that it would be
inherently inconsistent for a complaint of this nature to recognize the exclusive
venue stipulation when it, in fact, precisely assails the validity of the instrument in
which such stipulation is contained.
In this case, evan’s complaint directly assails the validity of the promissory note
and deed of mortgage, which contains said venue stipulation; hence, said venue
stipulation is not binding on him. Evan correctly filed his complaint with the manila
rtc pursuant to rule of the rules of court.
Jurisdiction of the rtc (2016)
State at least five (5) civil cases that fall under the exclusive original jurisdiction of
the regional trial courts (rtc’s). (5%)

Suggested answer
The regional trial courts inter alia shall exercise exclusive original jurisdiction in the
following civil cases:

(1) in all civil actions in which the subject of the litigation is incapable of pecuniary
estimation;

(2) in all civil actions which involve the title to, or possession of, real property, or
any interest therein, where the assessed value of the property involved exceeds
twenty thousand pesos (p20,000,00) or, for civil actions in metro manila, where
such value exceeds fifty thousand pesos (p50,000.00) except actions for forcible
entry into and unlawful detainer of lands or buildings, original jurisdiction over
which is conferred upon the metropolitan trial courts, municipal trial courts, and
municipal circuit trial courts;
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(3) in all actions in admiralty and maritime jurisdiction where the demand or claim
exceeds three hundred thousand pesos (p300,000.00) or, in metro manila, where
such demand or claim exceeds four hundred thousand pesos (p400,000.00);

(4) in all matters of probate, both testate and intestate, where the gross value of
the estate exceeds three hundred thousand pesos (p300,000.00) or, in probate
matters in metro manila, where such gross value exceeds four hundred thousand
pesos (p400,000.00);

(5) in all actions involving the contract of marriage and marital relations;
(6) in all cases not within the exclusive jurisdiction of any court, tribunal, person or
body exercising jurisdiction of any court, tribunal, person or body exercising judicial
or quasi-judicial functions;

(7) in all civil actions and special proceedings falling within the exclusive original
jurisdiction of a juvenile and domestic relations court and of the court of agrarian
relations as now provided by law; and

(8) in all other cases in which the demand, exclusive of interest, damages of
whatever kind, attorney’s fees litigation expenses, and costs or the value of the
property in controversy exceeds three hundred thousand pesos (p300,000.00) or,
in such other cases in metro manila, where the demand exclusive of the above-
mentioned items exceeds four hundred thousand pesos (p400,000,00)” (section 1,
section 19 of batas pambansa blg. 129, otherwise known as the “judiciary
reorganization act of 1980).

Jurisdiction over personal/real actions (2016)

Eduardo a resident of the city of manila, filed before the regional trial court (rtc) of
manila a complaint for the annulment of a deed of real estate mortgage he signed in
favor of galaxy bank (galaxy), and the consequent foreclosure and auction sale on his
mortgaged makati property, galaxy filed a motion to dismiss on the ground of improper
venue alleging that the complaint should be filed with the rtc of makati since the
complaint involves the ownership and possession of eduardo’s lot. Resolve the motion
with reasons. (5%)
Suggested answer
The motion to dismiss should be granted. An action for nullification of the mortgage
documents and foreclosure of the mortgaged property is a real action that affects the
title to the property; thus, venue of the real action is before the court having jurisdiction
over the territory in which the property lies (jimmy t. Go v. United coconut planters bank,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

g.r. No. 156187, november 11, 2004; chua v. Total office products & services, g.r. No.
152808, september 30, 2005).
In fortune motors v. Court of appeals (g.r. No. 112191, february 7, 1997), the supreme
court also held that an action to annul a foreclosure sale of a real estate mortgage is no
different from an action to annul a private sale of real property. While it is true that
petitioner does not directly seek the recovery of title or possession of the property in
question, his action for annulment of sale and his claim for damages are closely
intertwined with the issue of ownership of the building which, under the law, is
considered immovable property, the recovery of which is petitioner’s primary objective.
The prevalent doctrine is that an action for the annulment or rescission of a sale of real
property does not operate to efface the fundamental and prime objective and nature of
the case, which is to recover said real property. It is a real action (paglaum
management & development corporation v. Union bank of the philippines, g.r.
No. 179018, june 18, 2012).
Being a real action, it shall be commenced and tried in the proper court which has
jurisdiction over the area where the real property involved. Or a portion thereof, is
situated (section 1, rule 4, rules of court). The complaint should be filed in the rtc
of makati where the mortgaged property is situated.
Alternative answer
The motion to dismiss should be denied. An action for the annulment of a real estate
mortgage is a personal action, which may be commenced and tried where the
defendant or any of the defendants resides or may be found, or where the plaintiff or
any of the plaintiffs resides or may be found, at the election of plaintiff (sec. 2, rule 4,
rules of court; chua v. Total office products & services, g.r. No. 152808, september 30,
2005; orbeta v. Orbeta, g.r. No. 166837, november 27, 2006). Since the plaintiff resides
in manila, the complaint was properly filed in rtc of manila.

Jurisdiction over subject matter (2015)

Estrella was the registered owner of a huge parcel of land located in a remote part of
their barrio in benguet. However, when she visited the property after she took

Long vacation abroad, she was surprised to see that her childhood friend, john, had
established a vacation house on her property. Both estrella and john were residents of
the same barangay.

To recover possession, estrella filed a complaint for ejectment with the municipal trial
court (mtc), alleging that she is the true owner of the land as evidenced by her
certificate of title and tax declaration which showed the assessed value of the property
as p21,000.00. On the other hand, john refuted estrella’s claim of ownership and
submitted in evidence a deed of absolute sale between him and estrella. After the filing
of john’s answer, the mtc observed that the real issue was one of ownership and not of
possession. Hence, the mtc dismissed the complaint for lack of jurisdiction.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

On appeal by estrella to the regional trial court (rtc), a full-blown trial was conducted as
if the case was originally filed with it. The rtc reasoned that based on the assessed
value of the property, it was the court of proper jurisdiction. Eventually, the rtc rendered
a judgment declaring john as the owner of the land and, hence, entitled to the
possession thereof. (4%)

(a) was the mtc correct in dismissing the complaint for lack of jurisdiction? Why or why
not?

Suggested answer:

No. The metropolitan trial court was not correct in dismissing the complaint for lack of
jurisdiction.

It is well settled that jurisdiction is determined by the allegations contained in the

complaint. The contention of defendant in his motion to dismiss has nothing to do in the
determination of jurisdiction. Otherwise, jurisdiction would become dependent almost
entirely upon the whims of the defendant (medical plaza makati condominium v. Cullen,
g.r. No. 181416, november 11, 2013).

Relative thereto, the municipal trial courts have exclusive original jurisdiction over cases
of forcible entry and unlawful detainer (section 33 of batas pambansa blg. 129). Hence,
the metropolitan trial court is not correct in dismissing the complaint for lack of
jurisdiction.

Besides, the rules allow provisional determination of ownership in ejectment cases

when the defendant raises the defense of ownership in his pleadings and the question
of possession cannot be resolved without deciding the issue of ownership (section 16,
rule 70. Rules of court).

Accordingly, the inferior courts have jurisdiction to resolve questions of ownership only
whenever it is necessary to decide the question of possession in an ejectment case
(serrano v. Spouses gutierrez, g.r. No, 162366, november 10, 2006).

(b) was the rtc correct in ruling that based on the assessed value of the property, the
case was within its original jurisdiction and, hence, it may conduct a full blown trial of the
appealed case as if it was originally filed with it? Why or why not?

Suggested answer:

No. The regional trial court was not correct.

It is settled that forcible entry and unlawful detainer cases are within the exclusive
original jurisdiction of the mtc.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Moreover, all cases decided by the metropolitan trial court are generally appealable to
the regional trial court irrespective of the amounts involved (section 22, . B.p. 129).

Alternative answer:

Assuming that estrella’s action was really for ownership and not for physical
possession, the regional trial court is correct in ruling that it was the court of proper
jurisdiction.

If an appeal is taken from an order of the lower court dismissing the case without a trial
on the merits, the regional trial court may affirm or reverse it, as the case may be. In
case of affirmance and the ground of dismissal is lack of jurisdiction over the subject
matter, the regional trial court, if it has jurisdiction there over, shall try the case on the
merits as if the case was originally filed with it. In case of reversal, the case shall be
remanded for further proceedings (section 8, rule 40, rules of court).

Since the rtc affirmed the dismissal by the mtc of estrella’s complaint on the ground of
lack of jurisdiction over the subject matter, without conducting a trial on the merits, the
rtc may conduct a full-blown trial of the appealed case from the mtc as if the same was
originally filed with it.

Jurisdiction over subject matter (2015)

of money, the aggregate amount of the claim shall be the test of jurisdiction (section
5 (d), rule 2, rules of court). Here, the total amount of the claim is p500,000.00. Hence,
the regional trial court (rtc) of manila has jurisdiction over the suit. At any rate, it is
immaterial that one of the loans is secured by a real estate mortgage because the
lender opted to file a collection of sum of money instead of foreclosure of the said
mortgage.
(b) no. The court should not dismiss the case. What determines the jurisdiction of the
court is the nature of the action pleaded as appearing from the allegations in the
complaint. The averments therein and the character of the relief sought are the ones to
be consulted (navida v. Hon. Teodoro a. Dizon, jr., g.r. No. 125078, may 30, 2011).
Accordingly, even if the defendant is able to prove in the course of the trial that a lesser
amount is due, the court does not lose jurisdiction and a dismissal of the case is not in
order (paadlan v. Dinglasan, g.r. No. 180321, march 20, 2013).

2012
Error of jurisdiction vs. Error of judgment

a. Distinguish error of jurisdiction from error of judgment. (2012)

Suggested answer:

An error of judgment is one which the court may commit in the exercise of its
jurisdiction. Such an error does not deprive the court of jurisdiction and is correctible
only by appeal; whereas an error of jurisdiction is one which the court acts without or in
excess of its jurisdiction. Such an error renders an order or judgment void or voidable
and is correctible by special civil action of certiorari, (dela cruz vs moir, 36 phil, 213;
cochingyan vs. Claribel, 76 scra 361; fortich vs. Corona, april 24, 1998, 289 scra 624;
artistica ceramica, inc. Vs. Ciudad del carmen homeowner’s association, inc., g.r. Nos.
167583-84, june 16, 2010).

2010

Jurisdiction; unlawful detainer

Anabel filed a complaint against b for unlawful detainer before the municipal trial court
(mtc) of candaba, pampanga. After the issues had been joined, the mtc dismissed the
complaint for lack of jurisdiction after noting that the action was one for accion
publiciana.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Anabel appealed the dismissal to the rtc which affirmed it and accordingly dismissed her
appeal. She elevates the case to the court of appeals, which remands the case to the
rtc. Is the appellate court correct? Explain. (2010)

Suggested answer:

yes, the court of appeals is correct in remanding the case to rtc for the latter to try the
same on the merits. The rtc having jurisdiction over the subject matter of the case
appealed from mtc should try the case on the merits as if the case was originally filed
with it, and not just to affirm the dismissal of the case.

republic act no. 7691, however, vested jurisdiction over specified accion
publiciana with courts of the first level (metropolitan trial courts, municipal trial courts,
and municipal circuit trial courts) in cases where the assessed value of the real property
involved does not exceed p20,000 outside metro manila, or in metro manila, where such
value does not exceed p50,000.00

Jurisdiction; rtc; metc

On august 13, 2008, a, as shipper and consignee, loaded on the m/v atlantis in legaspi
city 100,000 pieces of century eggs. The shipment arrived in manila totally damaged on
august 14, 2008. A filed before the metropolitan trial court (metc) of manila a complaint
against b super lines, inc. (b lines), owner of the m/v atlantis, for recovery of damages
amounting to p167,899. He attached to the complaint the bill of lading. B lines filed a
motion to dismiss upon the ground that the regional trial court has exclusive original
jurisdiction over "all actions in admiralty and maritime" claims. In his reply, a contended
that while the action is indeed "admiralty and maritime" in nature, it is the amount of the
claim, not the nature of the action, that governs jurisdiction. Pass on the motion to
dismiss. (2010)

Suggested answer:

The motion to dismiss is without merit and therefore should be denied. Courts of the first
level have jurisdiction over civil actions where the demand is for sum of money not
exceeding p300,000.00 or in metro manila, p400,000.00, exclusive interest, damages,
attorney’s fees, litigation expenses and costs: this jurisdiction includes admiralty and
marine cases. And where the main cause of action is the claim for damages, the
amount thereof shall be considered in determining the jurisdiction of the court (adm.
Circular no. 09-94, june 14, 1994)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

2009

Jurisdiction; rtc

Angelina sued armando before the regional trial court (rtc) of manila to recover the
ownership and possession of two parcels of land; one situated in pampanga, and
the other in bulacan.

May the action prosper? Explain. (2009)

Suggested answer:

No, the action may not prosper, because under rep. Act no. 7691,
exclusive original jurisdiction in civil actions which involve title to, or
possession of real property or any interest therein is determined on the
basis of the assessed value of the land involved, whether it should be
p20,000 in the rest of the philippines, outside of the manila with courts of
the first level or with the regional trial court. The assessed value of the parcel
of land in pampanga is different from the assessed value of the land in bulacan.
What is involved is not merely a matter of venue, which is waivable, but of a
matter of jurisdiction. However, the action may prosper if jurisdiction is not in
issue, because venue can be waived.

Alternative answer:

Yes, if the defendant would not file a motion to dismiss on ground of

improper venue and the parties proceeded to trial.

Jurisdiction; over the plaintiff, subject matter

Amorsolo, a filipino citizen permanently residing in new york city, filed with the
rtc of lipa city a complaint for rescission of contract of sale of land against brigido, a
resident of barangay san miguel, sto. Tomas, batangas. The subject property,
located in barangay talisay, lipa city, has an assessed value of p19,700.00.
Appended to the complaint is amorsolo's verification and certification of non-
forum shopping executed in new york city, duly notarized by mr. Joseph
brown, esq., a notary public in the state of new york. Brigido filed a motion to
dismiss the complaint on the following grounds:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The court cannot acquire jurisdiction over the person of amorsolo because he
is not a resident of the philippines; (2009)

Suggested answer:

T h e f i r st g r o u n d ra i se d l a ck s me ri t b e ca u se jurisdiction over the

person of a plaintiff is acquired by the court upon the filing of plaintiff's complaint
therewith. - residency or citizenship is not a requirement for ming a complaint,
because plaintiff thereby submits to the jurisdiction of the court.

Jurisdiction; rtc

Angelina sued armando before the regional trial court (rtc) of manila to recover the
ownership and possession of two parcels of land; one situated in pampanga, and
the other in bulacan.

May the action prosper? Explain. (2009)

Suggested answer:

Alternative answer:

Yes, if the defendant would not file a motion to dismiss on ground of

improper venue and the parties proceeded to trial.

2008
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Jurisdiction; rtc; counterclaim

Fe filed a suit for collection of p387,000 against ramon in the rtc of davao city. Aside
from alleging payment as a defense, ramon in his answer set up counterclaims for
p100,000 as damages and p30,000 as attorney's fees as a result of the baseless filing
of the complaint, as well as for p250,000 as the balance of the purchase price of the 30
units of air conditioners he sold to fe. (2008)

A. Does the rtc have jurisdiction over ramon's counterclaims, and if so, does he
have to pay docket fees therefor? (3%)
B. Suppose ramon's counterclaim for the unpaid balance is p310,000, what will
happen to his counterclaims if the court dismisses the complaint after holding a
preliminary hearing on ramon's affirmative defenses? (3%)
C. Under the same premise as paragraph (b) above, suppose that instead of
alleging payment as a defense in his answer, ramon filed a motion to dismiss on that
ground, at the same time setting up his counterclaims, and the court grants his motion.
What will happen to his counterclaims? (3%)

Suggested answer:

a) Yes, the rtc has jurisdiction over ramon’s counterclaims because they are all
money claims in which the totality rule applies in determining jurisdiction (sec.
5[d], rule 2, rules of court).

Ramon has to pay docket fees for his counterclaims whether the counterclaim is
compulsory or permissive in nature. Rule 141 of the rules of court has been
amended to require payment of docket fees for counterclaims and cross-claims
whether compulsory or permissive.

[this amendment has not yet been implemented by the supreme court. The
present practice still exempts compulsory counterclaims from docket fees.]

Suggested answer:

b) The dismissal of the complaint is without prejudice to the right of the defendant
[ramon] to prosecute his counterclaims in the same or in a separate action (sec.
6, rule 16, last par; pinga v. Heirs of santiago 494 scra 393 [2006]).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Jurisdiction; unlawful detainer

Filomeno brought an action in the metropolitan trial court (metc) of pasay city against
marcelino pleading two causes of action. The first was a demand for the recovery of
physical possession of a parcel of land situated in pasay city with an assessed value of
p40,000; the second was a claim for damages of p500,000 for marcelino's unlawful
retention of the property. Marcelino filed a motion to dismiss on the ground that the total
amount involved, which is p540,000, is beyond the jurisdiction of the metc. Is marcelino
correct? (2008)

Suggested answer:

No, marcelino is not correct. Under rep. Act no. 7691, metropolitan trial court and
other courts of the first level have been vested with exclusive original jurisdiction in all
civil actions which involved title to, or possession of real property or any interest therein
where the assessed value of the property or interest therein does not exceed
p20,000.00, or in civil action in metro manila, where such assessed value does not
exceed p50,000.00 exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses and cost. Pasay city where the action for recovery of physical
possession was filed, is part of metro manila and therefore has exclusive jurisdiction
over the parcel of land situated therein whose assessed value is p40,000.00. The
claims for damages of 500,000.00 for the unlawful retention of the land involved is not
determinative of the court’s jurisdiction which is based on the nature of the action. The
claims for damages of p500,000.00 is just a consequence of the unlawful detention of
the property subject of the action, which should not be taken separately from the land.
Filomeno has only one cause of action which is the action for recovery of possession of
the land against marcelino, with damages.
Question: (2006)
Distinguish jurisdiction from venue?
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:
Jurisdiction is the power of the courts to decide a case on the merits, while venue
refers to the place where the suit may be filed. In criminal actions, however, the venue
is jurisdictional. Jurisdiction may be conferred upon a court by consent through waiver,
but venue may be waived except in criminal cases.

Question: (2006)
What court has jurisdiction over an action for specific performance filed by a
subdivision homeowner against a subdivision developer? Choose the correct answer.
Explain.

1. Housing and land use regulatory board

2. The securities and exchange commission
3. Regional trial court
4. The commercial court or the regional trial court designated by the supreme court
to hear and decide “commercial cases.”

Suggested answer:

The housing and land use regulatory board (hlurb) has jurisdiction over specific
performance filed by a subdivision homeowner who is a lot-buyer or the latter’s
successor-in-interest, against a subdivision developer (manila bankers v. Ng kok wei,
418 scra 454 [2001]

Alternative answer:
it is the rtc that has jurisdiction where the issue involved is the ordinary sale
between buyer and seller. “mere assertion by the petitioner that it is a subdivision
developer and the land involved is a subdivision lot, will not automatically strip the trial
court of its jurisdiction and authorize the hlurb to take cognizance of the complaint.”
(lacson hermanos, inc. V. Heirs of ignacio 462 scra 291 [2005]. The mere relationship
between the “homeowner” and the developer alone does not vest the hlurb with
jurisdiction but the nature of the action which is to be determined by the allegations of
the complaint. Jurisdiction of the hlurb in cases of specific performance refers to
complaints for compliance with contractual and statutory obligations. This question does
not specify what is the contractual stipulation or statutory obligation sought to be
performed. An action for specific performance is an action incapable of pecuniary
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

estimation which falls under the jurisdiction of the rtc unless it is shown that the action
falls under the jurisdiction of any other court or quasi-judicial agency like the hlurb.

Questions: (2005)

while marietta was in her place of work in makati city, her estranged husband
carlo barged into her house in paranaque city, abducted their six-year old son, percival,
and brought the child to his hometown in baguio city. Despite marietta’s pleas, carlo
refused to return their child. Marietta, through counsel, filed a petition for habeas corpus
against carlo in the court of appeals in manila to compel him to produce their son before
the court and for her to regain custody. She alleged in the petition that despite her
efforts. She could no longer locate her son.
in his comment, carlo alleged that the petition was erroneously filed in the court
of appeals as the same should have been filed in the family court in baguio city which,
under republic act no. 8369, has exclusive jurisdiction over the petition. Marietta replied
that under rule 102 of the rules of court, as amended, the petition may be filed in the
court of appeals and if granted, the writ of habeas corpus shall be enforceable
anywhere in the philippines.
whose contention is correct? Explain.

Suggested answer:
Marietta’s contention is correct. The court of appeals has concurrent jurisdiction
with the family courts and the supreme court in petitions for habeas corpus where the
custody of minors is at issue, notwithstanding the provision in the family courts act
(republic act no. 8369) that family courts have exclusive jurisdiction in such cases.
(thornton v thornton, 436 scra 550 [2004]).
Sec. 20, par. 6 of sc am no. 03-04-04 [2003] provides: “the petition may likewise
be filed with the supreme court, court of appeals, or with any of its members and, if so
granted, the writ shall be enforceable anywhere in the philippines. The writ may be
made returnable to a family court or to any regular court within the region where the
petitioner resides or where the minor may be found for hearing and decision on the
merits.”
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Question: (2004)

Plaintiff filed a complaint for a sum of money against defendant with the makati
metc, the total amount of the demand, exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs, being p1,000,000. In due time, defendant
filed a motion to dismiss the complaint on the ground of the metc’s lack of jurisdiction
over the subject matter. After due hearing, the metc (1) ruled that the court indeed
lacked jurisdiction over the subject matter of the complaint; and (2) ordered that the
case therefore should be forwarded to the proper rtc immediately.

Was the court’s ruling concerning jurisdiction correct? Was the court’s order to
forward the case proper? Briefly explain.

Suggested answer:

Yes. The metc did not have jurisdiction over the case because the total amount
of the demand exclusive of interest, damages of whatever kind, attorney’s fees, litigation
expenses, and costs was p1,000,000. Its jurisdictional amount at this time should not
exceed p400,000 (sec. 33 of b.p. Blg. 129, as amended by r.a. 7691). The court’s order
to forward the case to the rtc is not proper. It should merely dismiss the complaint.
Under sec. 3 of rule 16, the court may dismiss the action or claim, deny the motion or
order the amendment of the pleading but not to forward the case to another court.

Question (2003)
A filed with the metropolitan trial court of manila an action for specific
performance against b, a resident of quezon city, to compel the latter to execute a deed
of conveyance covering a parcel of land situated in quezon city having an assessed
value of p19,000.00. B received the summons and a copy of the complaint on 02
january 2003. On 10 january 2003, b filed a motion to dismiss the complaint on the
ground of lack of jurisdiction contending that the subject matter of the suit was incapable
of pecuniary estimation. The court denied the motion. In due time, b filed with the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

regional trial court a petition for certiorari praying that the said order be set aside
because the metropolitan trial court had no jurisdiction over the case.
On 13 february 2003, a filed with the metropolitan trial court a motion to declare b
in default. The motion was opposed by b on the ground that his petition for certiorari
was still pending.
A. Was the denial of the motion to dismiss the complaint correct?
B. Resolve the motion to declare the defendant in default.

Suggested answer:
A. The denial of the motion to dismiss the complaint was not correct. Although the
assessed value of the parcel of land involved was p19,000.00, within the
jurisdiction of the metropolitan trial court of manila, the action filed by a for
specific performance against b to compel the latter to execute a deed of
conveyance of said parcel of land – was not capable of pecuniary estimation and,
therefore, the action was within the jurisdiction of regional trial court. (russel v.
Vestil, 304 scra 738 [1999]; copioso v. Copioso, gr no. 149243, october 28, 2002;
cabutihan v. Landcenter construction, 383 scra 353 [2002])

Alternative answer:
A. If the action affects title to or possession of real property then it is a real action
and jurisdiction is determined by the assessed value of the property. It is within
the jurisdiction therefore of the metropolitan trial court.

Suggested answer:
B. The court should not declare b in default inasmuch as the jurisdiction of
metropolitan trial court was put in issue in the petition for certiorari filed with the
regional trial court. The metropolitan trial court should defer further proceedings
pending the result of such petition. (eternal gardens memorial park corporation v.
Court of appeals, 164 scra 421 [1998]).

Question: (2003)
A, a resident of malolos, bulacan, died leaving an estate located in manila, worth
p200,000.00. In what court, taking into consideration the nature of the jurisdiction and of
venue, should the probate proceeding on the estate of a be instituted?
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:
The probate proceeding on the estate of a should be instituted in the municipal
trial court of malolos, bulacan which has jurisdiction, because the estate is valued at
p200,000.00, and is the court of proper venue because a was a resident of malolos at
the time of his death. (sec. 33 of bp 123 as amended by ra 7691; sec. 1 of rule 73).

QUESTION(2000):

BB files a complaint for ejectment in the Metropolitan Trial Court on the ground of non-
payment of rentals against JJ. After two days, JJ files in the Regional Trial Court a
complaint against BB for specific performance to enforce the option to purchase the
parcel of land subject to the ejectment case. What is the effect of JJ’s action on BB’s
complaint? Explain.

Suggested answer:
There is no effect. The ejectment case involves possession de facto only.
The action to enforce the option to purchase will not suspend the action of
ejectment for non-payment of rentals. (Wilmon Auto Supply Corp. v. Court of
Appeals, 208 SCRA 108)

QUESTION(2000):

a) A brings an action in the Metropolitan Trial Court of Manila against B for the
annulment of an extrajudicial foreclosure sale of real property with an
assessed value of P50,000.00 located in Laguna. The complaint alleged
prematurity of the sale for reason that the mortgage was not yet due. B timely
moved to dismiss the case on the ground that the action should have been
brought in the Regional Trial Court of Laguna. Decide with reasons.
b) A files an action in the Municipal Trial Court against B, the natural son of A’s
father, for the partition of a parcel of land located in Taytay, Rizal with an
assessed value of P20,000.00. B moves to dismiss the action on the ground
that the case should have been brought in the Regional Trial Court because
the action is not capable of pecuniary estimation as it involves primarily a
determination of hereditary rights and not merely the bare right to real
property. Resolve the motion.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

a) The motion should be granted. The Metropolitan Trial Court of Manila

has no jurisdiction because the action for the annulment of the
extrajudicial foreclosure is not capable of pecuniary estimation and is
therefore under the jurisdiction of the Regional Trial Courts. (Russell v.
Vestil, 304 SCRA 738)/
b) The answer depends upon the following distinctions. Where the material
allegations of the complaint clearly show that the action is primarily for
the determination of hereditary rights and partition of the real property
comes merely as an incident to the main action, the suit is one
incapable of pecuniary estimation. The action should therefore be
dismissed because a suit of this nature is within the jurisdiction of the
Regional Trial Court. However, where the suit is primarily for the
partition of real property, the motion should be denied. The suit would
then be a real action irrespective of the allegations of the defendant in
his motion to dismiss. Real actions involving property with an assessed
value not exceeding P20,000.00 are within the jurisdiction of the
Municipal Trial Court.
Comment: This distinction should be made to put the answer in its
proper context. The problem categorically states that the action is for
the partition of real property while the defense alleges that the case is
primarily for the determination of hereditary rights. Basic is the rule that
the nature of the action as well as the jurisdiction of the court is
determined by the allegations of the complaint, not by the defenses
invoked by the defendant. An inquiry therefore, as to the material
allegations of the complaint has to be done. It is submitted that an
alternative answer denying the motion must be considered even if the
distinction in the suggested answer is not made by the examinee. This
is because the problem unequivocally describes the suit as an action
for partition of real property with an assessed value of P20,000.00.
These facts are to be reasonably construed as constituting the material
allegations of the complaint. Any other allegations in the motion to
dismiss contrary to the material allegations of the complaint would be
immaterial to the determination of jurisdiction.

QUESTION (1998)

1. Distinguish civil actions from special proceedings.

2. How shall the Rules of Court be construed?

SUGGESTED ANSWER:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

1.) A civil action is one by which a party sues another for the enforcement
or protection of a right, or the prevention or redress or wrong. (Sec. 3[a], Rule 1.
1997 Rules of Civil Procedure), while a special proceeding is a remedy by which a
party seeks to establish a status, a right or a particular fact. (Sec. 3[C], Rule 1,
1997 Rules of Civil Procedure.)

2.) The Rules of Court should be liberally construed in order to promote

their objective of securing a just, speedy and inexpensive disposition of every
action and proceeding. (Sec. 6, Rule 1, 1997 Rules of Civil Procedure.)

QUESTION (1998)

In an action for unlawful detainer in the Municipal Trial Court (MTC),

defendant X raised in his answer the defense that plaintiff A is not the real owner
of the house subject of the suit. X filed a counterclaim against A for the collection
of a debt of P80,000.00 plus accrued interest of P15,000.00 and attorney’s fees of
P20,000.00.

Does the MTC have jurisdiction over the counterclaim?

SUGGESTED ANSWER:

The counterclaim is within the jurisdiction of the Municipal Trial Court

which does not exceed P100,000.00, because the principal demand is P80,000.00,
exclusive of interest and attorney’s fees. (Sec. 33, B.P. Blg. 129, as amended.)
However, inasmuch as all actions of forcible entry and unlawful detainer are
subject to summary procedure and since the counterclaim is only permissive, it
cannot be entertained by the Municipal Trial Court. (Secs. 1A(1) of Revised Rule
on Summary Procedure.)

QUESTION (1998)

In an action for unlawful detainer in the Municipal Trial Court (MTC),

Is X’s defense tenable?

SUGGESTED ANSWER
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

No. X’s defense is not tenable if the action is filed by a lessor against a
lessee. However, of the right of possession of the plaintiff depends on his
ownership then the defense is tenable.

1997
What courts have jurisdiction over the following cases in Metro Manila? (1997)

a. An action for specific performance or, in the alternmative, for damages in the
amount of P180,000.00
b. An action for a writ of injunction
c. An action for replevin of a motorcycle valued at P150,000.00
d. D. An action for interpleader to determine who between the defendant is entitled
to receive the amount of P190,000.00
e. A petition for the probate of a will involving an estate valued at P200,000.00
Suggested Answer:
a. An action for specific performance or, in the alternative, for damages in the
amount of P180,000.00 falls within the jurisdiction of Metropolitan Trial
Courts in Metro Manila. Although an action for specific performance is not
capable of pecuniary estimation, since the alternative demand for damages
is capable of pecuniary estimation, it is within the jurisdiction of the
Metropolitan Trial Courts in Metro Manila. (Sec. 33 of BP 129 as amended
by RA No. 7691; Cruz vs. Tan, 87 Phil. 627)
b. An action for injunction is not capable of pecuniary estimation and hence
falls within the jurisdiction of the Regional Trial Courts.
c. An action for replevin of a motorcycle valued at P150,000.00 falls within the
jurisdiction of the Metropolitan Trial Courts in Metro Manila (Sec. 33 BP129,
as amended by RA. 7691.)
d. An action for interpleader to determine who between the defendants is
entitled to recover the amount of P190,000.00 falls within the jurisdiction of
the Metropolitan Trial Courts of Metro Manila. (Id.; Makati Dev. Corp. v.
Tanjuatco, 27 SCRA 401)
e. A petition for the probate of a will involving an estate valued at
P200,0000.00 falls within the jurisdiction of the Metropolitan Trial Courts in
Metro Manila (Id.; Sec 19[4] of BP 129, as amended).

B and C borrow P400,000.00 from A. The promissory note was executed by B and C in
a joint and several capacity. B, who received the money from A, gave C P200,000.00.
C, in turn, loaned P100,000.00 out of the P200,000.00 he received to D.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a. In an action filed by A against B and C with the Regional Trial Court of Quezon
City, can B file a cross-claim against C for the amount of P200,000.00?
b. Can C file a third party complaint against D for the amount of P100,000.00?
Suggest Answer:
a. Yes. B can file a cross-claim against C for the amount of P200,000.00 given
to C. A cross-claim is a claim filed by one party against a co-party arising
out of the transaction or occurrence that is subject matter of the original
action or a counterclaim therein and may include a claim that a party
against whom it is asserted is or may be liable to the cross-claimant for all
or part of a claim asserted against the cross-claimant. (Sec. 8 Rule 6, Rules
of Court)
b. No. C cannot file a third-party complaint against D because of the loan of
P100,000.00 has no connectiohn with his opponent’s claim. C could have
loaned the money out of other funds in his possession.

What is meant by 'hierarchy of courts"?(1996)

1)
by 'hierarchy of courts' is meant that while the supreme court, the court of
appeals and the regional trial courts have concurrent original jurisdiction to issue writs of
certiorari prohibition. Mandamus, quowarranto and habeas corpus, such concurrence
does not accord litigants unrestrained freedom of choice of the court to which
application therefor may be directed. The application should be filed with the court of
lower level unless the importance of the issue involved deserves the action of the court
of higher level. Illy vs. Contreras. 237 scra 167)
(note: the rules and cases arc cited merely for reference purposes)
2) Can civil and criminal cases be adjudicated without trial? Explain?
Civil cases may be adjudicated without trial, such as in t following rules:

a) Summary judgment.
b) Judgment on the pleadings.
c) Summary procedure.
d) Sec. 3 of rule 17.
Criminal cases as a rule may not be adjudicated without mal. Some exceptions are
the following:
a) Plea of guilty.
b) Motion to quash on the ground of double jeopardy or extinction of criminal action
or liability.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

c) Motion to dismiss on the ground of violation of the right to a speedy trial.

Question no. 1(1994)
Distinguish:
1) An action in rem from an action quasi in rem.
2) An action quasi in rem from an action to personam.
3) An action in personam from a personal action.
4) An action in rem from a real action.
5) A personal action from a local action.

Answer:

1) an action in rent is an action against all who might be minded to make an objection
of any sort against the right sought to be established. While an action quasi in rem is an
action against an individual although the purpose of the suit is to subject his interest in a
particular property to the obligation or lien burdening the property.
The judgment rendered in actions in rent binds the whole world, while the judgment
rendered in actions quasi in rem is conclusive only between the parties. (banco espanol
filipino v. Palanca. 37 phil. 921: sandejas u. Robles. 81 phil. 421.)
2)An action quasi in rem • as stated. Is an action against a person over a particular
property ordains relating thereto. While an action inpersonam is an action to establish a
claim against a person with a judgment that binds him personally.
3)An action in personam as stated. Is an action against a person on the basis of
his personal liability while a personal action is an action where the plaintiff seeks the
recovery of personal property. The enforcement or resolution of a contract or the
recovery of damages. (hernandez v. Rural rank of lucerta. Inc. 8i scra 75 [1981]).

4) an action in rem is as stated above, while a real action is an action affecting title to
real property or for the recovery of possession, or for partition or condemnation of, or
foreclosure of a mortgage on. Real property. (rule 4. Sec. 2[a]).
5) a personal action is as stated above. While a local action is that which must be
brought in a particular place.

Plaintiff in a personal action may file it in the place where he resides or where the
defendant resides, while in a local action, plaintiff has no choice except to file the action in
the place where the property is located.

Question no. 2 (1994)

How is jurisdiction acquired by a court over the person
Of:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

1) The plaintiff in a special civil action for mandamus?

2) The defendant in an action for unlawful detainer?

3) A non-resident defendant who is not found in the philippines. In an action for

compulsory acknowledgment of his natural child?
Answer;

1) jurisdiction is acquired over the plaintiff in a special civil action for mandamus by
the commencement or filing of the action.
Alternative answer:
Such jurisdiction is acquired by the filing of the action and the payment of the
prescribed docket fees.

2) Jurisdiction is acquired over the person of the defendant in an action for

unlawful detainer by the proper service of summons on him or by his voluntary
appearance.

3) Jurisdiction cannot be acquired over the person of a non-resident defendant

who is not found in the philippines in an action for compulsory acknowledgment of
his natural child because he is outside the jurisdiction of the court.

Alternative answer:

Such jurisdiction can be acquired by the voluntary appearance of the non-resident

defendant who is not found in the philippines.

Question no. 17 (1993)

Menez duque filed an action against fuji, inc. Before the regional trial court for
recovery of actual, moral and exemplary damages resulting from his alleged
unfounded and unjust dismissal from his job.
Fuji, inc. Filed an answer asserting that m e n e z ’ dismissal was for just
and valid cause.
After trial, the regional trial court rendered a decision sustaining menez’ claim
and ordering fuji, inc. To pay him actual, moral and exemplary damages. Fuji. Inc.
Appealed to the court of appeals where it insisted that menez’ dismissal was for
valid and just cause.
Without resolving the assigned error, the court of appeals set aside the
appealed decision and dismissed the case on the ground that it is the labor
arbiter, not the ordinary courts which has jurisdiction to entertain the claim for
damages.
Pursuant to rep. Act no. 6715. "claims for actual, moral, exemplary and other
forms of damages arising from employer-employee relations" fall within the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

'original and exclusive jurisdiction of labor arbiters. Considering, however, that

the lack of jurisdiction of the trial court was not assigned as error in the appellant's
brief. Did the court of appeals act properly in its decision? Why?
Answer:
Yes, because the fact that the lack of jurisdiction of the trial court was not
assigned as error in the appellant's brief should not prevent the court of appeals
from taking up that issue, as the lack of jurisdiction of the lower court is apparent from
the face of the record. It is fundamental that a court of justice could only validly act
upon a cause of action or subject matter of a case over which it has jurisdiction. Said
jurisdiction is one conferred by law and cannot be acquired through, or waived by, any
act or omission of the parties. (calimlim vs. Ramirez. 118 scra 399: dy us. National
labor relations commission, 145 scra 211).

Alternative answer:
Fuji. Inc. Is estopped from raising the question of jurisdiction inasmuch as it
filed an answer asserting menez’s dismissal was for just and valid cause and in its
appeal to the court of appeals, it insisted on that defense. (tijam vs. Sibonghanoy.
23 scra 29 and other cases)

Question no. I (1992)

In a suit to recover a sum of money. Plaintiff filed his complaint with the regional trial
court instead of with the municipal trial court which has jurisdiction over the case
because of the amount involved. The defendant did not file a motion to dismiss.
Neither did the regional trial court dismiss the case on its own initiative. At the
pre-trial hearing, defendant tried to have the case settled. With the effective help of
the presiding judge, he was able to forge with the plaintiff a compromise agreement
which stipulated that he would pay in twelve (12) equal monthly installments
starting the first day of the following month, each to become due without need of
any demand. Failure to pay any installment when due will render the entire
amount enforceable by writ of execution. Judgment was rendered on the basis of
the compromise agreement and was then served on the parties.

Defendant failed to pay the first installment as it fell due. Plaintiff thereupon
sought execution which was granted, and the corresponding writ of execution
was issued. Defendant filed in due form a motion to set aside the writ of
execution upon the contention that the court had no power to order the issuance
of the writ of execution because it has no jurisdiction over the nature of the action-
an issue that can be raised at any stage of the case. The court granted the defendant's
motion and accordingly set aside the writ of execution.
Did the court act correctly? Why?
Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Yes. The court acted correctly because jurisdiction over the subject matter or
nature of an action cannot be conferred by agreement of the parties. Whenever it
appears that the court has no jurisdiction over the subject matter. It shall dismiss
the action. (sec. 2 of rule 9)
Another acceptable answer:

Inasmuch as the defendant did not file a motion to dismiss and the parties submitted a
compromise agreement on the basis &which judgment was rendered, the defendant is
estopped to raise the question of jurisdiction. (tijam vs. Sibonghanoy. 23 scra 29 and other
cases)

Question no. X (1992)

Pernito, also known in the community as peregrino, filed a petition for

change of name to pedro. The name peregrino appeared in the body of the
petition but not in the caption. When the petition was published, the caption
and the body of the petition were merely lifted verbatim, so that as
published, the petition's caption still did not contain peregrino as the
petitioner's alias. The government lawyer filed a motion to dismiss on the
ground that, notwithstanding publication for the requisite number of times,
the court did not acquire jurisdiction over the petition because peti tioners
alias (peregrino) did not appear in the published caption. The court denied
the motion to dismiss with the ruling that there was substantial compliance
with the law and that the omission of the alias in the caption may be
deemed de minimis because the alias was clearly set forth in the petition
itself.

Was the court correct in denying the motion to dismiss? Explain.

Suggested answer:
No, the failure of the petitioner to include his alias (peregrino) in the caption is
a jurisdictional defect and the inclusion of the alias in the body of the petition does not
cure said defect. The reason for the rule is that the ordinary reader only glances
fleetingly at the caption in a special proceeding and only if the caption strikes
him does he proceed to read the body of the petition: hence, he 'will probably not
notice the other names or aliases of the petitioner. (gil go us. Republic. 77 scra 65)

1. For failure of the tenant, x, to pay rentals, a, the court appointed administrator of
the state of henry datu, decides to file an action against the former for the
recovery of possession of the leased premises located in davao city and for the
payment of due accrued rentals in the total amount of p25,000.

a. What is the court of proper jurisdiction and venue of the intended action?
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

b. Supposing that referral is necessary, but the complaint is filed without

such referral, may it dismissed on the ground of lack of jurisdiction?
c. If the case is filed with the municipal trial court in cities (mtcc), is it
covered by the rule on summary procedure?
d. Supposing that a filed the complaint in the mtcc, and x filed an answer
wherein he interposed a counterclaim for moral damages in the amount of
p50,000 alleging that the complaint is unfounded and malicious, would
the mtcc have jurisdiction over the counterclaim? If x did not set up the
counterclaim, can he file a separate action to recover the damages? Can
a file a counterclaim to the counterclaim? (1991)

Suggested answer:

Since the claim for damages is not within the jurisdiction of the mtcc, it is
not compulsory counterclaim and x can file a separate action in the rtc to
recover the damages. (reyes v. Ca, 38 scra 130)
yes, a can include a counterclaim in his answer to counterclaim. (sec. 10 of
rule 6)

Alternative answer:

a. If the action filed is for recovery of possession or accion publiciana, the

regional trial court of davao city would have jurisdiction and the venue would
also be in davao city.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

b. No, because lack of referral would merely render the action premature for
failure to comply with a condition precedent.
c. None
d. The mtcc would have jurisdiction over the counterclaim if the excess of the
amount thereof over p20,000.00 is waived by x. (agustin v bocalan, 135 scra
340)

2. A complaint filed for recovery of possession of real property also prayed for
moral and exemplary damages the amounts of which have been left to the
court’s discretion, and for actual damages the amount of which shall be proven
at the trial. The docket fees for the action involving the real property have been
paid, but not those for the related damages, the amounts of which have not been
specified.
a. did the court acquire jurisdiction over the action?
b. May the action be dismissed? (1991)

Suggested answer:

a. Yes, because the docket fees for the action involving the real property have
been paid.
b. No, because the court has acquired jurisdiction over the action. However, the
claim for damages, as to which no amounts were specified may be expunged,
or the plaintiff may be allowed to amend the complaint so as to specify the
amount of damages and to pay the requisite fees within the prescriptive
period. (tacay v. Rtc, 180 scra 433)

3. A filed a complaint against y with the rtc of argao, cebu, for payment of a
promissory note in the sum of p50,000.00 for liquidated damages of p5,000.00.
After the filed his answer, y died, but his lawyers did not file a motion to dismiss.
In the meantime, y’s widow filed with the above court a special proceeding for
the settlement of the intestate estate of y. The widow, z, was appointed the
administatrix of the estate. A filed in the civil case a motion to have y substituted
by the administatrix; the latter did not object. The court granted the motion. Trial
on the merits was had. In due course, the court rendered a decision in favor of a.
At the time it was rendered, the period to file the claims in the intestate estate of
y had already lapsed. The administatrix, x, did not appeal from the decision; and
it became final. A moved for the execution of judgment. Z opposed the motion
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

contending that the decision is void because the claim does not survive. The
case should have been dismissed upon the death of y since upon his death, the
court lost jurisdiction over the case.
a. Rule on the issue.
b. If the opposition is without merit, can the writ of execution be validly issued?
c. If it cannot be issued, what is the remedy of a? (1991)

Suggested answer:

a. Since y died before the final judgment in the rtc, the action for money
should have been dismissed and prosecuted as a money claim against
his estate. However, since the widow, z, who was appointed
administatrix of the estate, did not i=object to the trial on the merits and
did not appeal from the decision, she is deemed to have waived the
right to have the claim litigated in the state proceedings. Moreover, she
is estopped from questioning the court’s jurisdiction. Hence, the
decision is valid. (sec. 21 of rule 3; ignacio v. Pambusco, 20 scra 126;
echaus v. Blanco, 179 scra 704)
b. No, because a judgment for money cannot be entered by a writ of
execution against the estate of the deceased which is in custodial egis.
(sec. 7 of rule 39; paredes v. Moya, 61 scra 527)
c. His remedy is to file a money claim against the estate of y based on
the judgment. Although the period for filing money claims has already
lapsed, the same may be allowed before an order of distribution is
entered. (secs. 2 and 5 of rule 86; echaus v. Blanco, supra)

4. Sammy magdalo, executor of the estate of the deceased rolando aceron,

submitted an inventory which includes a ten-hectare lot occupied by carlos
domingo. Domingo opposed inclusion in the inventory of the property claiming
ownership thereof. The probate court directed the executor and domingo to
present evidence of ownership. Domingo refused to participate in the
proceedings, asserting lack of jurisdiction on the part of the probate court. The
probate court nonetheless proceeded with the hearing, and rendered judgment
declaring the deceased to be the owner of the questioned property. The probate
court directed domingo to vacate the premises.
Is the said judgment correct? Explain your answer. (1990)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

no, because the probate court has no jurisdiction to adjudicate title to

properties claimed to be part of the estate of the deceased an also claimed by
third parties. (cuison v. Romolete, 129 scra 495). It may only make provisional
determination for the purpose of inclusion in the inventory of the estate. (bolisay
v. Alcid, 85 scra 213).

5. distinguish between error of judgment and error of jurisdiction. (1989)

Suggested answer:

An error of judgment is one which the court may commit in the exercise of its
jurisdiction. Such an error does not deprive the court of jurisdiction and is
correctible only by appeal; whereas an error of jurisdiction is one which the court
acts without or in excess of its jurisdiction. Such an error renders an order or
judgment void or voidable and is correctible by the special civil action of
certiorari. (de la cruz vs. Moir, 36 phil 213; cochingyan vs. Cloribel, 76 scra 361)

6. Luis is the owner of a five-door apartment unit three doors of which he has
leased to fe, gary, and marilou for a monthly rental of 250.00 per door. Fe, gary,
and marilou have been his tenants for close to thirty years at that rate. He
occupies the fourth door as his own residence. The fifth door is vacant. Alleging
that he need to repossess all three doors for the use of his son, fern, who had
recently gotten married, and who does not allegedly have a residence of his
own, he sued, after the requisite letters to vacate, fe, gary, and marilou before
the metropolitan trial court for unlawful detainer, fe, gary, and marilou answered
the complaint and set up the defense that ejectment was not proper because the
fifth door was available for fern’s residence. At the trial, they likewise
endeavored to prove that fern has in fact a residence of his own and that the suit
was luis mere strategy to force them to agree to a rental hike of 1,500.00 a door,
in violation of the rental laws. The trial judge, however, decreed ejectment. On
appeal, to the regional trial court, fe gary, and marilou alleged that the decision
was null and void, for lack of jurisdiction, there having been no prior
confrontation among the parties before the lupong tagapamayapa pursuant to
presidential decree no. 1508. Luis countered that the jurisdictional question not
having been raised below, it cannot be raised for the first time on appeal.
(a) Can fe, gary, and marilou validly challenge the jurisdiction of the
metropolitan trial court? Explain
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(b) What is the effect of luis failure to resort to the conciliation process before
the lupong tagapamayapa provided for in pd no. 1508? Explain (1988)

Suggested answer:

(a) no, because lack of prior confrontation among the parties before the lupong
tagapamayapa pursuant to presidential decree no. 1508 does not affect the
jurisdiction of the metropolitan trial court over the action for unlawful detainer.
(it is presumed that the complaint was filed within one year from the demand
to vacate) (rayales vs iac, 127 scra 470)

Moreover, by answering the complaint and setting up their defense without

objecting to the jurisdiction of the court, they are estopped from raising the
question of jurisdiction. (tijam vs sibonghanoy, 23 scra 29)
(b) Luis failure to resort to the conciliation process affects the sufficiency of his
cause of action and makes his complaint subject to dismissal on the ground
of lack of cause of action or prematurity. (rayales vs iac, supra)

7. Norma is the owner of love and peace enterprises, a sole proprietorship

engaged in the manufacture of bullets, with a work force of one hundred
employees whom top employee, evelyn, supervises. Norma, however, soon lost
confidence in evelyn, and to force her to resign, refused to pay her salary and
other economic benefits required by law. Instead of resigning, however, evelyn
decided to fight back.

On the strength of article 1701 of the civil code, as follows:

Article 1701. Neither capital nor labor shall act oppressively against the other, or
impair the interest or convenience of the public.
In relation to article 21 thereof, as follows:
Article 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to moral, good customs or public policy shall compensate the
latter for the damage.
Evelyn went to the regional trial court on a complaint for actual, exemplary, and
moral damages. Norma moved to dismiss the complaint for lack of jurisdiction
alleging that it is the labor arbiters who are vested with the jurisdiction. Evelyn
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

opposed the motion on the ground that her complaint is based on “tort” and
hence, purely civil in character.
(a) Decide the incident with reason.
(b) What is jurisdiction and how does it differ from cause of action? How are they
acquired? Explain (1988)

Suggested answer:

(b) Jurisdiction is the authority to hear and determine a cause, the right to act in a
case. It is given by law and in the manner prescribed by law; whereas cause
of action is an act or omission of one party in violation of the legal rights of the
other

Alternative answer:

(a) In a decision penned by justice abad santos (medina vs castro bartolome,

116 scra 597) it was held that if the employer-employee relationship is merely
incidental, the rtc has jurisdiction.

8. Captain basaya and twenty-four sailors are the crew of f/b carribbean, a fishing
boat chartered and operated since 1977 by tuna, inc. In 1985, tuna, inc.
Transferred its operation to a sister corporation, eastship corporation.
On june 28, 1986, captain basaya and his crew informed eastship that
they would not sail the ship unless their economic demands, which they had
presented previously to tuna, inc. Were granted.
Eastship on july 8, 1986 filed with the nlrc in cebu a petition to declare the
strike by captain basaya and his crew illegal. In turn, the crew filed on august
8,1986, a complaint for unfair labor practice against tuna, inc. And eastship.
On july 9, 1986, a day after the filing of the illegal strike complaint, tuna,
inc. Also sought the remedy of replevin before the rtc praying that captain basaya
and his crew be ordered to deliver the possession of the vessel to it as their
possession was in violation of its rights.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Which court or tribunal has jurisdiction over the issue of possession of the
vessel? Explai. (1988)
Suggested answer:

The rtc has jurisdiction over the issue of possession of the vessel. The replevin
case is not involved in the labor disputes. The question of who has the better
right of possession is outside the competence of labor tribunals and within the
jurisdiction of civil courts. (basaya, jr. Vs militante, dec. 11, 1987)

9. Andres filed a case for unlawful detainer before the metropolitan court of manila
against lito for refusing to vacate the leased premises after the expiration of his
lease contract and for non-payment of rentals. As counterclaim, lito claimed
moral damages in the amount of 15,000.00.
a. May the metropolitan court proceed to try and decide the case
including the claim of 15,000.00? Explain.
b. In case lito is adjudged to vacate the leased premises and to pay the
accrued rentals in arrears, how can he stay the execution of the
judgment?
c. How does unlawful detainer differ from forcible entry? (1988)

Suggested answer:

a. Yes, because the amount of the counterclaim, 15,000.00, is

within the jurisdiction of the metropolitan court which has also
exclusive original jurisdiction over the unlawful detainer case.
(agustin vs. Bocalan, 135 scra 340)
b. Lito must appeal; file a supercedeas bond in an amount
equivalent to the rents, damages and costs accruing down to
the time of the judgment; and deposit with the rtc the amount of
the reasonable value of the use and occupation of the premises
for the preceding month or period at the rate determined by the
judgment, on or before the tenth day of each succeeding month
or period. (section 8, rule 70)
c. In unlawful detainer, the possession is legal at the beginning but
subsequently becomes illegal after the expiration or termination
of the right to hold possession, whereas in forcible entry the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

possession is illegal from the beginning because the entry was

made by force, intimidation, threat, strategy or stealth.

10. “a” leased his commercial land and building in malate, manila, to “b”, a resident
of malolos, bulacan. The contract of lease provided that in the event “a” violates
the contract, “b” may file suit in manila. “a’s” residence, and if “b” violates the
contract, “a” may sue “b” in malolos. “b” violated the contract, entitling “a” to sue
for ejectment.

If you were the lawyer of “a”, where and which court can you lawfully file
the action for ejectment? Explain. (1987)

Suggested answer:

I can lawfully file the action for ejectment either in the metropolitan trial court of
manila or in the municipal trial court of malolos. Metropolitan and municipal trial
courts have exclusive original jurisdiction over the cases of forcible entry and
unlawful detainer or ejectment cases. The stipulation in the contract of lease that
if “b” violates the contract “a” may sue “b” in malolos is valid, because the
location of the real property in such cases determines the venue of the action
and not jurisdiction over the subject matter. However, since the agreement as to
venue is merely permissive, as shown by the use of the word “may”, the action
may also be filed in manila where the real property is located. (villanueva vs.
Masqueda, 155 scra 904).

Presidential decree 1508

11. In the same controversy, after the demand letter was sent an juan failed to
comply therewith, the lawyer of maria cruz filed the ejectment case with the
municipal court of antipolo without going through the conciliation process at the
barangay level as required under presidential decree no. 1508. The amount due
is p1,500.00, hence, summary procedure was followed.

May juan santos file a motion to dismiss for non-compliance with the
requirements of the said decree? State your reasons. (1990)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

No, because a motion to dismiss is not allowed in summary procedure.

Moreover, the requirement of prior recourse to barangay conciliation is not
applicable since the parties did not reside in the same city or municipality or in
adjoining barangays of different cities or municipalities. (tavera v. Veloso, 117
scra 618)

12. Luis is the owner of a five-door apartment unit three doors of which he has
leased to fe, gary, and marilou for a monthly rental of 250.00 per door. Fe, gary,
and marilou have been his tenants for close to thirty years at that rate. He
occupies the fourth door as his own residence. The fifth door is vacant. Alleging
that he needs to repossess all three doors for the use of his son, fern, who had
recently gotten married, and who does not allegedly have a residence of his
own, he sued, after the requisite letters to vacate, fe, gary, and marilou before
the metropolitan trial court for unlawful detainer, fe, gary, and marilou answered
the complaint and set up the defense that ejectment was not proper because the
fifth door was available for fern’s residence. At the trial, they likewise
endeavored to prove that fern has in fact a residence of his own and that the suit
was luis mere strategy to force them to agree to a rental hike of 1,500.00 a door,
in violation of the rental laws. The trial judge, however, decreed ejectment. On
appeal, to the regional trial court, fe gary, and marilou alleged that the decision
was null and void, for lack of jurisdiction, there having been no prior
confrontation among the parties before the lupong tagapamayapa pursuant to
presidential decree no. 1508. Luis countered that the jurisdictional question not
having been raised below, it cannot be raised for the first time on appeal.

A. Can fe, gary, and marilou validly challenge the 65 jurisdiction of the
metropolitan trial court? Explain
B. What is the effect of luis failure to resort to the conciliation process before
the lupong tagapamayapa provided for in pd no. 1508? Explain. (1988)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a. No, because lack of prior confrontation among the parties before the
lupong tagapamayapa pursuant to presidential decree no. 1508 does not
affect the jurisdiction of the metropolitan trial court over the action for
unlawful detainer. (it is presumed that the complaint was filed within one
year from the demand to vacate) (rayales vs iac, 127 scra 470)
Moreover, by answering the complaint and setting up their defense without
objecting to the jurisdiction of the court, they are estopped from raising the
question of jurisdiction. (tijam vs sibonghanoy)
b. Luis failure to resort to the conciliation process affects the sufficiency of his
cause of action and makes his complaint subject to dismissal on the
ground of lack of cause of action or prematurity.

RULE 2: CAUSE OF ACTION

Misjoinder of cause of actions (2018)

Dory enterprises inc. (dory) leased to digna corporation (digna) a parcel of land located
in diliman, quezon city. During the term of the lease, digna was informed by dbs banking
corporation (dbs) that it had acquired the leased property from the former owner dory,
and required digna to pay the rentals directly to it. Digna promptly informed dory of dbs'
claim of ownership. In response, dory insisted on its right to collect rent on the leased
property.
Due to conflicting claims of dory and dbs over the rental payments, digna filed a
complaint for interpleader in the rtc of manila. Digna prayed that it be allowed to consign
in court the succeeding monthly rentals, and that dory and dbs be required to litigate
their conflicting claims. It later appeared that an action for nullification of a dacion en
pago was filed by dory against dbs in the rtc of quezon city. In said case, dory raised the
issue as to which of the two (2) corporations had a better right to the rental payments.
Dory argued that, to avoid conflicting decisions, the interpleader case must be
dismissed.
Does the action for nullification of the dacion en pago bar the filing of the interpleader
case? (2.5%)
Suggested answer:
Yes. The interpleader case should be dismissed in view of the action for nullification of
the dacion en pago.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Under rule 2, section 4 of the rules of court, if two or more suits are instituted on the
basis of the same cause of action, the filing of one or a judgment upon the merits in any
one is available as a ground for dismissal of the others. In the situation above, the
interpleader case filed by digna seeks to resolve who between dory and dbs has the
right to receive the rental payments. Similarly, dory’s action for nullification of dacion en
pago will determine who between dory and dbs has the right to collect rental payment
from digna. Considering that the two cases involve the same cause of action, the
interpleader case should be dismissed.

Misjoinder of cause of actions (2017)

Hanna, a resident of manila, filed a complaint for the partition of a large tract of land
located in oriental mindoro. She impleaded her two brothers john and adrian as
defendants but did not implead leica and agatha, her two sisters who were permanent
residents of australia.
Arguing that there could be no final determination of the case without impleading all
indispensable parties, john and adrian moved to dismiss the complaint.
Does the trial court have a reason to deny the motion? Explain your answer (4%)

Splitting of a single cause of action (2017)

Elise obtained a loan of p3 million from merchant bank. Aside from executing a
promissory note in favor of merchant bank, she executed a deed of real estate
mortgage over her house and lot as security for her obligation.
The loan fell due but remained unpaid; hence, merchant bank filed an action against
elise to foreclose the real estate mortgage. A month after, and while the foreclosure suit
was pending, merchant bank also filed an action to recover the principal sum of p3
million against elise based on the same promissory note previously executed by the
latter. In opposing the motion of elise to dismiss the second action on the ground of
splitting of a single cause of action, merchant bank argued that the ground relied upon
by elise was devoid of any legal basis considering that the two actions were based on
separate contracts, namely, the contract of loan evidenced by the promissory note, and
the deed of real estate mortgage.
Is there a splitting of a single cause of action? Explain your answer. (4%)

Suggested answer
Yes, there is splitting of a cause of action. A creditor cannot file a civil action against the
debtor for collection of the debt and subsequently file an action to foreclose the
mortgage: this is an example of splitting of a single cause of action, a practice that is
vexatious and oppressive (dunao v. Court of appeals, g.r. No. L-48276, june 6, 2001).

Suggested answer.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Yes, the trial court has reason to deny the motion. Section 11, rule 3 rules of court
states that neither misjoinder nor non-joinder of: parties is a ground for the dismissal of
an action. The petitioner can still amend his initiatory pleading in order to implead leica
and agatha, for under the same rule, such amendment to implead an indispensable
party may be made on motion of any party or on the trial court’s own initiative at any
stage of the action and on such terms as are just (ablaza v. Reput. Lic; g.r. No. 158298,
august 11, 2010).

Joinder of causes of action (2015)

Lender extended to borrower a p100,000.00 loan covered by a promissory note. Later,
borrower obtained another p100,000.00 loan again covered by a promissory note. Still
later, borrower obtained a p300,000.00 loan secured by a real estate mortgage on his
land valued at p500,000.00 borrower defaulted on his payments when the loans
matured. Despite demand to pay the p500,000.00 loan, borrower refused to pay, lender,
applying the totality rule, filed against borrower with the regional trial court (rtc) of
manila, a collection suit for p500,000.00.
(a) did lender correctly apply the totality rule and the rule on joinder of causes of action?
(2%)
At the trial, borrower’s lawyer, while cross-examining lender, successfully elicited an
admission from the latter that the two promissory notes have been paid. Thereafter,
borrower’s lawyer filed a motion to dismiss the case on the ground that as proven only
p300,000.00 was the amount due to lender and which claim is within the exclusive
original jurisdiction of the metropolitan trial court. He further argued that lack of
jurisdiction over the subject matter can be raised at any stage of the proceedings.
(b) should the court dismiss the case?(3%)
Suggested answer
(a) yes. The lender correctly applied the totality rule and the rule on joinder of causes of
action because where the claims in all the causes of action are principally for recovery
of money, the aggregate amount of the claim shall be the test of jurisdiction (section
5 (d), rule 2, rules of court). Here, the total amount of the claim is p500,000.00. Hence,
the regional trial court (rtc) of manila has jurisdiction over the suit. At any rate, it is
immaterial that one of the loans is secured by a real estate mortgage because the
lender opted to file a collection of sum of money instead of foreclosure of the said
mortgage.
(b) no. The court should not dismiss the case. What determines the jurisdiction of the
court is the nature of the action pleaded as appearing from the allegations in the
complaint. The averments therein and the character of the relief sought are the ones to
be consulted (navida v. Hon. Teodoro a. Dizon, jr., g.r. No. 125078, may 30, 2011).
Accordingly, even if the defendant is able to prove in the course of the trial that a lesser
amount is due, the court does not lose jurisdiction and a dismissal of the case is not in
order (paadlan v. Dinglasan, g.r. No. 180321, march 20, 2013).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Actions; specific performance

A bought a volvo sedan from abc cars for p 5.0m. Abc cars, before delivering to a, had
the car rust proofed and tinted by xyz detailing. When delivered to a, the car's
upholstery was found to be damaged. Abc cars and xyz detailing both deny any liability.
Who can a sue and on what cause(s) of action? Explain. (2012)

Suggested answer:

A can file an action for specific performance and damages against abc cars since the
damaged to the volvo sedan’s upholstery was caused before delivery of the same to a,
and therefor prior to the transfer of ownership to the latter. (article 1477, ncc). Under
article 1170 of the new civil code, those who contravene the tenor of the obligation are
liable for damages. Hence, an action for specific performance against abc corporation to
deliver the agreed volvo sedan in the contract, free from any damage or defects, with
corresponding damages will lie against abc cars.

Alternative answer:
A can sue abc cars for specific performance or rescission because the former has
contractual relation with the latter.

Cause of Action 1998

A. Distinguish action from cause of action. (2%)
B. A sued B to recover P500,000.00 based on a promissory note and payable on
December 5, 1998. The complaint was filed on November 30, 1998, and
summons was served on B on December 7, 1998. B interposes a motion to
dismiss on the ground that the Complaint states no cause of action. If you
were the judge, how would you rule on the motion? (2%)

Suggested Answer:
a. An action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong. (Sec. 3(A),
second par., Rule 1 of the 1997 Rules of Civil Procedures.) A cause of action
is the act or omission by which a party violates q right of another. (Sec. 2,
Rule 2 of the 1997 Rules) An action must be based on a cause of action.
(Sec. 1, Rule 2 of the 1997 Rules).
b. I f I were the judge, I would grant the motion on the ground that the complaint
states no cause of action. When the complaint was filed, the promissory note
was not yet due and payable and hence the complaint was not yet due and
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

payable and hence the complaint filed prematurely. This defect was not cured
by the service of the summons on the defendant after the date when the
promissory note became due and demandable.

Rule on Splitting Cause of Action

A. What is the rule against splitting a cause of action and its effect on the
respective rights of the parties for failure to comply with the same? (2%)
B. A purchased a lot from B for P 1, 500,000.00. He gave down payment of P
500,000.00, signed a promissory note payable thirty days after date, and as
security for the settlement of the obligation, mortgaged the same lot to B.
When the note fell due and A failed to pay, b commenced suit to recover from
A the balance of P 1,000,000.00. After securing a favorable judgment on his
claim, B brought another action against A before the same court to foreclose
the mortgage. A now files a motion to dismiss the second action on the
ground of bar by prior judgment. Rule on the motion. (2%)

Suggested Answer:
a. The rule against splitting a cause of action and its effect are that if two
or more suits are instituted on its effect are that if two or more sits are
instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for the
dismissal of the others. (Sec. 4, Rule 2 of the 1997 Rules)
b. The motion to dismiss should be granted. When B commenced suit to
collect on the promissory note, he waived his right to foreclose the
mortgage. B split hi cause of action.

Joinder of Causes of Action

A. What is the rule on joinder of causes of action?

B. A secured two loans from B, one fkor P 500,000.00 and the other for P
1,000,000.00, paytable on different dates. Bokth have fallen due. Is B obliged
tko file only one complaint against A for the recoverhy of both loans? Explain.
(2%)

Suggested Answer:

a. The rule on joinder of causes of action is that a party may in one leading
assert, in the alternative or otherwise, as many causes of action as he
may have against an opposing party, provided that the rule on joinder of
parties is complied with; the joinder shall not include special civil
actions or actions governed by special rules, but may include causes of
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

action pertaining to different venues or jurisdictions provided one cause

of action falls within the jurisdiction of RTC and venue lies therein; and
the aggregate amount claimed shall be the test of jurisdiction where the
claims in all the causes of action are principally for the recovery of
money. (Sec. 5, Rule 5 of the 1997 Rules)
b. No. Joinder is only permissive since the laons are separate loans which
may be goverened by the different terms and conditions. The two loans
give rjise to two separate causes of action and may be the basis of two
separate complaints.

QUESTION 1998

Give the effects of the Splitting a single cause of action.

SUGGESTED ANSWER:

The effect of splitting a single cause of action is found in the rules as follows: If
two or more suits are instituted on the basis of the same cause of action, the
filing of one or the judgment on the merits in any one is available as a ground for
the dismissal of the others. (Sec 4 Rule 2, 1997 Rules of Civil Procedure.

Question no. 4 (1996)

1) Distinguish joinder of causes of action from joinder of parties.
Joinder of causes of action may be made in the same complaint by one party against
another: or by or against several parties. In cases of joinder of causes of action by
one party against another, the totality of the demand determines the jurisdiction of the
court.
But in cases of joinder of causes of action by or against several parties, the right to
relief must arise out of the same transactions or series of transactions and there must
be a common question of fact or law. If these requisites are present, the totality of the
demand determines the jurisdiction of the court. (section 6, rule 3; flores vs. Mallare-
philips, 144 scra 377).

2) The complaint filed before the regional trial court of manila states two (2) causes
of action, one for recession of contract and the other for the recovery of one
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

hundred thousand pesos (p100.000.), both of which arose out of the same
transaction.
Is the joinder of the two (2) causes of action proper? Explain
Yes, since the first cause of action for rescission of contract falls within the jurisdiction
of the rtc of manila, because the subject is not capable of pecuniary estimation, and
the second cause of action for recovery of php 100,000 is within the jurisdiction of a
lower court and arose out of the same transaction, both may be joined in the
complaint filed with the rtc. (section 5, rule 2)
Question no. 8 (1996)
1) plaintiff filed a complaint for damages against defendant with the court. Defendant
moved to dismiss the complaint on the ground that it states no cause of action. The
court, after hearing. Issued an order deferring the resolution of the motion to dismiss
until the trial since the ground therefore does not appear to be indubitable.
Do you agree with the ruling of the court? Explain.
No. Because whether or not the complaint states a cause of action is clear from the
allegations of the complaint and deferring the resolution of the motion to dismiss
because the ground therefore is not indubitable is not proper. (foster parents plan vs.
Demetrlou. 142 scra 505)
Question no. 11(1996)
1) distinguish special proceeding from an ordinary action.
Answer:
A special proceeding is a remedy to establish the status or right of a party or a particular
fact, while an ordinary action is one by which one party prosecutes another for the
enforcement or protection of a right or the prevention or redress of a wrong. (secs. 1
and 2 of rule 2)
2) a and b are brothers. Nick late father, during his lifetime donated his only real estate
property to b. Thereafter, b sold the property to c who had it titled. C died intestate and
was survived by his son, d. A, claiming that his legume had been impaired, filed a case
for annulment of donation and sale, cancellation of title and recovery of possession of
the property before branch 85 of the regional trial court. D filed a motion to dismiss the
complaint on the ground that there is a pending intestate estate proceeding before
branch 87 involving the estate of c. His father, which included the subject real property.
A opposed the motion arguing that branch 85 has jurisdiction since ownership of the
land is involved and the said branch has jurisdiction to resolve the question of
ownership.
As judge of branch 85 resolve the motion w dismiss.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Answer:
I would deny the motion because it is branch 85 of the regional trial court that has
jurisdiction to decide the question of ownership of said property.
3) a will containing three pages was written in two leaves of paper. The will was written
on the first page of the first leaf, the second page on the reverse side of said first leaf
and the third page on the second leaf: the signature of the testatrix as well as of the
instrumental witnesses were written on the left margin of the first page or first folio and
on the third page or second folio but not on the second page or reverse side of the first
leaf.
May the will be admitted to probate? Explain. Answer.
Answer:
No. Because the law requires that each and every page of the will should be signed by
the testator and his instrumental witnesses. • (art. 808 civil code: caneda us. Court of
appeals. 222 scra 781)
13. What do you understand by the totality rule in determining the jurisdiction of the
courts in civil cases? (1989)

Suggested answer:

Under the totality rule, where there are several claims or cause of action between
the same or different parties embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action, irrespective
of whether the causes of action arose out of the same or different transactions.
(sec.33 of bp129; sec.11 of interem rules)

Note: totality rule subject to the rule on joinder of parties. Where two
or more plaintiffs, having separate causes of action, sue one
defendant or a plaintiff sues one or more defendants in a single
complaint, based on several causes of action for or against each
other, respectively, the totality rule applies only where there is
common question of fact or law among them as provided in section 6
of rule 3. When there are several parties-plaintiffs or defendants and
there are several causes of action, when you join the causes of action
there will necessarily be a joinder of parties. In such a case there can
only be a proper joinder of causes of action when there is a proper
joinder of parties and the totality rule applies only when the joinder is
proper. (civil procedure notes, justice gabriel ingles)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

14. Marissa brought an action against dely and inday in one complaint before the
regional trial court of manila. As her first cause of action, marissa alleges that
dely purchased from her on various occasions truck tires worth p12,000 but
refused to pay the said amount despite several demands. As her second cause
of action, marissa alleges that inday likewise purchased from her on several
occasions truck tires worth p10,000 but refused to pay the said amount despite
repeated demands. The total amount of marissa’s demands against the two is
p22,000. Both dely and inday now separately move to dismiss the complaint on
the ground that the rtc has no jurisdiction over the case. How would you resolve
the motions? Explain. (1989)

Suggested answer:

I would grant said motions to dismiss, because the totality rule is subject to the
rule on permissive joinder of parties. In this case, there is misjoinder of parties
defendants in as much as the claims against two defendants are separate and
distinct from each other and cannot be joined in a single complaint. Neither claim
falls within the jurisdiction of the regional trial court. (flores v. Mallare-philipps,
142 scra 377)

15. What is jurisdiction and how does it differ from cause of action? How are they
acquired? Explain (1988)

Suggested answer:

(a) Jurisdiction is the authority to hear and determine a cause, the right to act in a
case. It is given by law and in the manner prescribed by law; whereas cause
of action is an act or omission of one party in violation of the legal rights of the
other

16. Luis is the owner of a five-door apartment unit three doors of which he has
leased to fe, gary, and marilou for a monthly rental of 250.00 per door. Fe, gary,
and marilou have been his tenants for close to thirty years at that rate. He
occupies the fourth door as his own residence. The fifth door is vacant. Alleging
that he need to repossess all three doors for the use of his son, fern, who had
recently gotten married, and who does not allegedly have a residence of his
own, he sued, after the requisite letters to vacate, fe, gary, and marilou before
the metropolitan trial court for unlawful detainer, fe, gary, and marilou answered
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

the complaint and set up the defense that ejectment was not proper because the
fifth door was available for fern’s residence. At the trial, they likewise
endeavored to prove that fern has in fact a residence of his own and that the suit
was luis mere strategy to force them to agree to a rental hike of 1,500.00 a door,
in violation of the rental laws. The trial judge, however, decreed ejectment. On
appeal, to the regional trial court, fe gary, and marilou alleged that the decision
was null and void, for lack of jurisdiction, there having been no prior
confrontation among the parties before the lupong tagapamayapa pursuant to
presidential decree no. 1508. Luis countered that the jurisdictional question not
having been raised below, it cannot be raised for the first time on appeal.
(a) Can fe, gary, and marilou validly challenge the 65 jurisdiction of the
metropolitan trial court? Explain
(b) What is the effect of luis failure to resort to the conciliation process before
the lupong tagapamayapa provided for in pd no. 1508? Explain (1988)

Suggested answer:

(a) No, because lack of prior confrontation among the parties before the
lupong tagapamayapa pursuant to presidential decree no. 1508 does not
affect the jurisdiction of the metropolitan trial court over the action for
unlawful detainer. (it is presumed that the complaint was filed within one
year from the demand to vacate) (rayales vs iac, 127 scra 470)
(b) Luis failure to resort to the conciliation process affects the sufficiency of
his cause of action and makes his complaint subject to dismissal on the
ground of lack of cause of action or prematurity.

Rule 3: parties to a civil action

Death of party; duty of counsel (2016)

Chika sued gringo, a venezuelan, for a sum of money. The metropolitan trial court
of manila (metc) rendered a decision ordering gringo to pay chika p50,000.00 plus legal
interest. During its pendency of the appeal before the rtc, gringo died of acute
hemorrhagic pancreatitis. Atty. Perfecto, counsel of gringo, filed a manifestation
attaching the death certificate of gringo and informing the rtc that he cannot substitute
the heirs since gringo did not disclose any information of his family. As counsel for
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

chika, what remedy can you recommend to your client so that the case can move
forward and she can eventually recover her money? Explain. (5%)
Suggested answer
As counsel for chika, i would recommend that she immediately procure the appointment
of an executor or administrator for the estate of gringo. Section 16, rule 3 of the 1997
rules of civil procedure provides that 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. After the appointment of an executor or administrator, the action shall be
allowed to continue until entry of final judgment. A favorable judgment obtained by the
plaintiff therein shall be enforced in the manner especially provided in these rules for
prosecuting claims against the estate of a deceased person (section 20, rule 3, rules of
court).
Another suggested answer
As counsel for chika, i would recommend the filing of the money judgment as a claim
against the estate of gringo. Under section 20. Rule 3 of the rules of court, when the
action is on recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed but shall instead be allowed
to continue until entry of final judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided in these rules for
prosecuting claims against the estate of a deceased person. Relative thereto, section 5,
rule 86 of the rules of court provides that all claims for money against the decedent,
arising from contract, express or implied, whether the same be due, not due, or
contingent, all claims for funeral expenses and expenses for the last sickness of the
decedent, and judgment for money against the decedent, must be filed within the time
limited in the notice; otherwise they are barred forever.
Accordingly, i would recommend the filing of the money judgment as a claim against the
estate of gringo.

Joinder of parties (2015)

Strauss filed a complaint against wagner for cancellation of title. Wagner moved to
dismiss the complaint because grieg, to whom he mortgaged the property as duly
annotated in the tct, was not impleaded as defendant.
(a) should the complaint be dismissed? (3%)
(b) if the case should proceed to trial without grieg being impleaded as a party to the
case, what is his remedy to protect his interest? (2%)
Suggested answer
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(a) no. The complaint should not be dismissed because the mere non-joiner of an
indispensable party is not a ground for the dismissal of the action (section 11, rule 3,
rules of court; republic v. Hon. Mangotara, g.r. No. 170375, july 7, 2010, 624 scra 360,
431).
(b) if the case should proceed to trial without grieg being impleaded as a party, he may
intervene in the action (section 1, rule 19, rules of court). He may also file a petition for
annulment of judgment under rule 47 of the rules of court. In metrobank v. Hon.
Floro alejo (g.r. No. 141970, september 10, 2001), the supreme court held that in a suit
to nullify an existing torrens certificate of title (tct) in which a real estate mortgage is
annotate the mortgagee is an indispensable party. In such suit, a decision canceling the
tct and the mortgage annotation is subject to a per for annulment of judgment, because
the non-joinder of the mor 80% deprived the court of jurisdiction to pass upon the
controversy. “
Death of a party (2014)
Prince chong entered into a lease contract with king kong over a commercial building
where the former conducted his hardware business. The lease contract stipulated,
among others, a monthly rental of p50,000.00 for a four (4)-year period commencing on
january 1, 2010. On january 1, 2013, prince chong died. Kin ii chong was appointed
administrator of the estate of prince chong, but the former failed to pay the rentals for
the months of january to june 2013 despite king kong’s written demands. Thus, on july
1, 2013, king kong filed with the regional trial court (rtc) an action for rescission of
contract with damages and payment of accrued rentals as of june 30, 2013. (4%)

(a) can kin ii chong move to dismiss the complaint on the ground that the rtc is without
jurisdiction since the amount claimed is only p300,000.00?

Suggested answer:

No, kin ii chong cannot move to dismiss the complaint.

An action for rescission of contract with damages and payment of accrued rentals is
considered incapable of pecuniary estimation and therefore cognizable by the regional
trial court (ceferina de ungria v. Honorable court of appeals, g.r. No. 165777, july 25,
2011).

(b) if the rentals accrued during the lifetime of prince chong, and king kong also filed the
complaint for sum of money during that time, will the action be dismissible upon prince
chong’s death during the pendency of the case?

Suggested answer:

No, the action will not be dismissible upon prince chong’s death during the pendency of
the case.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

When the action is for recovery of money arising from contract, and the defendant dies
before entry of final judgment in the court in which the action was pending at the time of
such death, it shall not be dismissed but shall instead be allowed to continue until entry
of final judgment. A favorable judgment obtained by the plaintiff shall be enforced under
rule 86 (section 20, rule 3 of the rules of court).

Relative thereto, since the complaint for sum of money filed by king kong survives the
death of prince chong, the case shall not be dismissed and the court shall merely order
the substitution of the deceased defendant (atty. Rogelio e sarsaba v. Fe vda. De te,
g.r. No. 175910, july 30, 2009).

Question (2005)
Raphael, a warehouseman, filed a complaint against v corporation, x corporation
and y corporation to compel them to interplead. He alleged therein that the three
corporations claimed title and right of possession over the goods deposited in his
warehouse and that he was uncertain which of them was entitled to the goods. After
due proceedings, judgment was rendered by the court declaring that x corporation was
entitled to the goods. The decision became final and executory.
Raphael filed a complaint against x corporation for the payment of p100,000.00
for storage charges and other advances for the goods. X corporation filed a motion to
dismiss the complaint on the ground of res judicata. X corporation alleged that raphael
should have incorporated in his complaint for interpleader his claim for storage fees and
advances and that for his failure he was barred from interposing his claim. Raphael
replied that he could not have claimed storage fees and other advances in his complaint
for interpleader because he was not yet certain as to who was liable therefore.
Resolve the motion with reasons.

Suggested answer:
The motion to dismiss should be granted. Raphael should have incorporated in
his complaint for interpleader his claim for storage fees and advances. They are part of
raphael's cause of action which he may not be split. The filing of the interpleader is
available as a ground for dismissal of the second case. (sec. 4, rule 2, 1997 rules of civil
procedure). It is akin to a compulsory counterclaim which, if not set up, shall be barred.
(sec. 2, rule 9, 1997 rules of civil procedure). The law also abhors the multiplicity of
suits; hence, the claim for storage fees should have been made part of his cause of
action in the interest of complete adjudication of the controversy and its incidents.
(arreza v diaz, 364 scra 88 [2001]).

Alternative answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The motion to dismiss should not be granted. Raphael not being a party to the
case cannot file a counter-complaint. A complaint for interpleader which is a special civil
action is merely an action for the parties to interplead among themselves. The claim for
storage fees is a separate and distinct cause of action. It is an ordinary action for
collection which cannot be joined in a special civil action. (sec. 5(b) rule 2)

Question: (2005)
Perry is a resident of manila, while ricky and marvin are residents of batangas
city. They are the co-owners of a parcel of residential land located in pasay city with an
assessed value of p100,000.00. Perry borrowed p100,000.00 from ricky which he
promised to pay on or before december 1, 2004. However, perry failed to pay his loan.
Perry also rejected ricky and marvin’s proposal to partition the property.
Ricky filed a complaint against perry and marvin in the regional trial court of
pasay city for the partition of the property. He also incorporated in his complaint his
action against perry for the collection of the latter’s p100,000.00 loan, plus interests and
attorney’s fees.
State with reasons whether it was proper for ricky to join his causes of action in
his complaint for partition against perry and marvin in the regional trial court of pasay
city. (5%)

Suggested answer:
It was not proper for ricky to join his causes of action against perry in his
complaint for partition against perry and marvin. The causes of action may be between
the same parties, ricky and perry, with respect to the loan but not with respect to the
partition which includes marvin. The joinder is between a partition and a sum of money,
but the partition is a special civil action under rule 69, which cannot be joined. (sec. 5,
rule 2, 1997 rules of civil procedure.). Also, the causes of action pertain to different
venues and jurisdiction. The case for a sum of money pertains to the municipal court
and cannot be filed in pasay city because the plaintiff is from manila while ricky and
marvin are from batangas city. (sec. 5, rule 2, 1997 rules of civil procedure.)

Question: (2002)
A. P sued a and b in one complaint in the rtc-manila, the cause of action against a
being on an overdue promissory note for p300,000.00 and that against b being
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

on an alleged balance of p300,000.00 on the purchase price of goods sold on

credit. Does the rtc-manila have jurisdiction over the case? Explain. (3%)

B. P sued a in the rtc-manila to recover the following sums: (1) p200,000.00 on an

overdue promissory note, (2) p80,000.00 on the purchase price of a computer,
(3) p150,000.00 for damages to his car and (4) p100,000.00 for attorney’s fees
and litigation expenses. Can a move to dismiss the case on the ground that the
court has no jurisdiction over the subject matter? Explain. (2%)
Suggested answer:
A. No, the rtc-manila has no jurisdiction over the case. A and b could not be joined
as defendants in one complaint because the right to relief against both
defendants do not arise out of the same transaction or series of transactions and
there is no common question of law or fact common to both. (rule, sec. 6).
Hence, separate complaints will have to be filed and they would fall under the
jurisdiction of the metropolitan trial courts. [flores vs. Mallare-philipps, 144 scra
377 (1996).

B. No, because the rtc-manila has jurisdiction over the subject matter. P may sue a
in one complaint asserting as many causes of action as he may have and since
all the claims are principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. [rule 2, sec. 5(d)]. The aggregate amount
claimed is p430, 000.00, exclusive of the amount of p100, 000.00 for attorney’s
fees and expenses of litigation. Hence, the rtc-manila has jurisdiction.

QUESTION 2000
PJ engaged the services of Atty. ST to represent him in a civil case filed by OP against
him which was docketed as Civil Case No. 123. A retainership agreement was executed
between PJ and Atty. ST whereby PJ promised to pay Atty. ST a retainer sum of
P24,000.00 a year and to transfer the ownership of a parcel of land to Atty. ST after
presentation of PJ’s evidence. PJ did not comply with his undertaking. Atty. ST filed a
case against PJ which was docketed as Civil Case No. 456. During the trial of Civil
Case no. 456, PJ died.
i) Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in civil
case No. 456?
ii) Will your answer be the same with respect to the real property being
claimed by Atty. ST in civil Case No. 456? Explain.
SUGGESTED ANSWER:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(i) No. Under Sec. 20, Rule 3, 1997 Rules of Civil Procedure, when the
action is for the recovery of money arising from contract, express or implied, and
the defendant dies before entry of final judgment in the court in which the action
is pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained
by the plaintiff shall be enforced in the manner especially provided in the Rules
for prosecuting claims against the estate of a deceased person.

(ii) Yes, my answer is the same. An action to recover real property in

any event survives the death of the defendant.(Sec. 1, Rule 87, Rules of Court).
However, a favorable judgment may be enforced in accordance with Sec. 7(b)
Rule 39(1997 Rules of Civil Procedure) against the executor or administrator or
successor in interest of the deceased.

QUESTION (1998)

Give the effects of Non-joinder of a necessary party

Suggested Answer:

1. The effect of the non-joinder of a necessary party may be stated as

follows: The court may order the inclusion of an omitted necessary party if
jurisdiction over his person may be obtained. The failure to comply over
his person may be obtained. The failure to comply with the order for his
inclusion without justifiable cause is a waiver of the claim against such
party. The court may proceed with the action but the judgment rendered
shall be without prejudice to the rights of such necessary party. (Sec 9
Rule 3, 1997 Rules of Civil procedure)

QUESTION (1998)

A filed a complaint for the recovery of ownership of land against B who was represented
by her counsel X. In the course of the trial, B died. However, X failed to notify the court
of B’s death. The court proceeded to hear the case and rendered judgment against B.
After the judgment became final, a writ of execution was issued against C, who being
B’s sole heir, acquired the property.

1. If you were counsel of C, what course of action would you take?

SUGGESTED ANSWER:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

As counsel of C, I would move to set aside the writ of execution and the judgment for
lack of jurisdiction and lack of due process in the same court because the judgment is
void. If X had notified the court of B’s death, the court would have ordered the
substitution of the deceased by C, the sole heir of B. (Sec.10 of Rule 3) The court
acquired no jurisdiction over C upon whom the trial and the judgment are not binding.
(Ferreira vs. Ibarra Vda. De Gonzales, 104 Phil. 143; Vda. De la cruz vs. Court of
Appeals, 146 SCRA 173.)

QUESTION (1997)

What is the effect of the death of a party upon a pending action?

SUGGESTED ANSWER:

a. When the claim in a pending action is purely personal, the death of

either the party extinguishes the claim and the action is dismissed. When
the claim is not purely personal and is not thereby extinguished, the party
should be substituted by his heirs or his executor or administrator. (Sec.
16, Rule 3, 1997 Rules) If the action is for recovery of money arising from
contract, express or implied, and the defendant dies before entry of final
judgment in the court which the action was pending at the time of such
death, it shall not be dismissed but shall instead be allowed to continue
until entry of final judgment. A favourable judgment obtained by the
plaintiff shall be enforced in the manner provided in the rules for
prosecuting claims against the estate of a deceased person. (Sec. 20,
Rules 3, 1997 Rules)

QUESTION (1997)

When A (buyer) failed to pay the remaining balance of the contract

price after it became due and demandable, B (seller) sued him for
collection before the RTC. After both parties submitted their respective
evidence, A perished in a plane accident. Consequently, his heirs brought
an action for the settlement of his estate and moved for the dismissal of
the collection suit.
1.)Will you grant the motion? Explain.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

2.)Will your answer be the same if A died while the case is already on appeal to
the Court of Appeals? Explain.
3.)In the same case, what is the effect if B died before the RTC has rendered
judgment?

SUGGESTED ANSWER:

1. No, because the action will not be dismissed but shall instead be allowed to
continue until entry of final judgment. (Id.)

2. No. If A died while the case was already on Appeal in the Court of Appeals,
the case will continue because there is no entry yet of final judgment. (Id.)

3. The effect is the same. The action will not be dismissed but will be allowed
to continue until entry of final judgment.

Question no. 4 (1996)

A filed an action against b, driver of the truck. C. Owner of said truck, and d. Insurer of
the truck, for damages when the truck rammed his car. A and d entered into a
compromise agreement upon an amount lower than that sued upon by a against all
three defendants. Accordingly, the court dismissed the case against d. B and c moved
to dismiss the case against them on the ground that, being indispensable parties under
a common cause of action, non-inclusion of d would not make the case prosper.
Are the defendants indispensable parties? How would you resolve the motion?
I would deny the motion. D is not an indispensable party. The liability of the insurer d is
based on the contract of insurance whereas the liability of b and c is based on quasi-
delict. Hence, the plaintiff does not have a common cause of action against all the
defendants and the dismissal of the complaint against d will not affect the complaint
against b and c. (inson vs. Ca, 239 scra 58)

Question no. 9 (1995)

Donald was convicted of serious physical injuries inflicted on his house help paula.
He appealed but died during the pendency of his appeal.
1.What is the effect of the death of donald on his criminal liability? Explain.

2.What is the effect of his death on his civil liability based solely on his criminal act?
Explain.

3.What is the effect of his death on his civil liability based on a quasi- delict or tort?
Explain.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

4.What is the effect of his death if in the criminal case paula did not make the
necessary reservation to file a separate civil action for damages? Explain.
5.What is the effect of his death if paula reserved her right to file a separate civil
action but had not yet done so when donald died? Explain.

Answer:

1.Donald's criminal liability is extinguished by his death. (art. 8911). Rpc)

2.The death of donald pending appeal extinguishes not only his criminal liability but
also the civil liability based solely thereon. (people us. Boyar's, 236 scra 239)
3.his death does not affect his civil liability based on quasi-delict or tort.

4.If paula did not make the necessary reservation to file a separate civil action
for damages. She could still file a separate civil action against the
executor/administrator or heirs of the estate of the accused. (id.)
Alternative answer:

Despite the dismissal of the criminal action. The appeal shall continue with
respect to the civil liability for damages of the accused who will be substituted
by his executor/ administrator or heirs. Since despite the acquittal of an
accused he can be made civilly liable under sec. 2 of rule 120 (roy padilla us. Ca, 129
scra 588: people vs..jalandont. 131 scra 454. Etc.) A similar rule should be applied
in case of death of an accused.
The death of donald will not affect paula's right to file a separate civil action against
the executor/administrator or heirs of donald

Question no. 14 (1994)

Four hundred residents of barrio ramos initiated a class action suit through albert, a
former mayor of the town, to recover damages sustained due to their exposure to toxic waste
and fumes emitted by the cooking gas plant of top fuel gas corporation located in the town.

Is the class suit proper?

Answer:
No. The class suit is not proper. Each plaintiff suffered separate and distinct damages from
their exposure to the toxic waste and fumes emitted by the cooking gas plant. Each
of them has to prove his or her damages. (newsweek. Inc. I). Intermediate appellate
court. 142 scra 171 11986); heirs of passengers of dorm paz. March 3. 1988).

Question no. Iv (1992)

After termination of trial on the merits, and as the trial judge was about to finish his
decision dismissing plaintiffs suit for payment of a purported p369,000.00 loan, the
defendant died. His counsel accordingly filed with the court a notice of defendant's death.
Simultaneously. He moved that plaintiff's suit be dismissed, to be thereafter pursued as a
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

money claim in the proceeding for the settlement of defen-dant's estate. The judge denied the
motion to dismiss on the ground that there is no need for any further proceeding since he is
going to dismiss the case anyway in a forthcoming decision.
Three (3) days later, the decision dismissing the case was promulgated.
Did the judge act correctly? Explain your answer.
Suggested answer:
No, because in an action for the recovery of money, if the defendant dies before a
final judgment is rendered by the regional trial court, the action shall be dismissed
and prosecuted as a money claim. (sec. 21 of rule 3) the fact that the judge was ready to
render a decision dismissing the case does not prevent the application of the rule.

Another acceptable answer:

Yes, the judge acted correctly in deciding the case, because the defendant died
after termination of the trial on the merits. To dismiss the case and require the parties
to present their evidence all over again before the probate court would cause
unnecessary expense and delay. The plaintiff may appeal from the decision and if the
judgment is reversed, the judgment entered would then be filed as a proven money claim
with the probate court.
Question no. V (1992)
(a) plaintiff sued to recover an unpaid loan and was awarded p333,000.00 by the
regional trial court of manila. Defendant did not appeal within the period allowed by
law. He died six days after the lapse of the period to appeal. Forthwith, a petition
for the settlement of his estate was properly filed with the regional trial court of
pampanga where an inventory of all his assets was filed and correspondingly
approved. Thereafter, plaintiff filed a motion for execution with the manila court
contending therein that the motion was legally justified because the defendant died
after the judgment in the manila court had become final. Resolve the motion and state
your reasons.

suggested answer:
A) motion for execution denied.
Although the defendant died after the judgment had become final and executory, it
cannot be enforced by a writ of execution against the estate of the deceased which is
in custodia legis. The judgment should be filed as a proven money claim with the
regional trial court of pampanga (paredes u. Moya, 61 scra 527)

B) under the same set of facts as (a), a writ of execution was issued by the manila
court upon proper motion three days after the lapse of the period to appeal. The
corresponding levy on execution was duly effected on defendant's parcel of land worth
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

p666,000.00 a day before the defendant died. Would it be proper, on motion, to lift the
levy on defendant's property? State the reasons for your answer.

Suggested answer:

B) no, since the levy on execution was duly effected on defendant's parcel of land a
day before the defendant died, it was valid. The land may be sold for the satisfaction of the
judgment and the surplus shall be accounted for by the sheriff to the corresponding
executor or administrator. (sec. 7-c of rule 39)

17. Isagani drove the car of his father, pedro, and left it in the parking area of the
fairview motel where he was a guest. Isagani entrusted the key of the car to the
security guard hired by the prime resort company, the owner/operator of the
motel. Emilio, pretending to be the brother of isagani, got the key from the
security guard and drove the car away. The car was never recovered. Later,
pedrosued prime resort company for the value of the carnapped vehicle plus
damages. Prime resort sets up the defense that pedro has no interest in the
case, hence has no cause of action, as he was not the guest of the motel but his
son, isagani. Is the defense tenable? Explain.(1989)

Suggested answer:

No, because pedro is the owner of the car which was carnapped due to the fault
or negligence of the security guard of the owner/operator of the motel in which
his son isagani was a guest. Hence, pedro is a real party in interest. (dilson
enterprises vs. Iac, feb. 27, 1989)

18. Agustin, a 21-year old son of the spouses edgardo and gloria, was a paying
passenger who suffered serious physical injuries when the bus he was riding fell
off a cliff due to the recklessness of its driver. The bus belonged to the inter-city
transit. The spouses, together with agustin, sued for damages. After inter-city
transit filed its answer, agustin, in consideration of p10,000.00, executed a
“release of claim” on the basis thereof, inter-city filed a motion to dismiss alleging
that the claim had already been paid and released. Plaintiff-spouses opposed the
motion and asserted that their son was totally dependent on them for support;
that his hospitalization and other medical expenses were shouldered by them;
that they were not even consulted on the “release of claim”; and, that the “release
claim” could not operate as a valid ground for dismissal because it did not have
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

the conformity of all the parties since only their son, agustin, signed it. Decide the
motion to dismiss. (1989)

Suggested answer:

Motion to dismiss is granted. The contract of carriage was between agustin, who
was of legal age, and the inter-city transit. Hence, the release claim executed by
him is valid. (baliwag transit vs. Court of appeals, january 31, 1989)

Alternative answer:

Motion to dismiss is granted only with respect to agustin. The parents of agustin
have a cause of action against the inter-city transit to the extent of the expenses
incurred by them due to the recklessness of its driver.

19. An airplane carrying 200 passengers crashed somewhere in the jungles of

agusan. All the passengers and crew perished. Twenty (20) relatives of the
fatalities files for themselves and in behalf of the relative of all those who
perished in the mishap a class suit for damages totaling p5 million against the
airline. The proprietary of the class suit is questioned by the defendant. Resolve
the issue. (1991)

Suggested answer:

A class suit is not proper in this case because there is no common or general
interest in the subject matter of the controversy. Each of the plaintiffs has a
separate clain for damages. (newsweek v. Iac, 142 scra 171; administrative
matter no. 88-1-646-0 on request of plaintiffs, heirs of passengers of the doña
paz, march 2, 1988.)

Rule 4: venue

Venue (2014)
Landlord, a resident of quezon city, entered into contract with tenant, a resident of
marikina city, over a residential house in las piñas city the lease contract provided,
among others, for a monthly rental of p25,000.00, plus ten percent (10%) interest rate
in case of non-payment on its due date. Subsequently, landlord migrated to the united
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

states of america (usa) but granted in favor of his sister, maria, a special power of
attorney to manage the property and file and defend suits over the property rented out
to tenant. Tenant failed to pay the rentals due for five (5) months.

Maria asks your legal advice on how she can expeditiously collect from tenant the
unpaid rentals plus interests due. (6%)

Suggested answers:

(a) what judicial remedy would you recommend to maria?

I will advise maria to immediately send a letter to the tenant demanding the immediate
payment of the unpaid rentals plus interests due. If the tenant refuses, maria can avail
any of the following remedies:

(1) a complaint under a.m. No. 08-8-7-sc or the rules of procedure for small claims
cases. Maria should nonetheless waive the amount in excess of p100,000 in order for
her to avail of the remedy under the said rules. (2) a complaint for collection of sum of
money under the rules on summary procedure, since maria is only claiming the unpaid
rentals and interest due from tenant. (3) if the tenant refuses or is unable to pay the
rentals within one year from receipt of the last demand to vacate and pay, i would
advise maria to file an action for unlawful detainer.

(b) where is the proper venue of the judicial remedy which you recommended?

1. If maria decides to file a complaint for collection of sum of money under the rules of
summary procedure or small claims, the venue is the residence of the plaintiff or
defendant, at the election of the plaintiff (section 2, rule 4, rules of court). Hence, it may
be in quezon city or marikina city, at the option of maria.

2. If maria files an action for unlawful detainer, the same shall be commenced and tried
in the municipal trial court of the municipality or city wherein the real property involved,
or a portion thereof, is situated (section 1, rule 4 of the rules of court). Therefore, the
venue is las piñas city.

(c) if maria insists on filing an ejectment suit against tenant, when do you reckon the
one (1) year period within which to file the action? The reckoning point for determining
the one-year period within which to file the action is the receipt of the last demand to
vacate and pay (section 2, rule 70 of the rule of court).

2012

Venue; real actions

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Angela, a resident of quezon city, sued antonio, a resident of makati city before the rtc
of quezon city for the reconveyance of two parcels of land situated in tarlac and nueva
ecija, respectively. (2012)

A. May her action prosper?

Suggested answer:

a) Yes, the action may prosper because improper venue can be waived; and there
appears to e no objection from the defendant. An action reconveyance of parcels
of land partakes of an action to recover title to or possession of such land; hence
a real action which should be filled in the place where the parcels of land are
situated in tarlac and nueva ecija.

B) assuming that the action was for foreclosure on the mortgage of the same parcels of
land, what is the proper venue for the action? (3%)

Venue; real actions

A, a resident of quezon city, wants to file an action against b, a resident of pasay, to

compel the latter to execute a deed of sale covering a lot situated in marikina and that
transfer of title be issued to him claiming ownership of the land. Where should a file the
case? Explain. (2012)

Suggested answer:

A should file the case in marikina, the place where the real property subject matter of
the case is situated. An action for specific performance would still be considered a
real action where it seeks the conveyance or transfer of real property, or ultimately,
the execution of deeds of conveyance or real property. (gochan v. Gochan, 423 phil,
491, 501 (2001); copioso v. Copioso, 391 scra 325 (2002). Since it is a real action,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

the venue must be in the place where the real property involved, or a portion thereof,
is situated. (rule 4, sec. 1, rules of court).

Question: (2006)
What do you mean by (a) real actions and (b) personal actions?

Suggested answer:
Real actions are actions affecting title to or possession of real property or an
interest therein. All other actions are personal actions. (sec1, rule4).

Question no. 14 (1995)

Alice, a resident of valenzuela. Metro manila, filed with the metropolitan:ft-

tal court thereat a complaint for damages against her next-door neighbor rosa
for p100,000.00 with prayer for preliminary attachment. She alleged that
rosa intrigued against her honor by spreading unsavory rumors about her
among their co-workert at the phoenix knitwear factory located at valenzuela.

After pre-trial the court mote proprto referred the case for amicable
settlement between the parties to the [.upon tagapayapa of barangay 2, zone
3, of vale nzuela where the factory is located rosa questioned the order
contending that the court had no authority to do so as both parties had already
gone through pre-trial where amicable settlement was foreclosed and the parties
were already going to trial.

1. Comment on rosa's contention. Explain.

2. Rosa also opposed the referral to the lupon tagapayapa of barangay 2.

Zone 3. Claiming that the venue was wrong as the proper lupon was that of barangay
1. Zone 5, where she and alice reside.

Is rosa's opposition valid? Explain.

3. Suppose that the lupon of barangay 2, zone 3. Is successful in forging an

amicable settlement between alice and rosa, is the compromise immediately
executory? Explain.

4. How, when and by whom shall the compromise agreement be enforced?

Explain.

Answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

1. Rosa is not correct. The local government code provides that in non-criminal
cases not falling within the authority of the lupon, the court may at any time before trial
refer the case to the lupon concerned for amicable settlement (sec. 4081

2. No, because the law also provides that the venue of disputes artstrig at the
workplace of the contending parties shall be brought in the barangay where such
workplace is located. (sec. 409[d])

3. No. Because any compromise settlement shall be submitted to the court which
referred the case for approval. (sec. 416)

4. Upon approval thereof. It shall have the force and effect of a judgment of the court
and shall be enforced in accordance with section 6. Rule 39.

Question no. 1(1994)

Distinguish:
1) an action in rem from an action quasi in rem.
2) an action quasi in rem from an action to personam.
3) an action in personam from a personal action.
4) an action in rem from a real action.
5) a personal action from a local action.

Answer:
•
1) an action in rent is an action against all who might be minded to make an objection of
any sort against the right sought to be established. While an action quasi in rem is an action
against an individual although the purpose of the suit is to subject his interest in a
particular property to the obligation or lien burdening the property.
The judgment rendered in actions in rent binds the whole world, while the judgment
rendered in actions quasi in rem is conclusive only between the parties. (banco espanol
filipino v. Palanca. 37 phil. 921: sandejas u. Robles. 81 phil. 421.)
2) an action quasi in rem • as stated. Is an action against a person over a particular
property ordains relating thereto. While an action inpersonam is an action to establish a claim
against a person with a judgment that binds him personally.
3) an action in personam as stated. Is an action against a person on the basis of his
personal liability while a personal action is an action where the plaintiff seeks the
recovery of personal property. The enforcement or resolution of a contract or the recovery
of damages. (hernandez v. Rural rank of lucerta. Inc. 8i scra 75 [1981]).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

4) an action in rem is as stated above, while a real action is an action affecting title to real
property or for the recovery of possession, or for partition or condemnation of, or foreclo-
sure of a mortgage on. Real property. (rule 4. Sec. 2[a]).
5) a personal action is as stated above. While a local action is that which must be
brought in a particular place.

20. A and b, both residents of batangas entered into contract of lease over a parcel
of land belonging to b, located in calapan, mindoro.
A filed a complaint before the regional trial court, sitting in batangas city, for the
rescission of the lease contract of the land in mindoro.
B filed a motion to dismiss on the ground that the batangas court did not have
jurisdiction over the subject matter, the land being located in mindoro. B however
did not alleged improper venue in his motion. (1988)

Suggested answer:

Motion to dismiss id denied. The fact that the land is located in mindoro does not
affect the jurisdiction of the rtc sitting in batangas city. The proper venue of the
action is the rtc in mindoro. However, since b did not object to the improper
venue in his motion, that ground is deemed waived. (section 4, rule 4).

21. “a” leased his commercial land and building in malate, manila, to “b”, a resident
of malolos, bulacan. The contract of lease provided that in the event “a” violates
the contract, “b” may file suit in manila. “a’s” residence, and if “b” violates the
contract, “a” may sue “b” in malolos. “b” violated the contract, entitling “a” to sue
for ejectment.

If you were the lawyer of “a”, where and which court can you lawfully file
the action for ejectment? Explain. (1987)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

RULE 6 KINDS OF PLEADINGS

2010

Pleadings; counterclaim

Antique dealer mercedes borrowed p1,000,000 from antique collector benjamin.

Mercedes issued a postdated check in the same amount to benjamin to cover the debt.
On the due date of the check, benjamin deposited it but it was dishonored. As despite
demands, mercedes failed to make good the check, benjamin filed in january 2009 a
complaint for collection of sum of money before the rtc of davao.

Mercedes filed in february 2009 her answer with counterclaim, alleging that before the
filing of the case, she and benjamin had entered into a dacion en pago agreement in
which her vintage p1,000,000 rolex watch which was taken by benjamin for sale on
commission was applied to settle her indebtedness; and that she incurred expenses in
defending what she termed a "frivolous lawsuit." she accordingly prayed for p50,000
damages.

a. Benjamin soon after moved for the dismissal of the case. The trial court
accordingly dismissed the complaint. And it also dismissed the counterclaim.

Mercedes moved for a reconsideration of the dismissal of the counterclaim. Pass upon
mercedes’ motion. (2010)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Mercedes’ motion for reconsideration is impressed with merit: the trial court should not
have dismissed her counter-claim despite the dismissal of the complaint.

Since it was the plaintiff (benjamin) who moved for the dismissal of his complaint and at
the time the defendant (mercedes) had already filed her answer thereto and with
counterclaim, the dismissal of the complaint should not carry with it the dismissal of the
counterclaim without the conformity of the defendant-counterclaimant. The revised rules
of court now provides in rule 17, sec. 2 thereof that “if a counterclaim had been pleaded
by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the
dismissal shall be limited to the complaint. The dismissal shall be without prejudice to
the right of the defendant to prosecute his counterclaim.

b. Suppose there was no counterclaim and benjamin’s complaint was not

dismissed, and judgment was rendered against mercedes for p1,000,000. The
judgment became final and executory and a writ of execution was
correspondingly issued.

Since mercedes did not have cash to settle the judgment debt, she offered her toyota
camry model 2008 valued at p1.2 million. The sheriff, however, on request of benjamin,
seized mercedes’ 17th century ivory image of the la sagrada familia estimated to be
worth over p1,000,000.

Was the sheriff’s action in order? (3%)

Suggested answer:

No, the sheriff’s action was not in order. He should not have listened to benjamin, the
judgment oblige/creditor, in levying on the properties of mercedes, the judgment
obligor/debtor. The option to immediately choose which property or part thereof may be
levied upon, sufficient to satisfy the judgment, is vested by law (rule 39, sec. 9(b) upon
the judgment obligor, mercedes, not upon the judgment oblige, benjamin, in this case.
Only if the judgment obligor does not exercise the option, is the sheriff authorized to
levy on personal properties if any, and then on the real properties if the personal
properties are insufficient to answer for the judgment.

Pleadings; counterclaim
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(d) a counterclaim is a pleading.

Suggested answer:

True. A counterclaim is a pleading by which a defending party makes a claim against an

opposing party (sec. 6, rule 6, rules of court).

Question 1998
A. What is counter claim? (2%)

B. Distinguish a counterclaim from crossclaim. (2%)

C. A, who engaged in tile installation business, was sued by EE Industries for

breach of contract for installing different marbmle tiles in its offices as
provided in their contract. Without filing any motion to dismiss, A filed its
Answer with Counterclaim theorizing that EE Industries has no legal capacity
to sue because it is not a duly registered corporation. By way of
Counterclaim, A asked for moral and actual damages as her business
depleted as a result of the withdrawal and cancellation by her clients of their
contracts due to the filing of the case. The case was dismissed after the trial
court found that EE Industries is not a registered corporation and therefore
has no legal capacity to sue. However, it set a date for the reception of
evidence in A’s counterclaim. EE Industries opposed on the ground that the
counterclaim could no longer be prosecuted in view of the dismissal of the
main case. Is the stand of EE Industries sustainable? Explain. (2%)

Suggested Answer
a. A counterclaim is any claim which a defending party may have against an
opposing party. (Sec. 6, Rule 6 of the 1997 Rules)

b. A counterclaim distinguish from a cross-claim in that in a cross-claim is any

claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a
counterclaim therein. A counterclaim is against an opposing party while a
cross-claim is against a co party. (Sec. 8, Rule 6 of the 1997 Rule)

c. No, because if no motion to dismiss has been filed, any of the grounds for
dismissal provided in the Rules may be pleaded as an affirmative defense in
the answer which may include counterclaim. This is what A did by filing an
Answer alleging the lack of legal capacity of EE Industries to sue because it
is not a duly registered corporation with counterclaim for damages. The
dismissal of the complaint on this ground is without prejudice to the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

prosecution of the counterclaim in the same action because it is compulsory

counterclaim. (Sec. 6 of Rule 16.)

Question no. 2 (1996)

1) What pleadings are allowed by the rules?
The pleadings allowed by the rules are the complaint, the answer, the
counterclaim, the crossclaim, the reply, the third-party(fourth-party etc) complaint,
under section 2, rule 6)
2) What pleadings must be verified?
Those required by law to be verified such as:
a) Forcible entry and unlawful detainer. (section 1, rule 70)
b) Denial of genuineness and due execution of a written instrument which is the
basis of an action or defense. (section 8, rule 8)
c) Denial of allegations of usury. (section 1, rule 9)
d) Petitions for certiorari, prohibition and mandamus. (rule 65)
e) Pleadings in summary procedure.
3) What is the significance of a lawyer’s signature in the pleadings?
The signature of a lawyer constitutes a certification by him that he has read the
pleading; that to the best of his knowledge, information and belief there is good
ground to support it; and that it is not interposed for delay. (section 5, rule 7)

Question no. 5 (1996)

1) A filed an action against b for recovery of possession of a piece of land. B in his
answer spec 'beatty de nled a's claim and interposed as counterclaim the amount
of p150.000.00 arising from another transaction, consisting of the price of the car
he sold and delivered to a and which the latter failed to pay.
Is b's counterclaim allowed under the rules? Explain.
B's counterclaim is a permissive counterclaim in as, much as it arises out of
another transaction that is the subject-matter ofa's complaint. It is allowed if it is within
the jurisdiction of the court. (sec. 8 of rule 6)
Alternative answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The question does not state in what court a filed the action. If the assessed value
of the property does not exceed p20.000.00. The action may be filed in a municipal
trial. Court, in which case the counterclaim of p150.000.00 may not be allowed
inasmuch as it is not within its jurisdiction.
If the assessed value does not exceed p50, 000.00, the action may be filed in a
metropolitan trial court. In which case the counterclaim of p150.000.00 may be allowed
inasmuch as it is within its jurisdiction. (sec. 33 of bp 129 as amended by ra no. 7691)
If the assessed value exceeds p50, 000.00. The action may be filed in a regional
trial court. If filed in metro manila. The counterclaim of p150.000.00 may not be
allowed, but if filed outside metro manila. It may be allowed. Isec. 19 of bf' 129 as
amended by pa 76911
Question no. 6 (1996)
1)A assembles an. Owner-type jeep for 13 who in turn rents it to x due to
faulty brakes. X figures in a vehicular accident causing him severe injuries. X
files an action for damages against a and b.
May b file a third-party complaint against a for indemnity? Explain.
No. Because what b should file is a crossclaim against his co-defendant a.

Question no. Iii (1992)

Is a "motion to dismiss with counterclaim" sanctioned by the rules of court?

a) If your answer is yes, state your reasons.

b) If your answer is no, give your reasons and state what the defendant should
instead file in court to preserve his counterclaim while maintaining the ground asserted in
his motion to dismiss as an issue that should be the subject of a preliminary hearing.

Suggested answer:

No, because a counterclaim is contained in an answer and not in a motion to dismiss.

What the defendant should do is to plead the ground of his motion to dismiss (except improper
venue) as an affirmative defense in his answer, together with his counterclaim. And ask for a
preliminary hearing on his affirmative defense as if a motion to dismiss had been filed. (sec.
5 of rule 16)
Question no. 16(1994)
Aya sties lea for recovery of a tract of land. Lea seeks in turn to be reimbursed of
the value of improvements she had introduced on the same land and the
payment of damages she had sustained. Should lea file a separate action against
aya for that purpose?
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Answer:
No. Lea's claim cannot be made in a separate action. It is a compulsory
counterclaim in the suit filed by aya against lea for the recovery of the land. A
compulsory counterclaim is one which arises out of an act which is necessarily
connected with the transaction or occurrence that is the subject-matter of the
opposing party's claim and does not require the presence of third parties of whom the
court cannot acquire jurisdiction. If lea's claim is not set up in the suit filed by aya, the
claim is barred. (sec. 4, rule 9: baclayon vs. Court of appeals. 182 scra 761)19909

Alternative answer:
If aya's action for recovery of land is one of forcible entry or unlawful detainer, lea's
claim cannot be filed as a counterclaim but should be filed in a separate action.

Rule 7: Parts Of A Pleading

Compulsory counterclaims (2017)

Abraham filed a complaint for damages in the amount of p750,000.00 against
salvador in the rtc in quezon city for the laiter’s alleged breach of their contract of
services. Salvador promptly filed his answer, and included a counterclaim for
p250,000.00 arising from the allegedly baseless and malicious claims of abraham
that compelled him to litigate and to engage the services of counsel, and thus
caused him to suffer mental anguish.
Noting that the amount of the counterclaim was below the exclusive original
jurisdiction of the rtc, abraham filed a motion to dismiss vis-a-vis the counterclaim
on that ground.
Should the counterclaim of salvador be dismissed? Explain your answer: (4%)

Suggested answer
No, salvador’s counterclaim is compulsory in nature, and thus should not be
dismissed. Section 7, rule of the rules of court defines a compulsory counterclaim
as any claim for money or any relief, which a defending party may have against an
opposing party, which at the time of suit arises out of, or is necessarily connected
with, the same transaction or occurrence that is the subject matter of the plaintiff’s
complaint (bung cayao v: fort ilocandia, g.r. No: 170483, april 19, 2010). A
counterclaim is compulsory where:
1. It arises out of or is necessarily connected with the transaction or occurrence
that is the subject matter of the opposing party’s claim;
2. It does not require the presence of third parties of whom the court cannot
acquire jurisdiction, and;
3. The trial court has jurisdiction to entertain the claim (spouses arenas v ca g.r. No
126640, november 23, 2000)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Regarding the trial court’s jurisdiction, section 7, rute 6 of the rules of court
explicitly states that in an original action before the regional trial court, the
counterclaim may be considered compulsory regardless of the amount. In relation
thereto, the supreme court held in alday v. Fgu insurance corp. (gr no. 138822,
january 23, 2001), that claims for damages, allegedly suffered as a result
of plaintiff’s filing of a complaints are compulsory. In this case, the court’s
jurisdiction over salvador’s counterclaim, despite being below the jurisdictional
amount is evident from the following: salvador’s claims for litigation expenses arise
out of abraham’s complaint for damages; salvador’s claims do not require the
presence of third parties, and being compulsory in nature, the trial court may
exercise jurisdiction over said claim.
Certification of forum shopping (2016)
Tailors toto, nelson and yenyen filed a special civil action for certiorari under rule 65
from an adverse decision of the national labor relations commission (nlrc) on the
complaint for illegal dismissal against empire textile corporation. They were terminated
on the ground that they failed to meet the prescribed production quota at least four (4)
times. The nlrc, decision was assailed in a special civil action under rule 65 before the
court of appeals (ca). In the verification and certification against forum shopping, only
toto signed the verification and certification, while atty. Arman signed for nelson. Empire
filed a motion to dismiss on the ground of defective verification and certification. Decide
with reasons. (5%)
Suggested answer
The motion to dismiss should be granted. The verification and certification of non-forum
shopping were not signed by all the petitioners. There was no showing that toto nor atty.
Arman were duly authorized by the other petitioners through a special power of attorney
to sign on their behalf; hence, the motion to dismiss should be granted.
Another suggested answer
The motion to dismiss should be denied, because there is substantial compliance of the
requirements of the rules. Verification is not a jurisdictional but merely a formal
requirement which the court may motu proprio direct a party to comply with ar correct,
as the case may be. On the other hand, regarding the certificate of non-forum shopping,
the general rule is that all the petitioners or plaintiffs in a case should sign it. However,
the supreme court has time and again stressed that the rules on forum shopping, which
were designed to promote the orderly administration of justice, do not interdict
substantial compliance with its provisions under justifiable circumstances. As ruled by
the court, the signature of any of the principal petitioners or principal parties, would
constitute a substantial compliance with the rule on verification and certification of non-
forum shopping. And should there exist a commonality of interest among the parties, or
where the parties filed the case as a collective, raising only one common cause of
action or presenting a common defense, then the signature of one of the petitioners or
complainants, acting as representative, is sufficient compliance (irene marcos-araneta
v. Court of appeals, g.r. No. 154096, august 22, 2008). Evidently, since there is a
commonality of interest among tailors toto, nelson and yenyen, there is substantial
compliance with the rules on verification and certification against forum shopping, when
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

toto signed the verification and certification, and atty. Arman signed the same for
nelson.
Certification of forum shopping (2004)
Mr. Humpty filed with the regional trial court (rtc) a complaint against ms. Dumpty for
damages. The rtc, after due proceedings, rendered a decision granting the complaint
and ordering ms. Dumpty to pay damages to mr. Humpty. Ms. Dumpty timely filed an
appeal before the court of appeals (ca), questioning the rtc decision. Meanwhile, the rtc
granted mr. Humpty’s motion for execution pending appeal. Upon receipt of the rtc’s
order granting execution pending appeal, ms. Dumpty filed with the ca another case,
this time a special civil action for certiorari assailing said rtc order.

Is there a violation of the rule against forum shopping considering that two (2) actions
emanating from the same case with the rtc were filed by ms. Dumpty with the ca?
Explain. (4%)

Suggested answer:

No. There is no violence of the rule against forum shopping.

The essence of forum shopping is the filing by a party against whom an adverse
judgment has been rendered in one forum, seeking another and possibly favorable
opinion in another suit other than by appeal or special civil action for certiorari; the act of
filing of multiple suits involving the same parties for the same cause of action, either
simultaneously or successively for the purpose of obtaining a favorable judgment.
Forum shopping exists where the elements of litis pendentia are present or where a
final judgment in one case will amount to res judicata in the action under consideration
(roberto s. Benedicto v. Manuel lacson, g.r. No. 141508, may 5, 2010).

In philippines nails and wires corporation v. Malayan insurance company, inc. (g.r. No.
143933, february 14, 2003), the supreme court held that one party may validly question
a decision in a regular appeal and at the same time assail the execution pending appeal
via certiorari without violating the rule against forum shopping. This is because the
merits of the case will not be addressed in the petition dealing with the execution and
vice versa.

Since ms. Dumpty merely filed a special civil action for certiorari, the same will not
constitute a violation of the rules on forum shopping because the resolution or a
favorable judgment thereon will not amount to res judicata in the subsequent
proceedings between the same parties (roberto s. Benedicto v. Manuel lacson, g.r. No.
141508, may 5, 2010).

2009
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Forum shopping; certification

Amorsolo, a filipino citizen permanently residing in new york city, filed with the rtc of lipa
city a complaint for rescission of contract of sale of land against brigido, a resident of
barangay san miguel, sto. Tomas, batangas. The subject property, located in barangay
talisay, lipa city, has an assessed value of p19,700.00. Appended to the complaint is
amorsolo's verification and certification of non-forum shopping executed in new york
city, duly notarized by mr. Joseph brown, esq., a notary public in the state of new york.
Brigido filed a motion to dismiss the complaint on the following grounds

The verification and certification of non-forum shopping are fatally defective because
there is no accompanying certification issued by the philippine consulate in new yor 1k,
authenticating that mr. Brown is duly authorized to notarize the document. (3%) rule on
the foregoing grounds with reasons. (2009)

Suggested answer:

The third ground raised questioning the validity of the verification and certification of
non-forum shopping for lack of certification from the philippine consulate in new york,
authenticating that mr. Brown is duly authorized to notarize the document, is likewise
without merit. The required certification alluded to, pertains to official acts, or records of
official bodies, tribunals, and public officers, whether of the philippines or of a foreign
country: the requirement in sec. 24, rule 132 of the 1997 rules refers only to paragraph
(a) of sec. 29 which does not cover notarial documents. It is enough that the notary
public who notarized the verification and certification of non-forum shopping is clothed
with authority to administer oath in that state or foreign country.

Question: (2006)
What is the difference between a judgment and the opinion of the court?

Suggested answer:
The judgment or fallo is the final disposition of the court which is reflected in the
dispositive portion of the decision, while the opinion of the court is contained in the body
of the decision that serves as a guide or enlightenment to determine the ratio decidendi
of the decision.

Question: (2006)
What is forum shopping?
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:
Forum shopping is the act of filing multiple suits involving the same parties for the
same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment.

Question: (2006)
Honey filed with the regional trial court, taal, batangas, a complaint for specific
performance against bernie. For lack of certification against forum shopping, the judge
dismissed the complaint. Honey’s lawyer filed a motion for reconsideration, attaching
thereto an amended complaint with the certification against forum shopping. If you were
the judge, how would you resolve the motion?

Suggested answer:
If i were the judge, i would deny the motion for reconsideration. The requirement
of filing a certificate of non-forum shopping is mandatory; it is not curable by mere
amendment of the complaint by the dismissal of the case shall be without prejudice.
(sec 5, rule 7) however, the rule may be liberally construed when there are compelling
reasons and a strict and literal application of the rules on non-forum shopping and
verification will result in a patent denial of substantial justice.

Question: (2004)
In his complaint for foreclosure of mortgage to which was duly attached a copy of
the mortgage deed, plaintiff pp alleged inter alia as follows: (1) that defendant dd duly
executed the mortgage deed, copy of which is annex “a” of the complaint and made an
integral part thereof; and (2) that to prosecute his complaint, plaintiff contracted a
lawyer, cc, for a fee of p50, 000. In his answer, defendant alleged, inter alia, that he had
no knowledge of the mortgage deed, and he is also denied any liability for plaintiff’s
contracting with a lawyer for a fee.

does defendant’s answer as to plaintiff’s allegation no. 1 as well as no. 2

sufficiently raise an issue of fact? Reason briefly.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

as to plaintiff’s allegation no. 1 defendant does not sufficiently raise an issue of

fact, because he cannot allege lack of knowledge of the mortgage deed since he should
have personal knowledge as to whether he signed it or not and because he did not deny
under oath the genuineness and due execution of the mortgage deed, which is an
actionable document. As to plaintiff’s allegation no. 2 defendant did not properly deny
liability as to plaintiff’s contracting with a lawyer for a fee. He did not even deny for lack
of knowledge. (sec. 10 of rule 8).

Question: (2004)

Px filed a suit for damages against dy. In his answer, dy incorporated a

counterclaim for damages against px and ac, counsel for plaintiff in said suit, alleging in
said counterclaim, inter alia, that ac, as such counsel, maliciously induced px to bring
the suit against dy despite ac’s knowledge of its utter lack of factual and legal basis. In
due time, ac filed a motion to dismiss the counterclaim as against him on the ground
that he is not a proper party to the case, he being merely plaintiff’s counsel.
is the counterclaim of dy compulsory or not? Should ac’s motion to dismiss the
counterclaim be granted or not? Reason.

Suggested answer:
yes. The counterclaim of dy is compulsory because it is one which 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 whom the court cannot acquire jurisdiction. (sec. 7 of rule 6).
the motion to dismiss of plaintiff’s counsel should not be granted because in
bringing in plaintiff’s counsel as a defendant in the counterclaim is authorized by the
rules. Where it is required for the grant of complete relief in the determination of the
counterclaim, the court shall order the defendant’s counsel to be brought in since
jurisdiction over him cannot be obtained. (sec. 12 of rule 6; aurelio v. Court of appeals,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

196 scra 674 [1994]; and other cases). Here, the counterclaim was against both the
plaintiff and his lawyer who allegedly maliciously induced the plaintiff to file the suit.

Alternative answer:
the counterclaim should be dismissed because it is not a compulsory
counterclaim. When a lawyer files a case for a client, he should not be sued on a
counterclaim in the very same case he has filed as counsel. It should be filed in a
separate and distinct civil action. (chavez v. Sandiganbayan, 193 scra 282 [1991]).

Question: (2002)
The plaintiff sued the defendant in the rtc for damages allegedly caused by the
latter’s encroachment on the plaintiff’s lot. In his answer, the defendant denied the
plaintiff’s claim and alleged that it was the plaintiff who in fact had encroached on his
(defendant’s) land. Accordingly, the defendant counterclaimed against the plaintiff for
damages resulting from the alleged encroachment on his lot. The plaintiff filed an ex
parte motion for extension of time to answer the defendant’s counterclaim, but the court
denied the motion on the ground that it should have been set for hearing. On the
defendant’s motion, therefore, the court declared the plaintiff in default on the
counterclaim. Was the plaintiff validly declared in default? Why? (5%)

Suggested answer:
No, the plaintiff was not validly declared in default. A motion for extension of time
to file an answer may be filed ex parte and need not be set for hearing. [ amante vs.
Sunga, 4 scra 192 (1975)].

Alternative answer:
The general rule is that a counterclaim must be answered within ten (10) days
from service. (rule 11, sec.4). However, a counterclaim that raises issues which are
deemed automatically joined by the allegations of the complaint need not be answered.
[ gojo vs. Goyola, 35 scra 557 (1970) ].
In this case, the defendant’s counterclaim is compulsory counterclaim which
arises out or is connected with the transaction and occurrence constituting the subject
matter of the plaintiff’s claim. It raises the same issue of who encroached on whose
land. Hence, there was no need to answer the counterclaim.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

QUESTION(2000):

As counsel for A, B, C and D. Atty. XY prepared a complaint for recovery of possession

of a parcel of land against Z. Before filing the complaint, XY discovered that his clients
were not available to sign the certification of non-forum shopping. To avoid further
delays in the filing of the complaint, XY signed the certification and immediately filed the
complaint in court. Is XY justified in signing the certification? Why?

SUGGESTED ANSWER:

No, counsel cannot sign the anti-forum shopping certification because it

must be executed by the “plaintiff or principal party” himself (Sec. 5, Rule 7, 1997
Rules of Civil Procedure; Escorpizo v University of Baguio, 306 SCRA 497,
[1999]), since the rule requires personal knowledge by the party executing the
certification, unless counsel gives a good reason why he is not able to secure his
client’ signatures and show that his clients will be deprived of substantial justice
(Ortiz v Court of Appeals, 299 SCRA 708, [1998]) or unless he is authorized to
sign it by his clients through a special power of attorney.

Question no. 1 (1996)

1) What is forum-shopping? What are the sanctions imposed for its violation?
forum-shopping is the filing of multiple petitions, complaints or other initiatory
pleadings involving the same issues in the supreme court, the court of appeals or
other tribunals or agencies, with the result that said courts, tribunals or agencies
have to resolve the same issues.
Any violation thereof shall be a cause for the dismissal of the complaint,
petition, application or other initiatory pleading, upon motion and after hearing.
However, any clearly, willful and deliberate forum shopping by any party and his
counsel through the filing of multiple complaints or other initiatory pleadings to
obtain favorable action shall be a ground for summary dismissal thereof and shall
constitute direct contempt of court. Furthermore, the submission of false
certification or non-compliance with the undertakings therein shall constitute
indirect contempt of court, without prejudice to disciplinary proceedings against
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

the counsel and the filing of a criminal action against the guilty party. (circular not
28-91 and 04-94)

RULE 8: MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Dorton inc. (dorton) sued debra commodities inc. (debra), daniel, and debbie in the rtc
of manila for recovery of sum of money. The complaint alleged that, on october 14,
2017, debra obtained a loan from dorton in the amount of php 10 million with interest of
9% per annum. The loan was evidenced by a promissory note (pn) payable on demand
signed by daniel and debbie, the principal stockholders of debra, who also executed a
surety agreement binding themselves as sureties. Copies of both the pn and the surety
agreement were attached to the complaint. Dorton further alleged that it made a final
demand on march 1, 2018 for debra and the sureties to pay, but the demand was not
heeded.
Debra, daniel, and debbie filed their answer, and raised the affirmative defense that,
while the pn and the surety agreement appeared to exist, daniel and debbie were
uncertain whether the signatures on the documents were theirs. The pn and the surety
agreement were pre-marked during pre-trial, identified but not authenticated during trial,
and formally offered.
Can the rtc of manila consider the pn and the surety agreement in rendering its
decision? (2018)

Suggested answer:
Yes, the rtc of manila may consider the pn and the surety agreement in rendering
its decision.
The pn and the surety agreement are actionable documents, defined under rule 8,
section 7 of the rules of court as a written instrument upon which an action is
founded upon. Moreover, rule 8, section 8 provides that when an action is
founded upon a written instrument, copied in or attached to the corresponding
pleading, 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 claims to be the facts.
In this case, debra, daniel, and debbie are parties to the pn and the surety
agreement. Since the pn and surety agreement are attached to the complaint,
debra, daniel, and debbie are deemed to have admitted the genuineness and due
execution thereof for their failure to: (a) deny the genuineness and due execution
of these documents under oath; and (b) to set for what they claim to be facts.
Hence, the court may consider the pn and the surety agreement in rendering its
decision.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

On the basis of an alleged promissory note executed by harold in fa vor of ramon; the
latter filed a complaint for p950,000.00 against the former in the rtc of davao city, in an
unverified answer, harold specifically denied the genuineness of the promissory note.
During the trial, harold sought to of. Fer the testimonies of the following: (1) the
testimony of an nbi handwriting expert to prove the forgery of his signature; and (2) the
testimony of a credible witness to prove that if ever harold had executed the note in
favor of ramon, the same: was not supported by a consideration.
May ramon validly object to the proposed testimonies? Give a brief explanation of your
answer. (2017)

Suggested answer.
Ramon may validly object to the proposed testimony of the nbi handwriting
expert the alleged promissory note attached to ramon’s complaint is an
actionable document since it is a written instrument upon which an action or
defense is grounded (asian construction and development corporation 1.
Mendoza, g.r. No: 176949, june 27, 2012). Accordingly, harold’s failure to
specifically deny under oath the genuineness of said actionable document
amounts to an implied admission of its genuineness and due execution under
rule 8, section 8 of the rules of court. Harold cannot thus raise the defense of
forgery by presenting the testimony of a handwriting expert. Well-settled is the
rule that the trial court may reject evidence that a party adduces to contradict a
judicial admission he previously made since such admission is conclusive as to
him (equitable card network inc., capistrano; g.r. No. 180157 february 8, 2012).
However, ramon may not validly object to the testimony of a credible witness to
prove that the promissory note was not supported by a consideration. The
admission of the genuineness and due execution of a document does not bar the
defense of want of a consideration (hibberd v. Rohde and mcmillani gr no. L-8414,
december 9, 1915).
In his complaint for foreclosure of mortgage to which was duly attached a copy of
the mortgage deed, plaintiff pp alleged inter alia as follows: (1) that defendant dd duly
executed the mortgage deed, copy of which is annex “a” of the complaint and made an
integral part thereof; and (2) that to prosecute his complaint, plaintiff contracted a
lawyer, cc, for a fee of p50, 000. In his answer, defendant alleged, inter alia, that he had
no knowledge of the mortgage deed, and he is also denied any liability for plaintiff’s
contracting with a lawyer for a fee.

does defendant’s answer as to plaintiff’s allegation no. 1 as well as no. 2

sufficiently raise an issue of fact? Reason briefly. (2004)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

as to plaintiff’s allegation no. 1 defendant does not sufficiently raise an

issue of fact, because he cannot allege lack of knowledge of the mortgage deed
since he should have personal knowledge as to whether he signed it or not and
because he did not deny under oath the genuineness and due execution of the
mortgage deed, which is an actionable document. As to plaintiff’s allegation no. 2
defendant did not properly deny liability as to plaintiff’s contracting with a lawyer
for a fee. He did not even deny for lack of knowledge. (sec. 10 of rule 8).

Question: (2002)
A. The plaintiff sued the defendant in the rtc for damages allegedly caused by the
latter’s encroachment on the plaintiff’s lot. In his answer, the defendant denied
the plaintiff’s claim and alleged that it was the plaintiff who in fact had
encroached on his (defendant’s) land. Accordingly, the defendant counterclaimed
against the plaintiff for damages resulting from the alleged encroachment on his
lot. The plaintiff filed an ex parte motion for extension of time to answer the
defendant’s counterclaim, but the court denied the motion on the ground that it
should have been set for hearing. On the defendant’s motion, therefore, the court
declared the plaintiff in default on the counterclaim. Was the plaintiff validly
declared in default? Why?

B. The plaintiff sued the defendant in the rtc to collect on a promissory note, the
terms of which were stated in the complaint and a photocopy attached to the
complaint as an annex. Before answering, the defendant filed a motion for an
order directing the plaintiff to produce the original of the note so that the
defendant could inspect it and verify his signature and the handwritten entries of
the dates and amounts. (2002)

1. Should the judge grant the defendant’s motion for production and
inspection of the original of the promissory note? Why? (2%)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

2. Assuming that an order for production and inspection was issued

but the plaintiff failed to comply with it, how should the defendant
plead to the alleged execution of the note?

Suggested answer:
A. No, the plaintiff was not validly declared in default. A motion for extension
of time to file an answer may be filed ex parte and need not be set for
hearing. [ amante vs. Sunga, 4 scra 192 (1975)].

Alternative answer:
A. The general rule is that a counterclaim must be answered within ten (10)
days from service. (rule 11, sec.4). However, a counterclaim that raises
issues which are deemed automatically joined by the allegations of the
complaint need not be answered. [ gojo vs. Goyola, 35 scra 557 (1970) ].
In this case, the defendant’s counterclaim is compulsory counterclaim
which arises out or is connected with the transaction and occurrence
constituting the subject matter of the plaintiff’s claim. It raises the same
issue of who encroached on whose land. Hence, there was no need to
answer the counterclaim.

Suggested answer:

B. (1) yes, because upon motion of any party showing good cause, the court
in which the action is pending may order any party to produce and permit
the inspection of designated documents. (rule 27). The defendant has the
right to inspect and verify the original of the promissory note so that he
could intelligently prepare his answer.

(2) the defendant is not required to deny under oath the genuineness and
due execution of the promissory note, because of the non-compliance by
the plaintiff with the order for production and inspection of the original
thereof. (rule 8, sec. 8)

Alternative answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(2) the defendant may file a motion to dismiss the complaint because of the
refusal of the plaintiff to obey the order of the court for the production and
inspection of the promissory note. (rule 29 sec. 3(c)].

1) the complaint alleged that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully, and in violation of law. However, it did not contain any averment of
facts showing that defendant's acts were done in the manner alleged.

QUESTION(2000):

a) X files a complaint in the RTC for the recovery of a sum of money with damages
against Y. Y files his answer denying liability under the contract of sale and praying for
the dismissal of the complaint on the ground of lack of cause of action because the
contract of sale was superseded by a contract of lease, executed and signed by X and
Y two weeks after the contract of sale was executed. The contract of lease was
attached to answer. X does not file a reply. What is the effect of the non-filing of a reply?
Explain.

b) For failure of KJ to file an answer within the reglamentary period, the Court, upon
motion of LM, declared KJ in default. In due time, KJ files an unverified motion to lift the
order of default without an affidavit of merit attached to it. KJ however attached to the
motion his answer under oath, stating in said answer his reasons for his failure to file an
answer on time, as well as his defenses. Will the motion to lift the order of default
prosper? Explain

c) PJ engaged the services of Atty. ST to represent him in a civil case filed by OP

against him which was docketed as Civil Case No. 123. A retainership agreement was
executed between PJ and Atty. ST whereby PJ promised to pay Atty. ST a retainer sum
of P24,000.00 a year and to transfer the ownership of a parcel of land to Atty. ST after
presentation of PJ’s evidence. PJ did not comply with his undertaking. Atty. ST filed a
case against PJ which was docketed as Civil Case No. 456. During the trial of Civil
Case no. 456, PJ died.
i) Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in civil
case No. 456?
ii) Will your answer be the same with respect to the real property being claimed
by Atty. ST in civil Case No. 456? Explain.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

SUGGESTED ANSWER:

(a) A reply is generally optional. If it is not filed, the new matters alleged in the
answer are deemed controverted.(Sec. 10 of Rule 6, 1997 Rules of Civil
Procedure). However, since the contract of lease attached to the answer is the
basis of the defense, by not filing a reply denying under oath the genuineness
and due execution of said contract, the plaintiff is deemed to have admitted the
genuineness and due execution thereof. (Secs. 7 and 8, Rule 8, 1997 Rules of
Civil Procedure; Toribo v. Bidin, 134 SCRA 162[1985])

(b) Yes, there is substantial compliance with the rule. Although the motion is
unverified, the answer attached to the motion is verified. The answer contains
what the motion to lift the order of default and the affidavit of merit should
contain, which are the reasons for the movant’s failure to answer as well as his
defense. (Sec. 3 9b) of Rule 9, 1997 Rules of Civil Procedure; Cf. Citibank, N.A v.
Court of Appeals. 304 SCRA 679,[1999]; Consul v Consul, 17 SCRA 667,
671[1966]; Tolentino v Carlos, 66 Phil. 140, 143-1449(1938), Nasser v. Court of
Appeals, 191 SCRA 783[1992])

(c)
(i) No. Under Sec. 20, Rule 3, 1997 Rules of Civil Procedure, when the
action is for the recovery of money arising from contract, express or implied, and
the defendant dies before entry of final judgment in the court in which the action
is pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained
by the plaintiff shall be enforced in the manner especially provided in the Rules
for prosecuting claims against the estate of a deceased person.

(ii) Yes, my answer is the same. An action to recover real property in

any event survives the death of the defendant.(Sec. 1, Rule 87, Rules
of Court). However, a favorable judgment may be enforced in
accordance with Sec. 7(b) Rule 39(1997 Rules of Civil Procedure)
against the executor or administrator or successor in interest of the
deceased.

Does the complaint state a cause of action? Explain. (1996)

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

No, because it does not state the ultimate facts constituting the plaintiffs
cause of action. The allegations that the defendant acted in bad faith,
arbitrarily, illegally, wrongfully and in violation of the law are mere
conclusions of fact or conclusions of law. (remttere us. Vela. De yulo. 16 scra
251)

Alternative answer:
Yes, if the complaint alleges ultimate facts and states that the acts were
done in bad faith, arbitrarily, illegally, wrongfully and in viola( ton of the
law. The nile allows malice, intent, knowledge or other condition of the
mind to be averred generally. (sec. 5 of rule 8)
2) x brought an action against y for the annulment of the sale of certain shares
of stock. After the case was decided in favor of x. He filed another action for
the recovery of the dividends that had already accrued when the first action
was filed.
Is the second action for the recovery of the dividends proper?
No, because the recovery of the dividends is part of the cause of action for
the annulment of the sale of certain shares of stock and should have been
claimed in the first action. The second action co nst it ted splitting a single
cause of action.

B.
C. Question no. 15 (1996)
D. 1) at a's trial for bs murder, the defense attempts to present as its
witness his widow. X she is to testify that just before b died, she
approached his sprawled and bloodied husband and asked who stabbed
him. B. Conscious of his impending death, named y as his assailant. The
prosecution moves to stop x from testifying because her testimony (i) is
hearsay, and (2) will be violative of the rule on privileged' marital
communication.
E. Rule on the prosecution's motion. Explain.
F.
G. Answer:
H. 1 will deny the prosecution's motion. The testimony of x is admissible as a
dying declaration, which is an exception to the heat-say rule. (sec. 37 of
rule 130) moreover, it is not a privileged marital communication. (sec. 24-a
of rule 130)
I. 2) x sued y. A shipping co.. Based on a contract of carnage contained in
a bill of lading. The bill of lading. An actionable document. Was pleaded
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

and attached to the complaint. Y. Without alleging anythingelse, merely

assailed the validity of the agreement in the bill of lading for being contrary
to publlepolicy. After presenting evidence. X did not formally offer for
admission the halal lading. The court ruled for x on motion for
reconsideration, y alleged that x failed to prove his action as the bill of
lading was not formally offered.
J. Decide.
K. What is the legal implication of such offer? Explain.
L. Answer:
M. Motion for reconsideration is denied. There was no need to formally offer
for admission the bill of lading. Because the failure of y to deny under oath
the genuineness and due execution of the bill of lading which was an
actionable document constituted art admission thereof. (sec. 8 of rule 8)
N.
O. 4) aside from the testimonies of three witnesses posi¬tively identifying
accused x as having stabbed to death y. The prosecution seeks to present
another wttne.ss. A. Which it believes as material and competent to prove
its case. X's counsel object to a's proposed testimony as being irrelevant.
The court sustained the objection.
P. If you were the prosecutor, what course of action would you pursue to the
end that the proposed testimony of a would form part of the record for
purposes of review? Explain.
Q. Answer:
R. 1 would make a tender of excluded evidence by stating for the record the
name and other personal circum-stances of the witness and the substance
of the proposed testimony. (sec. 40 of rule 132)
S. 5) a sued for annulment of his marriage with b. During trial, a offered in
evidence cassette tapes of alleged telephone conversations of b with her
lover. The tapes were recordings made by tapping a's telephone line. With
a's consent and obviously without b's or her lover's. B vehe¬mently
objected to their admission, on the ground that neither 13 nor her lover
consented to the wire tap. The court admitted the tapes, ruling that the
recorded conversations are nonetheless relevant to the issues involved.
T. Was the court correct in admitting the cassette tapes in evidence? Explain.
U. Answer:
V. No. Because the tape recordingsmade by a pping a's telephone line without
the consent of b or that of her lover was a violation of the anti- wire tapping
law. (ra no. 4200; salted° ortoftez us. Court of appeals, 235 scra 1 1 i)
22. In an action for collection of p2,000,000.00, plaintiff bank alleged that defendant
oriental textile mills, inc., for valuable consideration, executed in favor of the bank
a promissory note for said amount. Defendant filed an answer to the complaint
denying liability and alleging that jesus lim had no authority to negotiate and
obtain a loan in its behalf, nor to sign the promissory note. The answer was not
verified. During the trial, defendant sought to introduce evidence to show that
jesus lim was not authorized to enter into the transaction and to sign the
promissory note for and in behalf of the defendant corporation. Plaintiff objected
to such evidence, claiming that lim’s authority had been admitted by defendant’s
failure to verify the answer.
a. The judge sustained the objection. Was the ruling correct?
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

b. Supposing that no objection was made, trial proceeded and judgment was
thereafter rendered in favor of the plaintiff. The latter filed a motion for the
execution pending appeal and forthwith filed a bond in a sum double the
amount and judged. May the court grant the motion solely on the ground that
a bond was filed? (1991)

Suggested answer:

a. Yes. If a copy of the promissory note had been attached to the

complaint or set forth therein, the failure of defendant to deny
specifically under oath the due execution of the promissory note, or to
verify the allegation in its answer that jesus lim had no authority to
obtain a loan or to sign the promissory note, constitutes an admission
of the due execution thereof. Hence, defendant’s evidence was
properly objected to by the plaintiff. (secs. 7 & 8 of rule 8; imperial
textile mills, inc. V. Ca, 182 scra 584)
b. No, the mere filing of the bond is not a sufficient good reason for
execution pending appeal. (roxas v. Ca, 157 scra 370). Since no
objection was made by plaintiff to defendant’s evidence of lack of
authority of jesus lim, the same was admissible and constituted a good
defense to plaintiff’s action.

23. In his answer to the complaint, mario reyes alleged that he does not owe norma
alajar any sum of money, and that he executed the promissory note only to
enable alajar to show the same to her husband to explain the disappearance of
the amount from the conjugal funds as norma alajar lost the same in the casino.
The answer is not verified. At the trial, the lawyer of norma alajar objected to the
testimony of mario reyes as to his accommodation story because as the answer
is not verified, he is deemed to have admitted the genuineness and the due
execution of the promissory note.

decide on the objection with reasons.(1990)

Suggested answer:

Objection overruled. A verified answer is necessary in denying the genuineness

and due execution of the promissory note on which the action is based. However,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

the defense of mario reyes does not dispute the genuineness or due execution of
the promissory note. His defense of want of consideration, that he executed the
promissory note only to enable alajar to explain the loss of conjugal funds does
not require a verified answer. (sec. 8 of rule 8)

24. “a” filed suit against “b” and “c” for the recovery of personal property which,
according to the complaint, had been sold to him by the defendants father during
the latter’s lifetime under a document entitled bill of sale. The substance of the
bill was pleaded in the complaint and a copy thereof was attached to the
complaint as an exhibit. “b” and “c” filed an answer which disclaimed knowledge
or information about the bill of sale and averred that the signature thereon
allegedly belonging to their father appears to be forgery. “a” objected, saying that
the genuineness and due execution of the bill of sale was deemed admitted
because the answer was unverified, as a matter of law, inasmuch as the
verification was made only on the express basis of best information and belief.
Resolve the objection with reasons. (1987)

Suggested answer:

Objection overruled. “b” and “c” do not have to deny specifically under oath the
genuineness and due execution of the bill of sale since they do not appear to be
a party thereto, the same having been allegedly executed by their deceased
father. (sec. 8 of rule 8) their answer disclaiming knowledge or information about
the bill of sale and averring that the signature thereon appears to be a forgery is
sufficient to put in issue the genuineness and due execution of said document.

Notes:
1997 rules on civil procedure:
Rule 8, section 8. How to contest such documents. - when an action
or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the preceding
section, the genuineness and due execution sof the instrument shall
be deemed admitted unless the adverse party, under oath,
specifically denies them, and sets forth what he claims to be the facts;
but the requirement of an oath does not apply when the adverse party
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

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.

2020 revised rules of civil procedure:

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.

RULE 9: EFFECT OF FAILURE TO PLEAD

A filed with the metropolitan trial court of manila an action for specific
performance against b, a resident of quezon city, to compel the latter to execute a deed
of conveyance covering a parcel of land situated in quezon city having an assessed
value of p19,000.00. B received the summons and a copy of the complaint on 02
january 2003. On 10 january 2003, b filed a motion to dismiss the complaint on the
ground of lack of jurisdiction contending that the subject matter of the suit was incapable
of pecuniary estimation. The court denied the motion. In due time, b filed with the
regional trial court a petition for certiorari praying that the said order be set aside
because the metropolitan trial court had no jurisdiction over the case.
On 13 february 2003, a filed with the metropolitan trial court a motion to declare b
in default. The motion was opposed by b on the ground that his petition for certiorari
was still pending.
A. Was the denial of the motion to dismiss the complaint correct?
Resolve the motion to declare the defendant in default. (2003)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:
A. The denial of the motion to dismiss the complaint was not correct. Although the
assessed value of the parcel of land involved was p19,000.00, within the jurisdiction
of the metropolitan trial court of manila, the action filed by a for specific performance
against b to compel the latter to execute a deed of conveyance of said parcel of land
– was not capable of pecuniary estimation and, therefore, the action was within the
jurisdiction of regional trial court. (russel v. Vestil, 304 scra 738 [1999]; copioso v.
Copioso, gr no. 149243, october 28, 2002; cabutihan v. Landcenter construction, 383
scra 353 [2002])

Suggested answer:
B. The court could declare b in default because b did not obtain a writ of
preliminary injunction or a temporary restraining order from the regional trial
court prohibiting the judge from proceeding in the case during the pendency of
the petition for certiorari. (sec. 7 of rule 65; diaz v. Diaz, 331 scra 302 [2000]).

Alternative answer:
C. The court should not declare b in default inasmuch as the jurisdiction of
metropolitan trial court was put in issue in the petition for certiorari filed with the
regional trial court. The metropolitan trial court should defer further proceedings
pending the result of such petition. (eternal gardens memorial park corporation
v court of appeals, 164 scra 421 [1998]).

QUESTION(2001):
Mario was declared in default but before judgment was rendered, he decided to file a
motion to set aside the order of default.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a) What should Mario state in his motion in order to justify the setting aside of
the order of default?
b) In what form should such motion be?

SUGGESTED ANSWER:
a) In order to justify the setting aside of the order of default, Mario should
state in his motion that his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a meritorious defense.
(Sec.3) (b) of Rule 9, 1997 Rules of Civil Procedure).
b) The motion should be under oath.

QUESTION(2000):
As counsel for A, B, C and D. Atty. XY prepared a complaint for recovery of possession
of a parcel of land against Z. Before filing the complaint, XY discovered that his clients
were not available to sign the certification of non-forum shopping. To avoid further
delays in the filing of the complaint, XY signed the certification and immediately filed the
complaint in court. Is XY justified in signing the certification? Why?

SUGGESTED ANSWER:

No, counsel cannot sign the anti-forum shopping certification because it

QUESTION(2000):

Mario was declared in default but before judgment was rendered, he decided to
file a motion to set aside the order of default.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a) What should Mario state in his motion in order to justifiy the setting aside of
the order of default?
b) In what form should such motion be?

SUGGESTED ANSWER:

a) In order to justify the setting aside of the order of default, Mario should
state in his motion that his failure to answer was due to fraud, accident, mistake
or excusable negligence and that he has a meritorious defense. (Sec. 30(b) of
Rule 9, 1997 Rules of Civil Procedure)

b) The motion should be under oath.(Id.)

QUESTION(2000):

Defendant was declared in default by the Regional Trial Court (RTC). Plaintiff was
allowed to present evidence in support of his complaint. Photocopies of official receipts
and original copies of affidavits were presented in court, identified by plaintiff on the
witness stand and marked as exhibits. Said documents were offered by plaintiff and
admitted in evidence by the court on the basis of which the RTC rendered judgment in
favor of the plaintiff, pursuant to the relief prayed for. Upon receipt of judgment,
defendant appeals to the Court of Appeals claiming that the judgment is not valid
because the RTC based its judgment on mere photocopies and affidavits of persons not
presented in court.
b) Is the claim of the defendant valid? Explain.
c) Will your answer be the same if the photocopies of official receipts and
photocopies of affidavits were attached to the position paper submitted by
plaintiff in an action for unlawful detainer filed with the Mnicipal Trial Court on
which basis the court rendered judgment in favor of plaintiff? Explain.
Suggested answer:
c) The claim of the defendant is not valid because under the 1997 Rules,
reception of evidence is not required. After a defendant is declared in default,
the court shall proceed to render judgment granting the claimant such relief
as his pleading may warrant, unless the court in its discretion requires the
claimant to submit evidence, which may be delegated to the clerk of court.
(Sec. 3 Rule 9, 1997 Rules of Civil Procedure)
Alternative answer
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

c) The claim of the defendant is valid because the court received evidence
which it can order in its own discretion, in which case the evidence of the
plaintiff must pass the basic requirements of admissibility.
Suggested answer
d) The claim of the defendant is valid, because although summary
procedure requires merely the submission of position papers, the
evidence submitted with the position paper must be admissible
evidence. (Sec. 9 of the Revised Rule on Summary Procedure).
Photocopies and affidavits are not admissible without proof of loss of
the originals. (Sec. 3 Rule 130)

QUESTION (1998)

What are the available remedies of a party declared in default:

1. Before the rendition of judgment;
2. After judgment but before its finality; and
3. After finality of judgment?

SUGGESTED ANSWERS:

The available remedies of a party declared in default are as follows:

1. Before the rendition of judgment (a) he may file a motion under oath to set
aside the order of default on the grounds of fraud, accident, mistake or
excusable negligence and that he has a meritorious defense (Sec. 3[b],
Rule 9, 1997 Rules of Civil Procedure); and if it is denied, he may move to
reconsider, and if reconsideration is denied, he may file the special civil
action of certiorari for grave abuse of discretion tantamount to lack or
excess of the lower court’s jurisdiction. (Sec.1, Rule 65, Rules of Court) or
(b) he may file a petition for certiorari if he has been illegally declared in
default, e.g. during the pendency of his motion to dismiss or before the
expiration of the time to answer. (Matute vs. Court of Appeals, 26 SCRA
768; Acosta-Ofalia vs. Sundiam, 85 SCRA 412.)

2. After judgment but before its finality, he may file a motion for new trial on
the grounds of fraud, accident, mistake excusable negligence or a motion
for reconsideration on the ground of excessive damages, insufficient
evidence or the decision or final order being contrary to law (Sec.2, Rule
37, 1997 Rules of Civil Procedure); and thereafter, if the motion is denied,
appeal is available under Rules 40 or 41, whichever is applicable.

3. After finality of the judgment, there are three ways to assail the judgment,
which are: (a) a petition for relief under Rule 38 on the grounds of fraud,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

accident, mistake or excusable negligence; (b) annulment of judgment

under Rule
4. for extrinsic fraud or lack of jurisdiction; or (c) certiorari if the judgment is
void on its face or by the judicial record. (Balangcad vs. Justices of the
Court of Appeals. G.R. No. 83888, February 12, 1992, 206 SCRA 171 and
other cases).

Party in Default
1998
A. When may a party be declared in default? (2%)
B. What is the effect of an Order of Default? (2%)
C. For failure to seasonably file his Answer despite due notice, A was declared
in default in a case instituted against him by B. The following day, A’s
mistress who is working as a clerk in the sala of the Judge before whom his
case is pending, informed him of the declaration of default. On the same day,
A presented a motion under oath to set aside the order of default on the
ground that his failure to answer was due to fraud and he has meritorious
defense. Thereafter, he went abroad. After his return a week later, with the
case still undecided, he received the order declaring him in default. The
motion to set aside default was opposed by B on the ground that it was filed
before A received notice of his having been declared in default, citing the rule
that the motion to set aside may be made at anytime after notice but before
judgment. Resolve the Motion. (2%)

a. A party may be declared in default when he fails to answer within time

allowed therefor, ads upon motion of the claiming party with notice to
the defending party, and proof of such failure. (Sec. 3, Rule 9 of the 1997
Rules)
b. The effect of an Order of Default is that the court may proceed to render
judgment granting the claimant such relief as his pleading requires the
claimant to submit evidence (Id). The party in default cannot take part in
the trial but shall be entitled to notice of subsequent proceedings. (Sec.
3 (A). Rule 9 of the 1997 Rules)
c. Assuming that the motion to set aside complies with the other
requirements of the rule, it should be granted. Although such a motion
may be made after notice but before judgment (Sec. 3(B) of Rule 9), with
more reason may it be filed after discovery even before receipt of the
order of default.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Question no. 6 (1996)

2) Plaintiff filed a complaint against defendant for recovery of possession of real
property with the regional trial court of manila. Defendant filed an answer with
affirmative defenses and interposed a counterclaim for damages and attorney's
fees arising from the filing of the complaint. When plaintiff failed to file an answer
on the counterclaim. Defendant moved to declare him in default.
Notwithstanding notice of the motion, plaintiff did not file an opposition.
As judge, how would you resolve the motion to declare plaintiff in default?
Explain.
I would deny the motion. A compulsory counterclaim for damages and
attorney's fees arising from the filing of the complaint raises issues which are
inseparable from those of the complaint and does not require an answer.
(navarro us. Beltoy 102 phil. 1019)

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

2009

Pleadings; amendment of complaint

Upon termination of the pre-trial, the judge dictated the pretrial order in the
presence of the parties and their counsel, reciting what had transpired and
defining three (3) i s s u e s t o b e t r i e d . If, immediately upon receipt of his copy
of the pre- trial order, plaintiff's counsel should move for its amendment to
include a fourth (4th) triable issue which he allegedly inadvertently failed to
mention when the judge dictated the order. Should the motion to amend be
granted? Reasons. (2009)

Suggested answer:

Depending on the merit of the issue sought to be brought in by the

amendment, the motion to amend may be granted upon due hearing. It is a
policy of the rules that parties should be afforded reasonable opportunity to bring
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

about a complete determination of the controversy between them, consistent

with substantial justice. With this end in view, the amendment before trial
may be granted to prevent manifest injustice. The matter is addressed to the
sound and judicious discretion of the trial court.

a. Suppose trial had already commenced and after the plaintiff's

second witness had testified, the defendant's counsel moves for the
amendment of the pre-trial order to include a fifth (5th) triable issue
vital to his client's defense. Should the motion be granted over the
objection of plaintiff's counsel? Reasons. (2009)

Suggested answer:

The motion may be denied since trial had already commenced and two
witnesses for the plaintiff had already testified. Courts are required to issue
pre-trial order after the pre-trial conference has been terminated and before
trial begins, precisely because the reason for such order is to define the course
of the action during the trial. Where trial had already commenced, more so the
adverse party had already presented witnesses, to allow an amendment
would be unfair to the party who had already presented his witnesses. The
amendment would simply render nugatory the reason for or purpose of the pre-
trial order.

Sec.7 of rule 18 on pre-trial in civil actions is explicit in allowing a

modification of the pre-trial order "before" trial begins to prevent manifest
injustice.

b. Mr. Sheriff attempts to enforce a writ of execution against x, a tenant in a

condominium unit, who lost in an ejectment case. X does not want to budge and
refuses to leave. Y, the winning party, moves that x be declared in contempt
and after hearing, the court held x guilty of indirect contempt. If you were x's
lawyer, what would you do? Why? (2009)

Suggested answer:

If i were x’s lawyer, i would file a petition for certiorari under rule 65. The judge should
not have acted on y’s motion to declare x in contempt. The charge of indirect contempt
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

is initiated through a verified petition. (rule 71, sec 4, rules of court). The writ was not
directed to x but to the sheriff who was directed to deliver the property to y. As the writ
did not command the judgment debtor to do anything, he cannot be guilty of the facts
described in rule 71 which is “disobedience of or resistance to a lawful writ, process,
order, judgment, or command of any court.” The proper procedure is for the sheriff to
oust x availing of the assistance of peace officers pursuant to section 10(c) of rule 39
(lipa v. Tutaan, l-16643, 29, september 1983; medina v. Garces, l-25923, july 15, 1980,
pascua vs. Heirs of segundo simeon, 161 scra 1; patagan et. Al. Vs. Panis, g.r. No.
55630, april 18, 1988).

2008

Pleadings; amendment of complaint

Arturo lent p1 million to his friend robert on the condition that robert execute a
promissory note for the loan and a real estate mortgage over his property located in
tagaytay city. Robert complied. In his promissory note dated september 20, 2006, robert
undertook to pay the loan within a year from its date at 12% per annum interest. In june
2007, arturo requested robert to pay ahead of time but the latter refused and insisted on
the agreement. Arturo issued a demand letter and when robert did not comply, arturo
filed an action to foreclose the mortgage. Robert moved to dismiss the complaint for
lack of cause of action as the debt was not yet due. The resolution of the motion to
dismiss was delayed because of the retirement of the judge. (2008)

A. On october 1, 2007, pending resolution of the motion to dismiss, arturo filed an

amended complaint alleging that robert's debt had in the meantime become due but that
robert still refused to pay. Should the amended complaint be allowed considering that
no answer has been filed? (3%)

B. Would your answer be different had arturo filed instead a supplemental complaint
stating that the debt became due after the filing of the original complaint? (2%)

Suggested answer:

A) no. Even though an amendment of the complaint before answer is a matter of right,
lack of a cause of action at the commencement of a suit is not cured by the accrual of a
cause of action subsequent thereto, such that an amendment setting up the after
accrued cause of action is not allowed (swagman hotels and travel, inc. V. Court of
appeals, 455 scra 175[2005]).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

B) would your answer be different had arturo filed instead a supplemental complaint
stating that the debt became due after the filing of the original complaint (2%)

rule on the motion of the defendant with reasons.

Suggested answer:

the motion to dismiss should be denied. A plaintiff is entitled as a matter of right

to amend the complaint before a responsive pleading is served, without leave of
court, even if there is a pending motion to dismiss (sec. 2, rule 10, 1997 rules of civil
procedure; soledad v manangun, 8 scra 110 [1963]; remington industrial sales
corporation v court of appeals, 382 scra 499 [2002]). While a complaint cannot be
amended to confer jurisdiction on a court where there was none (calabig v
villanueva, 135 scra 300 [1985]), the rule applies where a responsive pleading has
already been filed because in such a case, amendment should be by leave of court
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

under section 3 rule 10. If the court is without jurisdiction, it has no jurisdiction to
grant leave of court. A motion to dismiss is not a responsive pleading, therefore,
amendment is a matter of right (rule 10, sec. 1, rules of civil procedure dauden-
hernaez v de los angeles, 27 scra1276 [1969]; gumabay v. Baralin 77 scra 258
[1977]).

Question: (2004)

In a complaint for a sum of money filed before the metro manila rtc, plaintiff did
not mention any demand for payment made on defendant before commencing
suit. During the trial, plaintiff duly offered exhibit a (a demand letter directing
defendant to pay p500, 000 within 10 days from receipt of letter) in evidence for
the purpose of proving that extrajudicial demand on the defendant to pay was
made. Without objection from defendant, the court admitted exhibit a in
evidence.

Was the court’s admission of exhibit a in evidence erroneous? Reason.

Suggested answer:

The court’s admission of exhibit a in evidence is not erroneous. It was admitted in

evidence without objection on the part of the defendant. It should be treated as if it
had been raised in the pleadings. The complaint may be amended to conform to the
evidence, but if it so not so amended, it does not affect the result of the trials on this
issue (sec. 5 of rule 10).

Question: (2004)

During trial, plaintiff was able to present, without objection by defendant in an

ejectment case, evidence showing that plaintiff served on defendant a written
demand to vacate the subject property before the commencement of the suit, a
matter not alleged or otherwise set forth in the pleadings on file.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

May the corresponding pleading still be amended to conform to the evidence?

Explain.

Suggested answer:

Yes. The corresponding pleading may still be amended to conform to the evidence,
because the written demand to vacate, made prior to the commencement of the
ejectment suit, was presented by the plaintiff in evidence without objection on the
part of the defendant. Even if the demand to vacate was jurisdictional, still, the
amendment proposed was to conform to the evidence that was already in the record
and not to conform to the evidence that was already in the record and not to confer
jurisdiction on the court, which is not allowed. Failure to amend, however, does not
affect the result of the trial on these issues (sec. 5 of rule 10).

Alternative answer:

It depends. In forcible entry, the motion may be allowed at the discretion of the court,
the demand having been presented at the trial without objection on the part of the
defendant. In unlawful detainer, however, the demand to vacate is jurisdiction and
since the court did not acquire jurisdiction from the very beginning, the motion to
conform to the evidence cannot be entertained. The amendment cannot be allowed
because it will in effect confer jurisdiction where there is otherwise no jurisdiction.

Question: (2003)
After an answer has been filed, can the plaintiff amend his complaint, with leave of
court, by changing entirely the nature of the action? (4%)

Suggested answer:
yes. The present rules allow amendments substantially altering the nature of the
cause of action. (sec. 3, rule 10, 1977 rules of civil procedure; heirs of marcelino
pagobo v. Court of appeals, 280 scra 870 [1997]).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

this should only be true, however, when the substantial change or alteration in
the cause of action or defense shall serve the higher interests of substantial justice
and prevent delay and equally promote the laudable objective of the rules which is to
secure a just, speedy and inexpensive disposition of every action and proceeding.
(valenzuela v. Court of appeals, 363 scra 779 [2001]).

QUESTION(2000):
X, an illegitimate child of Y, celebrated her 18 th birthday on May 2, 1996. A month before
her birthday Y died. The legitimate family of Y refused to recognize X as an illegitimate
child of Y. after countless efforts to convince them, X filed on April 25, 2000 an action
for recognition against Z, wife of Y. after Z filed her answer on August 14, 2000, X filed
a motion for leave to file an amended complaint and a motion to admit the said
amended complaint impleading the three (3) legitimate children of Y. the trial court
admitted the amended complaint on August 22, 2000. What is the effect of the
admission of the amended complaint? Has the action of X prescribed?
Suggested answer:
No. the action filed on April 25, 2000 is still within the four-year prescriptive
period which started to run on May 2, 1996. The amended complaint impleading the
three legitimate children, though admitted on August 22, 2000 beyond the four (4) year
prescriptive period, retroacts to the date of filing of the original complaint. Amendments
impleading new defendants retroact to the date of filing of the complaint because they
do not constitute a new cause of action.
Alternative answer:
Under the 1997 Rules of Civil Procedure, if an additional defendant is impleaded
in a later pleading, the action is commenced with regard to him on the date of the filing
of such later pleading, irrespective of whether the motion for its admission, if necessary,
is denied by the court. (Sec. 5 of Rule 1).
Consequently, the action of X has prescribed with respect to the three (3)
legitimate children of Y who are indispensable parties.
Another alternative answer:
Under Article 175 of the Family Code, the action must be brought within the
lifetime of X if the action is based on a record of birth or an admission of filiation in a
public document or a private or a private handwritten instrument signed by Y. In such
case, the action of Y has not prescribef.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

However, if the action is based on the open and continuous possession of

the status of an illegitimate child, the action should have been brought during the
lifetime of Y. In such case, the action of X has prescribed.

Question no. 15 (1994)

Michelle sued juliet for reinvindication for the recovery of land. After the hearing
but previous to the rendition of judgment, michelle amended her complaint making the
principal action one for rescission of contract. Juliet objected.

If you were the judge, would you allow the amendment?

Answer:

No. I would not allow the amendment because the amendment of the complaint
from rem/my of land to one for rescission of contract is a substantial change in the
cause of action which may not be done after the trial and previous to the rendition of
judgment. (torres v. Tomneruz, 49 phil. 913).

Alternative answer:
Yes. The amendment of the complaint to one of rescission of contract is not a
substantial change in the cause of action, because michelle's objective is actually for
the recovery of land. The rule on amendment should not be inflexible but liberal.

Question no. Xii (1992)

A complaint was filed by the counsel for superior sales (an entity without a
distinct juridical personality) against mr. Garcia on a money claim for goods
delivered. Mr. Garcia did not file a motion to dismiss. Eventually, trial was held and
his liability was established through several invoices, each of which uniformly
showed on its face that mr. Tan is the proprietor of superior sales. After superior
sales had rested its case, mr. Garcia filed a motion to dismiss on the ground that,
since there is actually no person properly suing as plantiff, no relief can be
granted by the court. On the other hand, the counsel for superior sales filed a motion
to amend the complaint to make it conform to the evidence, that the real party
plaintiff is mr. Tan. The court denied said motion on the ground that it was filed too
late and instead, dismissed the case.
Did the court act correctly? Explain.
Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

No, the court erred in denying the motion to amend the complaint
and dismissing the case.
The mistake in the name of the plaintiff (which should have been mr. Tan
instead of superior sales which had no juridical personality) was cured by the
presentation of evidence (without objection) that mr. Tan is the proprietor of
superior sales. Hence the amendment of the complaint to conform to the evidence
was proper, and even if no amendment was made, it would not affect the result of
the trial on the issue of the real party in interest. (sec. 5 of rule 10)

Question no. 4 (1993)

In an action for reconveyance of a parcel of land filed in the regional trial court.
The defendant, through his lawyer, filed an answer therein admitting the averment
in the complaint that the land was acquired by the plaintiff through inheritance
from his parents, the former owners thereof.
Subsequently, the defendant changed his lawyer and, with leave of court,
amended the answer. In the amended answer, the abovementioned admission no
longer appears: instead, the alleged ownership of the land by the plaintiff was denied
coupled with the allegation that the defendant is the owner of the land for the reason
that he bought the same from the plaintiff's parents during their lifetime.
After trial. The regional thal court rendered a decision upholding the
defendant's ownership of the land.
On appeal, the plaintiff contended that the defendant is bound by the admission
contained in his original answer.
Is the contention of plaintiff correct? Why?
Answer:
No, because pleadings that have been amended disappear from the record,
lose their status as pleadings and cease to be judicial admissions. While they may
nonetheless be utilized as against the pleader as extrajudicial admissions, they
must, in order to have such effect, be formally offered in evidence. (director of lands us.
Court of appeals. 196 scra 941

Alternative answer:

Yes, because an admission in the original pleading does not cease to be a

judicial admission simply because it was deleted in an amended pleading. The
original answer. Although replaced by an amended answer does not cease to be
part of a judicial record. Not having been expunged therefrom. (dissenting opinion
in torres us. Cowl of appeals, 131 scra 24).

rule 11 when to file responsive pleadings

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

B. the plaintiff sued the defendant in the rtc to collect on a promissory note, the
terms of which were stated in the complaint and a photocopy attached to the
complaint as an annex. Before answering, the defendant filed a motion for an
order directing the plaintiff to produce the original of the note so that the
defendant could inspect it and verify his signature and the handwritten entries of
the dates and amounts.
1. Should the judge grant the defendant’s motion for production and
inspection of the original of the promissory note? Why? (2%)

2. Assuming that an order for production and inspection was issued

but the plaintiff failed to comply with it, how should the defendant
plead to the alleged execution of the note? (3%)

Suggested answer:

A. No, the plaintiff was not validly declared in default. A motion for extension of time
to file an answer may be filed ex parte and need not be set for hearing. [ amante
vs. Sunga, 4 scra 192 (1975)].

Alternative answer:

A. The general rule is that a counterclaim must be answered within ten (10) days
from service. (rule 11, sec.4). However, a counterclaim that raises issues which
are deemed automatically joined by the allegations of the complaint need not be
answered. [ gojo vs. Goyola, 35 scra 557 (1970) ].
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

In this case, the defendant’s counterclaim is compulsory counterclaim which arises out
or is connected with the transaction and occurrence constituting the subject matter of
the plaintiff’s claim. It raises the same issue of who encroached on whose land. Hence,
there was no need to answer the counterclaim.

Suggested answer:

B. (1) yes, because upon motion of any party showing good cause, the court in
which the action is pending may order any party to produce and permit the
inspection of designated documents. (rule 27). The defendant has the right to
inspect and verify the original of the promissory note so that he could intelligently
prepare his answer.

(2) the defendant is not required to deny under oath the genuineness and due
execution of the promissory note, because of the non-compliance by the plaintiff
with the order for production and inspection of the original thereof. (rule 8, sec.
8)

Alternative answer:

B. (2) the defendant may file a motion to dismiss the complaint because of the
refusal of the plaintiff to obey the order of the court for the production and
inspection of the promissory note. (rule 29 sec. 3 (c)].
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Rule 12: bill of particulars

Effect of non-compliance (2018)
The republic of the philippines (republic) filed a complaint with the sandiganbayan in
connection with the sequestered assets and properties of demo companies inc. (demo)
and impleaded its officers and directors. Since the complaint did not include demo as
defendant, the sandiganbayan issued a resolution where it ordered demo to be
impleaded. Thereafter, the republic filed an amended complaint naming demo as
additional defendant, which amendment was later admitted.
Demo filed a motion for bill of particulars for the republic to clarify certain matters in its
amended complaint. The sandiganbayan immediately granted the motion. Upon
submission of the bill of particulars by the republic, demo filed a motion to dismiss
arguing that the answers in the bill of particulars were indefinite and deficient responses
to the question of what the alleged illegally acquired funds or properties of demo were.
The sandiganbayan dismissed the case.
a. Was the sandiganbayan correct in dismissing the case? (2.5%)
Suggested answer:
Yes, the sandiganbayan was correct in dismissing the case.
Under rule 12, section 4 of the rules of court, the consequence of insufficient
compliance with the court’s order for a bill of particulars or a more definite
pleading is that the court may order the striking out of said pleading or the
portions thereof.
In this case, the sandiganbayan dismissed the case upon non-compliance with
its order for a definite pleading. The dismissal of the case was made by the
striking out of the pleading, which in this case was the complaint by the republic.
In striking out said pleading, no complaint existed, and thus, the sandiganbayan
effectively dismissed the case.
Hence, the sandiganbayan correctly dismissed the case, as the bill of particulars
was deemed insufficient leading to the striking out of the complaint.

b. What can the defendant, in a civil case, do in the event that his motion for bill of
particulars is denied? (2.5%)
Suggested answer:
In the event that the defendant’s motion for bill of particulars is denied, and the
defendant believes that the complaint states matters not averred with sufficient
definiteness or particularity to enable him to prepare his responsive pleading,
the defendant can instead file a motion to dismiss on the ground that the
complaint fails to state a cause of action, under rule 16, section 1 of the rules of
court.
Question: (2003)
A. When can a bill of particulars be availed of?
B. What is the effect of non-compliance with the order of a bill of particulars?
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

A. Before responding to a pleading, a party may move for a bill of particulars of any
matter which is not averred with sufficient definiteness or particularity to enable
him properly to prepare his responsive pleading. If the pleading is a reply, the
motion must be filed within ten (10) days from service thereof. (sec. 1 of rule 12)

B. If the order is not complied with, the court may order the striking out of the
pleading or the portions thereof to which the order was directed or make such
order as it deems just. (sec. 5 of rule 12)

Question no. 12 (1996)

1. The information filed against a charged more than one offense. A has not yet
been arraigned. If you were the lawyer of a. Would you file a motion to quash
or a motion for bill of particulars? Explain.
answer:
I would file a motion to quash on the ground that more than one offense is charged.
(sec. 1-c of rule 117). A motion for bill of particulars is not proper because there are
no defects or details in the information that need clarifies- hon. Isec. 10 of rule
116)

2. An information for frustrated homicide failed to allege the damages incurred

by the offended party. At the trial, the court upon objection of , the accused
barred the prosecution from proving the damages suffered by complainant for
the reason that it was not alleged in the information. Accused presented
evidence to prove his innocence. After trial, the court convicted the
accused sentencing him to imprisonment without any award of damages.
Was the court correct in disallowing the prosecution from presenting proof
relative to accused's civil liability? Explain briefly.
Answer:
No, in a criminal case, the civil action for recovery of civil liability is
implicdly instituted with the criminal action, unless the offended party
waives the civil action. Reserves his right to institute it separately. Or
institutes the clvii action prior to the criminal action. Consequently, the
prosecution has the right to present evidence of damages suffered even if it
was not alleged. '(Sec. 1 of rule 111)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

3. Accused was charged with estafa and pleaded not guilty thereto. The prosecution
repeatedly sought and obtained postponements over the objection of the accused
who invoked his right to speedy trial. At the succeeding hearing, the prosecution
again sought postponement on the ground that the complainant, its only
witness, was out of the country.
If you were counsel of the accused what course of action would you take in order
that the case against him will be finally dismissed by the court?
Answer:
I would object to any further postponement, insist on a trial and movt for dismissal
on the ground of the right of the accused to a speedy trial. The dismissal in such a
case bars a subsequent prosecution for the same offense.
4. accused was charged with murder. At the hearing of his application for bail, the
prosecution manifested that it was ready to present evklenct to prove that the guilt of
the accused is strong. The defense, however. Contended that the report and
documents/papers in support of the prosecutor's certification of probable cause in the
information is sufficient to deternune whether the evidence of guilt is strong. Thereby
dispensing with the presentation of the prosecution's evi dence.
as judge how would you resolve the contention of the defense? Explain.
Answer:
I would overrule 'the contention of the defense because the prosecution has
the right to present evidence to prove that evidence of guilt is strong. (sec. 8 of rule
114) a hearing in indispensable.

RULE 14 SUMMONS

Service of summons (2017)

Teddy filed against buboy an action for rescission of a contract for the sale of a
commercial lot, after having been told by the wife of buboy that her husband was out of
town and would not be back until after a couple of days the sheriff requested the wife to
just receive the summons in behalf of her husband. The wife acceded to the request;
received the summons and a copy of the complaint, and signed for the same.
a.
Was there a valid service of summons upon buboy? Explain – your answer briefly. (3%)

Suggested answer
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(a) no, there was no valid service of summons in this case; since the summons was not
personally received by buboy, for substituted service of summons to be available, there
must be several attempts by the sheriff to personally serve the summons within a
reasonable period. “several attempts: means at least three tries, preferably on at least
two different dates” (manotoc v court of appeals, gr no. 130974, august 16, 2006).

(b) if buboy files a motion to dismiss the complaint based on the twin grounds of lack of
jurisdiction over his person and prescription of the cause of action, may he be deemed
to have voluntarily submitted himself to the jurisdiction of the court? Explain your
answer briefly (3%).

Service of summons (2016)

Juan sued roberto for specific performance. Roberto knew that juan was going to file the
case so he went out of town and temporarily stayed in another city to avoid service of
summons. Juan engaged the service of sheriff matinik to serve the summons but when
the latter went to the residence of roberto, he was told by the caretaker thereof that his
employer no longer resides at the house. The caretaker is a high school graduate and is
the godson of roberto. Believing the caretaker’s story to be true, sheriff matinik left a
copy of the summons and complaint with the caretaker. Was there a valid substituted
service of summons? Discuss the requirements for a valid service of summons. (5%)
Suggested answer
No. There was no valid substituted service of summons. In an action strictly in
personam, personal service on the defendant is the preferred mode of service, that is,
by handing a copy of the summons to the defendant in person. If defendant, for
excusable reasons, cannot be served with the summons within a reasonable period,
then substituted service can be resorted to. While substituted service of summons is
permitted, it is extraordinary in character and in derogation of the usual method of
service; hence, it must faithfully and strictly comply with the prescribed requirements
and circumstances authorized by the rules. Compliance with the rules regarding the
service of summons is as important as the issue of due process for the court to acquire
jurisdiction. For the presumption of regularity in the performance of official duty to apply,
the sheriff’s return must show that serious efforts or attempts were exerted to personally
serve the summons and that said efforts failed. These facts must be specifically
narrated in the return. It must clearly show that the substituted service must be made on
a person of suitable age and discretion living in the dwelling or residence of defendant;
otherwise, the return is flawed and the presumption cannot be availed of. The supreme
court laid down the requirements as follows:
1. Impossibility of prompt personal service, i.e., the party relying on substituted service
or the sheriff must show that defendant cannot be served promptly or there is
impossibility of prompt service within a reasonable time, reasonable time being “so
much time as is necessary under the circumstances for a reasonably prudent and
diligent man to do, conveniently, what the contract or duty requires that should be done,
having a regard for the rights and possibility of loss, if any..] To the other party”.
Moreover, it must be indicated therein that the sheriff has made several attempts at
personal service for at least three (3) times on at least two (2) different dates.
2. Specific details in the return, i.e., the sheriff must describe in the return of summons
the facts and circumstances surrounding the attempted personal service.
3. Substituted service effected on a person of suitable age and discretion residing at
defendant’s house or residence; or on a competent person in charge of defendant’s
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

office or regular place of business (ma. Imelda m. Manotoc v. Court of appeals, g.r. No.

130974 august 16, 2006).

Service of summons (2016)

Tristan filed a suit with the rtc of pasay against arthur king and/or estate of arthur king
for reconveyance of a lot declared in the name of arthur king under tct no. 1234. The
complaint alleged that “onaccount arthur king’s residence abroad up to the present and
the uncertainty of whether he is still alive or dead, he or his estate may be served with
summons by publication.” Summons was published and nobody filed any responsive
pleading within sixty (60) days therefrom. Upon motion, defendants were declared in
default and judgment was rendered declaring tristan as legal owner and ordering
defendants to reconvey said lot to tristan, jojo, the court-designated administrator of
arthur king’s estate, filed a petition for annulment of judgment before the ca praying that
the decision in favor of tristan be declared null and void for lack of jurisdiction. He claims
that the action filed by tristan is an action in personam and that the court did not acquire
jurisdiction over defendants arthur king and/or his estate. On the other hand, tristan
claims that the suit is an action in remor at least an action quasi in rem. Is the rtc judge
correct in ordering service of summons by publication? Explain. (5%)
Suggested answer
Yes. The rtc judge is correct in ordering the service of summons by pubii cation. An
action for declaration of nullity of title and recovery of ownership of real property, or re-
conveyance, is a real action but it is an action in personam, for it binds a particular
individual only although it concerns the right to a tangible thing. Any judgment therein is
binding only upon the parties properly impleaded (heirs of eugenio lopez, sr. V.
Enriquez cited in emerita munoz v. Atty. Victoriano r. Yabut, jr. And samuel go chan, g.r.
No. 142676, june 6, 2011).
In an action in personam, jurisdiction over the person of the defendant. Is necessary for
the court to validly try and decide the case. Jurisdiction over the person of a resident
defendant who does not voluntarily appear in court can be acquired by personal service
of summons as provided under section 7, rule 14 of the rules of court. If he cannot be
personally served with summons within a reasonable time, substituted service may be
made in accordance with section 8 of said rule (spouses domingo m. Beleri, et al. Vi
hon. Pablo r. Chavez, et al., g.r. No. 175334, march 26, 2008).
Under section 14, rule 14, rules of court, in any action where the defendant is
designated as an unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service may, by leave of court,
be effected upon him by publication in a newspaper of general circulation and in such
places and for such time as the court may order. This rule applies to any action,
whether in personam, in rem or quasi in rem (pedro t. Santos, jr. V. Pnoc exploration
corporation, g.r. No. 170943, september 23, 2008). Clearly, since the action for
reconveyance is an action in personam, the rtc judge is correct in ordering service
of summons by publication.
Alternative answer
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

No. The rtc judge is not correct in ordering service of summons by publication. It is well-
settled that in an action in personam wherein the defendant is a non-resident who does
not voluntarily submit himself to the authority of the court, personal service of summons
within the state is essential to the acquisition of jurisdiction over her person. This
method of service is possible if such defendant is physically present in the country. If he
is not found therein, the court cannot acquire jurisdiction over his person and therefore
cannot validly try and decide the case against him (spouses domingo m. Belen, et al. V.
Hon. Pablo r. Chavez, et al., g.r. No. 175334, march 26, 2008). Accordingly, the rtc
judge is not correct in ordering service of summons by publication.

Service of summons (2015)

Circe filed with the rtc a complaint for the foreclosure of real estate
mortgage against siblings scylla and charybdis, co-owners of the property and
cosignatories to the mortgage deed. The siblings permanently reside in athens, greece.
Circe tipped oft sherilt pluto that scylla is on a balikbayan and is billeted at the century
plaza hotel in pasay city, sheriff pluto went to the hotel and personally served scylla the
summons, but the latter refused to receive summons for charybdis as she was not
authorized to do so. Sheriff pluto requested scylla for the email address and has
number of charybdis which the latter readily zave. Sheriff pluto, in his return of the
summons, stated that “summons for scylla was served personally as shown by her
signature on the receiving copy of the summons, summons on charybdis was served
pursuant to the amendment of rule 14, by facsimile transmittal of the surmons and
complaint on defendant’s far number as evidenced by transmission verification report
automatically generated by the fax machine indicating that it was received by the fax
number to which it was sent on the date and time indicated therein.” Circe, sixty (60)
days after her receipt of sheriff pluto’s return, filed a motion to declare charybdis in
default as charybdis did not file any responsive pleading.
1. A) should the court declare charybdis in default? (2%)
Scylla seasonably filed her answer setting forth therein as a defense that charybdis
had paid the mortgage debt.
(b) on the premise that charybdis was properly declared in default, what is the
effect of scylla’s answer to the complaint? (2%)
Suggested answer
(a) no, the court should not declare charybdis in default because there was
no proper service of summons. Section 12, rule 14 of the rules of court applies
only to a foreign private juridical entity that is not registered in the philippines and has
no resident agent in the country, and not to individuals (a.m. No. 11-3-6-sc, march 15,
2011). The service of summons by facsimile under said rule is, therefore, defective.
A foreclosure of real estate mortgage is a quasi in rem action, thus, the court can render
a judgment as long as it has jurisdiction over the res and any of the modes of extra-
territorial service of summons under sec. 15 of rule 14 is complied with prior leave of
court. There is, unfortunately, no showing in the problem that a prior leave of court was
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

obtained before resorting to extra-territorial service of summons; hence, the service of

summons is defective.
(b) assuming that charybdis was properly declared in default, the court shall try
the case against all the defendants upon the answer filed by: scylla, and render
judgment upon the evidence presented (section 3 (c), rule 9, rules of court).
Service of summons (2013)
Alfie bravo filed with the regional trial court of caloocan, a complaint for a sum of money
against charlie delta. The claim is for php1.5 million. The complaint alleges that charlie
borrowed the amount from alfie and duly executed a promissory note as evidence of the
loan. Charlie's office secretary, esther, received the summons at charlie's office.
Charlie failed to file an answer within the required period, and alfie moved to declare
charlie in default and to be allowed to present evidence ex parte. Ten days later, charlie
filed his verified answer, raising the defense of full payment with interest.

I. (a) was there proper and valid service of summons on charlie? (3%)

Suggested answer:

No. There is no showing that earnest efforts were exerted to personally serve the
summons on the defendant before substituted service was resorted to; hence, the
service of summons was improper.
In an action strictly in personam like a complaint for a sum of money, personal service
on the defendant is the preferred mode of service, that is, by handing a copy of the
summons to the defendant in person. If defendant, for excusable reasons, cannot be
served with the summons within a reasonable period, then substituted service can be
resorted to (manotoc v. Court of appeals, g.r. No. 130974, august 16, 2006). Otherwise
stated, it is only when the defendant cannot be served personally within a reasonable
time that a substituted service may be made. Impossibility of prompt service should be
shown by stating the efforts made to find the defendant personally and the fact that
such efforts failed. This statement should be made in the proof of service (galura v.
Math-agro corporation, g.r. No. 167230, august 14, 2009).
Since there was no prior attempt to serve the summons in person, the substituted
service to charlie's secretary is invalid.

Alternative answer:

Yes. If earnest efforts were exerted to serve the summons in person but the same
proved futile, then substituted service through defendant's secretary is valid. In gentle
supreme philippines inc u. Ricardo consulta, (g.r. No. 183182, september 1, 2010), the
supreme court held that it is not necessary that the person in charge of the defendant's
regular place of business be specifically authorized to receive the summons. It is
enough that he appears to be in charge. Consequently, the substituted service of
summons to the defendant's secretary in the office is valid.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

2009

Summons; served by email

Summons may be served by mail. (2009)

Suggested answer:

False. Rule 14 of the rules of court, on summons, provide only for serving
summons (a) to the defendant in person; or (b) if this is not possible within a reasonable
time, then by substituted service in accordance with sec. 7 thereof; or (c) if any of the
foregoing two ways is not possible, then with leave of court, by publication in
accordance with same rule.

Alternative answer:

true, but only in extraterritorial service under sec. 15 of the rule on summons
where service may be effected "in any other manner the court may deem sufficient".

Summons; by publication

Lani filed an action for partition and accounting in the regional trial court (rtc) of manila
against her sister mary rose, who is a resident of singapore and is not found in the
philippines. Upon motion, the court ordered the publication of the summons for three
weeks in a local tabloid, bulgar. Linda, an ofw vacationing in the philippines, saw the
summons in bulgar and brought a copy of the tabloid when she returned to singapore.
Linda showed the tabloid and the page containing the summons to mary rose, who said,
"yes i know, my kumare anita scanned and e-mailed that page of bulgar to me!"

Did the court acquire jurisdiction over mary rose? (2008)

Suggested answer:

No, the court did not acquire jurisdiction over mary rose, the defendant. While
serving summons publication is allowed in this case under section 15, rule 14 of the
rules of court, the required sending of the copy of the summons and the order of the
court by registered mail to last known address of the same defendant has not been
followed; service of summons by publication under said rule has not been complied
with; thus, there is no valid service.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Alternative answer:

yes, the court acquired jurisdiction over mary rose because service of summons
by publication is allowed when the defendant does not reside and is not found in the
philippines and the action is in rem or quast in rem under sec. 25, rule 14 of 1997 of civil
procedure. Besides mary rose had actual knowledge of the complaint against her (pcib
v. Alejandro, 533 scra 738[2007]).

Summons
1998
A. What is the effect of absence of summons on the judgment rendered in the
case? (2%)
B. When additional defendant is impleaded in the action, is it necessary that
summons be served upon him? Explain. (2%)
C. Is summon required to be served upon a defendant who was substituted for
the decreased? Explained. (2%)
D. A sued XX Corporation (XXC), a corporation organized under Philippine
laws, for specific performance when the latter failed to deliver T-shirts to the
former as stipulated in their contract of sale. Summons was served on the
corporation’s cashier and director. Would you consider service of summons
on either officer sufficient? Explain. (2%)

Suggested Answer:
a. The effect of absence of the summons on the judgment would make the
judgment null and void because the court would not have jurisdiction
over the person of defendant, but if the defendant voluntarily appeared
before the court, his appearance is equivalent to the service of
summons. (Sec. 20, Rule 14, 1997 Rules)

b. Yes. Summons must be served on a additional defendant impleaded in

the action so that the court can acquire jurisdiction over him, unless he
makes a voluntary appearance.

c. No. A defendant who was substituted for the deceased neet not be
served with summons because it is the court which orders him as the
legal representative of the deceased to appear and substitute the
deceased. (Sec. 16 of Rule 3.)

d. Summons on a domestic corporations through its cashier and director

are not valid under the present rules. (Sec. 11, Rule 14, Rules of Court).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

They have been removed from those who can be served with summons
for domestic corporation. Cashier was substituted by treasurer.(Id.)

Question no. 8 (1995)

Jose. Lao and luis executed a promissory note in favor of teresita comparza which
reads: tor value received we promise jointly and severally to pay teresita comparza the
sum of p300 000.00 on or before 31 december 1994." all three signed the note.
Despite demands after due date no payment was made on the note prompting teresita
to sue the three promisors. Summonses together with copies of the complaint were
saved on all of them but only lilo answered. 'Upon teresita's motion, jose and luis were
declared in default.
1.Against whom and upon what basis should the court try the case considering that
only lito of the three defendants flied an answer and a default order was issued against
jose and luis? Discuss fully.
2.Considering that a defaulted defendant cannot participate in the trial, can lao
present luis on the witness stand to testify alter the latter was defaulted? Discuss fully.
3.Suppose lito dies and the case is dismissed as against him, what is the effect of
his answer as far as his solidary co-debtors jose and luis are concerned? Discuss fully.

Answer:
1.Since the complaint states a common cause of action against the three
defendants, the court shall try the case against all upon the answer filed by lao and
render judgment upon the evidence presented. (sec. 4. Rule 18) in this case, the answer
of lito inures to the benefit of jose and luis, unless the defense of lao is personal to him
alone.
2.There is no provision in the rules disqualifying parties declared in default from
taking the witness stand for non-disqualified parties. A party declared in default loses his
standing in court, but this must be understood to mean only the forfeiture of one's tights as
a party litigant. Lie is not disqualified to be a witness or a deponent in a case. (cautll us.
Florendo. 154 scra 610)
If lito dies after he has presented evidence, the same inures to the benefit of jose and luis.
But if lito dies before he has presented evidence, jose and luis cannot present such
evidence.

Question no. 7 (1993)

In its complaint before the rtc. Singer (phil.), inc. Alleged that it is a
corporation organized and existing under philippine laws: that another corporatton.
With the corporate name singer, inc. And organized undri the law of the united
states, had incurred obligations to several foreign creditors whom it refuses to
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

pay; that although singer (phit.) Inc is a corporation separate and distinct from
singer. Inc. And that singer (phil.), inc. Had no participation or liability whatsoever
regarding the transactions between singer. Inc. And the creditors, said
creditors have been demanding from singer (phil.). Inc. The payment of the
obligations to them (creditors of singer. Inc.)

Singer (phil.). Inc. Therefore, prayed for injunctive relief against the creditors
(whom it unpleaded as the defendants in the action) by way, of enjoining the
latter from making further demands on it for payment of the obligations of
singer. Inc. To them (creditors.)

The defendants are non-residents and without business addresses in the

philippines but in the u.s. Consequently. Singer (phil.). Inc. Asked for leave of
court to effect octraterfilarial service of summons pursuant to sec. 17, rule 14 of
the rules of court. The trial court granted the motion.

The defendants filed special appearances and questioned the jurisdiction of

the court over their persons. They contended that the court cannot acquire
jurisdiction over their persons because the action does not fall under any of the
situations authorizing extraterritorial service of summons.

Is extraterritorial service of summons proper? Why?

Answer:

No. Because it is only when the action affects the personal status of the
plaintiff. Or any property in the philippines in which defendants have or claim an
interest, or which the plaintiff has attached. That extraterritorial service of
summons is proper. (sec. 17 of rule 14) in this case, the action ls purely an action
for injunction, which is a personal action as well as an action in person= and not
an action in rem or quasi in rem. Hence, personal or substituted service of
summons is necessary in order to conk rjurtsdlct ion on the court. Extraterritorial
service of summons on defendants will not confer on the court jurisdiction or
power to compel them to obey its orders. (kawasaki port services corporation vs.
Amores, 199 scra 230)

25. Upon failure of x to pay the promissory note for p100,000.00 which he executed
in favor of y, the latter filed a complaint for a sum of money with the application
for the issuance of writ of preliminary attachment alleging therein that x is about
to dispose of his properties in fraud of his creditors.
a. May the court issue the writ immediately upon the filing of the complaint and
before service of summons?
b. If service of summons is indispensable before the writ may be issued, is
hearing on the application necessary?
c. If the writ was issued and x filed a motion to quash the attachment, may the
motion be granted ex-parte? (1991)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

a. Yes, because sec. 1 of rule 57 provides that a writ of preliminary

attachment may be obtained at the commencement of the action.
b. No, because a writ of preliminary attachment may be issued ex-parte.
(toledo v. Judge burgos, 164 scra 513; cosiquien v. Ca, 188 scra 619)
c. No, because whether the basis of the motion to quash the attachment
is a cash deposit or counterbond on the ground that the same was
improperly or irregularly issued, a hearing was necessary. (secs. 12
and 13 or rule 57; mindanao savings & loan association v. Ca, 172
scra 480)

Alternative answer:

a. In the case of sievert v. Ca, 168 scra 692, it was ruled that a hearing on the
application for a writ of preliminary attachment may not be held without a prior
service of summons.

26. While the trial was ongoing, the lawyer of mario reyes discovered that there was
improper service of summons, the summons having been sent by registered
mail. He filed a motion to dismiss on the ground that the court had not acquired
jurisdiction over the person of mario reyes.

should the said motion be granted? Explain your answer(1990)

Suggested answer:

No, because filing his answer and going to trial without previous objection to the
lack of jurisdiction over his person, mario reyes is deemed to have waved the
defect of improper service of summons. (sec. 20 of rule 14)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

27. Are the rules on summons under rule 14 of the rules of court applicable equally in
actions before the regional trial courts as well as in metropolitan trial courts,
municipal trial courts, municipal circuit trial courts? (1989)

Suggested answer:

Yes, because the procedure to be observed in the metropolitan trial courts,

municipal trial courts, municipal circuit trial courts is the same that observed in
the regional trial courts, and rule 5 which conveyed procedure in inferior courts
including, summons, was repealed. (sec 8 of interim rules)

Note: summons. Is the writ by which the defendant is notified of the

action brought against him. In civil cases, summons, is the counterpart
of warrant of arrest in criminal cases. The purpose of which is to have
jurisdiction over the person of the defendant.

28. When is extra-territorial service of summons proper? (1989)

Suggested answer:

Extra-territorial service of summons is proper when the defendant does not

reside and is not found in the philippines and the action affects the personal
status of the plaintiff or relates to, or the subject of which is, property within the
philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the
defendant has been attached within the philippines. (sec 17, rule 14). It is also
proper when the defendant ordinarily resides within the philippines, but is
temporarily out of it. (sec 18, rule 14)

note: section 17. Extraterritorial service. — when the defendant

does not reside and is not found in the philippines, and the action
affects the personal status of the plaintiff or relates to, or the subject
of which is, property within the philippines, in which the defendant has
or claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from
any interest therein, or the property of the defendant has been
attached within the philippines, service may, by leave of court, be
effected out of the philippines by personal service as under section 6;
or as provided for in international conventions to which the philippines
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

is a party; or by publication in a newspaper of general circulation in

such places and for such time as the court may order, in which case a
copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant, or in any
other manner the court may deem sufficient. Any order granting such
leave shall specify a reasonable time, which shall not be less than
sixty (60) calendar days after notice, within which the defendant must
answer. (new rules of court).

29. Evelyn filed a complaint for a sum of money against joan but the complaint was
later dismissed for failure to prosecute within a reasonable time. Thereafter,
evelyn filed another case based on the same facts against joan. Joan moved to
dismiss the same on the same ground that the cause of action therein is barred
by a prior judgment (res judicata). Evelyn opposed the motion claiming that res
judicata has not set in since joan was not served with summons and the
complaint in the first case was earlier dismissed, so that the trial court never
acquired jurisdiction over her person and, consequently, over the case. How
would you decide the motion of joan? Explain. (1989)

Suggested answer:

The motion to dismiss is denied. One of the essential requisites of res judicata is
jurisdiction over the parties. In as much as joan was not served with summons in
the first case was earlier dismissed, the court did not acquire jurisdiction over her
person and, hence, the dismissal was without prejudice to the filing of another
action against her. (republic planters vs. Molina, september 28. 1988)

30. “a” filed before the regional trial court in makati, metro manila, an action for
damages against “b” for a tort allegedly committed by “b” while “b” was on a
vacation in the philippines when he temporarily lived at the residence of his
brother in makati. The summons was served on “b’s” brother. “b’s” lawyer filed a
motion to dismiss on behalf of “b” and asserted that “b” was not a resident of and
could not be found in the philippines so that the court cannot acquire jurisdiction
over his person. The motion also alleged that anyway the action has prescribed
the further asserted a claim for litigation expenses. Assume that “b’s” lawyer had
been authorized by “b” to represent him.

If you were the judge, will you dismiss the case on the ground of the
court’s lack of jurisdiction over the person of “b”? Explain. (1987)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

No. Although substituted service of summons on “b’s” brother was not

valid inasmuch as “b” was not a resident of the philippines, the motion to
dismiss filed by “b’s” lawyer constituted a voluntary appearance, inasmuch
as it not only questioned the jurisdiction of the court over his person, but
also alleged prescription and a claim for litigation expenses. (note: the
claim for litigation expenses may properly be made in a counterclaim.)
notes:
1997 rules on civil procedure:
Rule 14 summons - sec. 20. Voluntary appearance. - the defendant's
voluntary appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance.

2020 revised rules on civil procedure:

Rule 14 summons – sec. 23. Voluntary appearance. - the defendant's
voluntary appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall be
deemed a voluntary appearance.(20a)

RULE 15 MOTIONS

2010

Pleadings; motions; omnibus motion rule

Charisse, alleging that she was a resident of lapu-lapu city, filed a complaint for
damages against atlanta bank before the rtc of lapu-lapu city, following the dishonor of a
check she drew in favor of shirley against her current account which she maintained in
the bank’s local branch. (2010)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The bank filed a motion to dismiss the complaint on the ground that it failed to state a
cause of action, but it was denied. It thus filed an answer.

a. In the course of the trial, charisse admitted that she was a us citizen residing in
los angeles, california and that she was temporarily billeted at the pescado hotel
in lapu-lapu city, drawing the bank to file another motion to dismiss, this time on
the ground of improper venue, since charisse is not a resident of lapu-lapu city.

Charisse opposed the motion citing the "omnibus motion rule." rule on the motion. (3%)

Suggested answer:

The bank’s second motion to dismiss which is grounded on improper venue, should be
denied. The improper venue of an action is deemed waived by the bank’s filing and
earlier motion to dismiss without raising improper venue as an issue, and more so when
the bank filed an answer without raising an improper venue as an issue after its first
motion to dismiss was denied.

Under the “omnibus motion rule” (rule 15, sec. 8, rules of court) which governs the
bank’s motion to dismiss, such motion should include all objections the available;
otherwise, all objections not so included shall be deemed waived.

Although the improper venue became known only in the course of trial, the same should
not be allowed to obstruct or disturb the proceedings since venue of civil actions is
defined for the convenience of the parties, nay jurisdictional.

Alternative answer:

The “omnibus motion rule” should not apply, because the improper venue became
known and thus available only to the movant bank after the motions to dismiss were
filed and resolved by the court, and in the course of the trial of the case. In fairness to
the defendant bank, it should not be precluded by the “omnibus motion rule” from
raising objections to the improper venue only when said ground for objection became
known to it.

The court may not resolve the second motion to dismiss precisely because of the
“omnibus motion rule”, since the bank filed an earlier motion to dismiss but did not raise
the ground of improper venue, and subsequently filed an answer wherein the improper
venue has not again been raised. Hence, the question of improper venue has become
moot and academic.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The only grounds not barred by the “omnibus motion rule” are (a) lack of jurisdiction
over the subject matter; (b) litis pendencia; and (c) bar by prior judgment or by statute of
limitations.

b. Suppose charisse did not raise the "omnibus motion rule," can the judge proceed
to resolve the motion to dismiss? Explain. (3%)

Suggested answer:

Yes, the judge can proceed to resolve the motion to dismiss, because the ground raised
therefore became known to the movant only during the trial, such that it was only then
that the objection became available to him.

c. Suppose the judge correctly denied the second motion to dismiss and rendered
judgment in favor of charisse, ordering the bank to pay her p100,000 in damages
plus legal interest. The judgment became final and executory in 2008. To date,
charisse has not moved to execute the judgment. The bank is concerned that its
liability will increase with the delay because of the interest on the judgment
award.

As counsel of the bank, what move should you take? (3%)

Suggested answer:

As counsel of the bank, i shall recommend to the bank as judgment obligor, to make a
tender of payment to the judgment obligee and thereafter make a consignation of the
amount due by filing an application therefor placing the same at the disposal of the court
which rendered the judgment (arts. 1256 and 1258, civil code).

2007

Pleadings; motion

A motion is a pleading. (2007)

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

False. A motion is not a pleading but a mere application for relief other than by a
pleading (rule 15, sec. 1, rules of court).

Pleadings; motions; bill of particulars

Within the period for filing a responsive pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain date. However, the defendant was
surprised to find on the date set for hearing that the trial court had already denied the
motion on the day of its filing, stating that the allegations of the complaint were
sufficiently made. (2007)

A. Did the judge gravely abuse his discretion in acting on the motion without waiting
for the hearing set for the motion? (3%)

Suggested answer:

(a) no, the judge did not gravely abuse his discretion when he denied the motion for bill
of particulars without waiting for the hearing set in the motion.

Section 2, rule 12 of the rules of court authorizes the court to either deny or grant said
motion outright upon the clerk of court bringing such motion to the attention of the court.
The motion may lack merit.

B. If the judge grants the motion and orders the plaintiff to file and serve the bill of
particulars, can the trial judge dismiss the case if the plaintiff does not comply with the
order? (3%)

Suggested answer:

(b) Yes, the trial judge can dismiss the case if the plaintiff failed to comply with the
court’s order to file and serve the needed bill of particulars. Section 4, rule 12 of
the rules of court authorizes the court to order the striking out of the pleading
affected, hence the dismissal of the complaint. To the same end is the provision
of section 3, rule 17 of the rules when plaintiff fails to comply for no justifiable
cause with any order of the court or with the rules

Question: (2006)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

tina guerrero filed with the regional trial court of biñan, laguna, a complaint for
sum of money amounting to p1 million against carlos corro. The complaint alleges,
among others, that carlos borrowed from tina the said amount as evidenced by a
promissory note signed by carlos and his wife, jointly and severally. Carlos was served
with summons which was received by linda, his secretary. However, carlos failed to file
an answer to the complaint within the 15-day reglementary period. Hence, tina filed with
her to present evidence ex parte. Five days thereafter, carlos filed his verified answer to
the complaint denying under oath the genuineness and due execution of the promissory
note; and contending that he has fully paid his loan with interest at 12& per annum.

A. Was the summons validly served?

B. If you were the judge, will you grant tina’s motion to declare carlos in default?

Suggested answer:
A. No, the summons was not validly served on carlos. As a general rule, summons
must be served on the defendant in person. (rule 14) substituted service may be
resorted to only when the defendant cannot be served personally within a
reasonable time and for a justifiable reason (rule 14). The return must show the
impossibility of service.

B. No, i will not grant tina’s motion to declare carlos in default. Considering that
there was no proper service of summons, the reglementary period to file a
responsive pleading was not tolled. Carlos was not duty bound to submit an
answer. Moreover, carlos submitted a verified answer. It is better to decide a
case on the merits than on sheer technicality.

Question: (2004)

Summons were issued by the metro manila rtc and actually received on time by
the defendant from his wife at their residence. The sheriff earlier that day had delivered
the summons to her at said residence because the defendant was not home at the time.
The sheriff’s return or proof of service filed with the court in sum states that the
summons, with attached copy of the complaint, was served on defendant at his
residence through his wife, a person of suitable age and discretion then residing therein.
Defendant moved to dismiss on the ground that the court had no jurisdiction over his
person as there was no valid service of summons on him because the sheriff’s return or
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

proof of service does not show that the sheriff first made a genuine attempt to serve the
summons on defendant personally before serving it through his wife.

is the motion to dismiss meritorious? What is the purpose of summons and by

whom may it be served? Explain.

Suggested answer:

The motion to dismiss is not meritorious because the defendant actually received
the summons on time from his wife. Service on the wife was sufficient (boticano v. Chu,
148 scra 541 [1987]). It is the duty of the court to look into the sufficiency of the service.
The sheriff’s negligence in not stating in his return that he first made a genuine effort to
serve the summons on the defendant, should not prejudice the plaintiff (mapa v. Court
of appeals, 214 scra 417 [1992]). The purpose of summons is to inform the defendant of
the complaint filed against him and to enable the court to acquire jurisdiction over his
person. It may be served by the sheriff or his deputy or any person authorized by the
court.

Alternative answer:

The motion to dismiss is meritorious. Substituted service cannot be effected

unless the sheriff’s return shows that he made a genuine attempt to effect personal
service on the husband.

Question: (2002)
the 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 with a copy of 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 18-year old daughter, who was a college
student. For the defendant’s failure to answer the complaint within the reglementary
period, the trial court, on motion of the plaintiff, declared the defendant in default. A
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

month later, the trial court rendered judgment holding the defendant liable for the entire
amount prayed for in the complaint.
A. After the judgment had become final, a writ of execution was issued by the court.
As the writ was returned unsatisfied, the plaintiff filed a motion for an order
requiring the defendant to appear before it and to be examined regarding his
property and income. How should the court resolve the motion? (2%)

B. Seven years after the entry of judgment, the plaintiff filed an action for its revival.
Can the defendant successfully oppose the revival of the judgment by contending
that it is null and void because the rtc-manila did not acquire jurisdiction over his
person? Why? (3%)

Suggested answer:

A. The rtc-manila should deny the motion because it is in violation of the rule that no
judgment obligor shall be required to appear before a court, for the purpose of
examination concerning his property and income, outside the province or city in
which such obligor resides. In this case the judgment obligor resides in bulacan.
(rule 39, sec. 36).

Suggested answer:

B. Yes, because the sheriff did not exert sufficient effort to serve summons
personally on the defendant within a reasonable time and hence the rtc-manila
did not acquire jurisdiction over his person. [rule 14, secs. 6 and 7; de guzman
vs. Court of appeals, 271 scra 728 (1997)].

QUESTION(2000):

The RTC rendered judgment against ST, copy of which was received by his counsel on
February 28, 2000. On March 10, 2000, ST, through counsel, filed a motion for
reconsideration of the decision with notice to the Clerk of Court submitting the motion
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

for the consideration of the court. On March 15, 2000, realizing that the Motion lacked a
notice of hearing, ST’s counsel filed a supplemental pleading. Was the Motion for
Reconsideration filed within reglamentary period? Explain

SUGGESTED ANSWER:

Yes, because the laast day for filing a motion for reconsideration was
March 15 if February had 28 days or March 16 if February had 29 days. Although
the original motion for reconsideration was defective because it lacked a notice
of hearing the defect was cured on time by its filing on March 15 of a
supplemental pleading, provided the motion was set for hearing and served on
the adverse party at least three (3) days before the date of hearing. (Sec. 4, Rule
15, 1997 Rules of Civil Procedure)

ALTERNATIVE ANSWER:

Since the supplemental pleading was not set for hearing, it did not cure the
defect of the original action.

Rule 16: motion to dismiss

Motion to dismiss (2017)
After working for 25 years in the middle east, evan returned to the philippines to retire in
manila, the place of his birth and childhood. Ten years before his retirement, he bought
for cash in his name a house and lot in malate, manila. Six months after his return, he
learned that his house and lot were the subject of foreclosure proceedings commenced
by abc bank on the basis of a promissory note and a deed of real estáte mortgage he
had allegedly executed in favor of abc bank five years earlier.
Knowing that he was not in the country at the time the promissory note and deed of
mortgage were supposedly executed, evan forthwith initiated a complaint in the rtc of
manila praying that the subject documents be declared null and void.
Abc bank filed a motion to dismiss evan’s complaint on the ground of improper venue
on the basis of a stipulation in both documents designating quezon city as the exclusive
venue in the event of litigation between the parties arising out of the loan and
mortgage.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Should the motion to dismiss of abc bank be granted? Explain your answer(5%)

Suggested answer:
No. Abc bank’s motion to dismiss should be denied in briones court of appeals (g.r. No.
204444, january 14, 2015), the supreme court ruled that a complaint directly assailing
the validity of the written instrument itself should not be bound by the exclusive venue
stipulation contained therein and should be filed in accordance with the general rules on
venue. The supreme court ruled that it would be inherently inconsistent for a complaint
of this nature to recognize the exclusive venue stipulation when it, in fact, precisely
assails the validity of the instrument in which such stipulation is contained.
In this case, evan’s complaint directly assails the validity of the promissory note and
deed of mortgage, which contains said venue stipulation; hence, said venue stipulation
is not binding on him. Evan correctly filed his complaint with the manila rtc pursuant to
rule of the rules of court.

Question: (2004)

was the court’s ruling concerning jurisdiction correct? Was the court’s order to
forward the case proper? Briefly explain.

Suggested answer:

Under sec. 3 of rule 16, the court may dismiss the action or claim, deny the motion or
order the amendment of the pleading but not to forward the case to another court.

QUESTION(2000):

AB, as mother and in her capacity as legal guardian of her legitimate minor son, CD,
brought action for support against EF, as fater of CD and AB’s lawfully wedded
husband. EF filed his answer denying his paternity with counterclaim for damages.
Subsequently, AB filed a manifestation in court that in view of the denial made by EF, it
would be futile to pursue the case against EF, AB agreed to move for the dismissal of
the complaint, subject to the condition that EF will withdraw his counterclaim for
damages. AB and EF filed a joint motion to dismiss. The court dismissed the case with
prejudice. Later on, minor son CD, represented by AB, filed another complaint for
support against EF. EF filed a motion to dismiss on the fround of res judicata.

a) Is res judicata a valid ground for dismissal of the second complaint? Explain
your answer

b) What are the essential requisites of res judicata?

SUGGESTED ANSWER:

a) No, res judicata is not a defense in an action for support even if the first
case was dismissed with prejudice on a joint motion to dismiss. The plaintiff’s
mother agreed to the dismissal of the complaint for support in view of the
defendant’s answer denying his paternity with a counterclaim for damages. This
was in the nature of a compromise of the right of support which is prohibited by
law. (Art 2035, Civil Code; De Asis v. CA, 303 SCRA 176 [1999]).

b) The essential requisites of res judicata are:

(1) The judgment or order rendered must be final;
(2) the court rendering the same must have jurisdiction of the subject
matter and of the parties;
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(3) it must be a judgment or order on the merits;

(4) there must be between the two cases identity of the parties,
identity of subject matter, and identity of causes of action. (San
Diego v. Cardona, 70 Phil. 281 [1940].)

QUESTION (1998)

A, a resident of Lingayen, Pangasinan sued X, a resident of San Fernando, La Unionin

the Regional Trial Court (RTC) of Quezon City for the collection of a debt of 1 million.

X did not file a motion to dismiss for improper venue but filed his answer raising
therein improper venue as an affirmative defense. He also filed a counterclaim for
P80,000 against A for attorney’s fees and expenses for litigation. X moved for his
preliminary hearing on said affirmative defense. For his part, A filed a motion to dismiss
the counterclaim for lack of jurisdiction.

1. Rule on the affirmative defense of improper venue.

2. Rule on the motion to dismiss the counterclaim on the ground of lack of
jurisdiction over the subject matter.

SUGGESTED ANSWER:

1. There is improper venue. The case for sum of money, which was filed in
Quezon City, is a personal action. It must be filed in the residence of
either the plaintiff, which is in Pangasinan, or of the defendant, which is
in San Fernando, La Union. (Sec 2 of Rule 4, 1997 Rules of Civil
Procedure.) The fact that it was bit raised in a motion to dismiss does
not matter because the rule that if improper venue is not raised in a
motion to dismiss it is deemed waived was removed from the 1997
Rules of Civil Procedure. The new Rules provide that if no motion to
dismiss has been filed, any of the grounds for dismissal may be pleaded
as an affirmative defense in the answer. (Sec. 6 Rule 16.)

2. The motion to dismiss n the ground of lack of jurisdiction over the

subject matter should be denied.
The counter claim for attorney’s fees and expenses of litigation is a
compulsory counterclaim because it necessarily arose out of and is
connected with the complaint. In an original action before the Regional
Trial Court, the counterclaim may be considered compulsory regardless
of the amount. (Sec. 7 of Rule 6, 1997 Rules of Civil Procedure)

Question no. 8 (1993)

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Its decision in civil case no. 93.1000 entitled 'beta inc. Vs. Jaime dela crux"
having become final and executory. The rtc of manila (branch 21) issued a writ of
execution for its enforcement. The sheriff levied upon certain chattels and
scheduled the auction sale thereof.
However. Jacinto santamarla filed a third-party claim with the sheriff
asserting that the chattels levied upon by the latter belong to him and not to the
judgment debtor (jaime dela cruz). Because the ju dgment creditor (beta. Inc.)
Posted an indemnity bond in favor of the sheriff, the latter refused to release the
chattels and threatened to proceed with the auction sale.

Consequently. Jacinto santamaria flied an action against beta inc.. And the
sheriff in the wit of bulacan (branch 8), docketed as civil cast no. 93-487, laying
claim to the levied chattels and seeking to enjoin the sheriff from proceeding with
the auction sale thereof. As prayed for, the court in civil case no. 93-487 issued a
temporary restraining order, followed by a writ of preliminary injunction. By
way of erijoining t he she riff from implement ing the writ of execution issued in civil
case no 93-1000 against the levied chattels pending determination ofjacinto
santamarias claim thereto.
Betainc. And the sheriff filed a motion to dismiss civil case no. 93-487 on the
ground that the court has no power to interfere with the judgment of the int of
manila (branch 211. A coordinate court.
How should the motion to dismiss be resolved? Explain.

Answer:

The motion to dismiss should be denied. A third-party claimant has the right
to vindicate his claim to the property by any proper action. It is the rtc of bulacan
which has the jurisdiction to determine the ownership of the property subject of
the third-party claim. Obviously, a judgment rendered in favor of the third-
party claimant would not constitute interference with the powers or processes of
the wit of manila. If that be so — and it la so because the property, being that
of a stranger. Is not subject to levy on execution — then an interlocutory order
such as a preliminary injunction. Upon a claim and prima fade showing of
ownership by the claimant, cannot be considered as such interference either.
Moreover, the writ is issued against the sheriff. Not against the court. (able a us.
Court°. Lappeals. 45 scra 314)

Question no. 11 (1993)

Judge villamor was the presidingjudge of the regional thal court of quezon city
(branch 50) in the criminal case for qualified theft against ding. After trial. Judge villamor
acquitted ding of the charge.
Subsequently, paterno, the complaining witness in the aforesaid criminal case, filed
a civil action for damages against judge villamor for knowingly rendering an unjust
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

judgment when he acquitted ding of the qualified theft the case was flied in the regional
thal court of pasay city (branch 100), presided over by judge villegas. Judge villamor
flied a motion to dismiss the civil case for lack of authority on the part of regional trial court
of posey city (branch 100) to review his (judge villarnor) decision.
How should the motion dismiss be resolved? Why?

Answer:

The motion to dismiss should be granted. The regional thal court of pasay city has no
authority to review the decision of judge villamor acquitting ding. To allow judge villegas to
proceed with the action for damages against ju dge villamor. A co-equal judge of a co-equal
court would in effect permit a court to review and interfere with the judgment of a co-equal
court over which it has no appellate jurisdiction or power to review. (vdictmor vs. Salon,
203 scra 540).
Alternative answer
The motion to dismiss should be denied. Since the criminal case was terminated
with the acquittal of ding. The civil action for damages againstjudge villamor for knowingly
rendering an unjust judgment may properly be filed with the rtc of pasay city having
jurisdiction thereof.

31. Evelyn filed a complaint for a sum of money against joan but the complaint was
later dismissed for failure to prosecute within a reasonable time. Thereafter,
evelyn filed another case based on the same facts against joan. Joan moved to
dismiss the same on the same ground that the cause of action therein is barred
by a prior judgment (res judicata). Evelyn opposed the motion claiming that res
judicata has not set in since joan was not served with summons and the
complaint in the first case was earlier dismissed, so that the trial court never
acquired jurisdiction over her person and, consequently, over the case. How
would you decide the motion of joan? Explain. (1989)

Suggested answer:

32. before any answer on motion for summary judgment could be filed by the
defendant, the plaintiff filed notice of dismissal of his complaint. The trial court
simply noted the dismissal. Is case considered dismissed?(1989)

Suggested answer:

Yes, because the rule merely requires the filing of a notice of dismissal and does
not require an order of the court dismissing the case. (sec.1 of rule 17)

33. Lawrence filed a complaint against grace to collect a loan of p50,000. Later,
because of their intimate relationship in the past, lawrence filed a notice of
dismissal of his complaint. Subsequently, the two had a serious
misunderstanding so that lawrence again filed a complaint against grace to
collect another loan of p100,000. Lawrence and grace reconciled after which, the
former withdrew his complaint before the latter could file her answer or a motion
for summary judgment. Was the dismissal of the second complaint with or
without prejudice? Explain.(1989)

Suggested answer:

The dismissal of the second complaint is without prejudice because it is based on

another claim of p100,000. If the dismissal were based on the same claim of
p50,000. It would be with prejudice. (id)

34. The court denies the motion to dismiss

1. May xanthe appeal the denial? Reasons.
2. How and on what ground or grounds may defendant xanthe bring the denial
of his motion to dismiss to the appellate courts? Explain. (1988)

Suggested answer:

1. No, because the order of denial is merely interlocutory and only final judgment or
orders are subject to appeal.
2. Defendant x may bring the denial of his motion to dismiss to the appellate
(superior) courts by filing a petition for certiorari on the ground of lack or excess
of jurisdiction or grave abuse of discretion. (newsweek vs iac, 142 scra 171)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

35. The defendant xanthe filed a motion to dismiss plaintiff yogi’s complaint before
the regional trial court.
a. The court grants the motion to dismiss

Explain the remedies or procedure to be resorted to or be pursued by plaintiff to

have the order of dismissal reversed and corrected finally. (1988)

Suggested answer:

The remedy is to appeal to the court of appeals from the order of dismissal
within 15 days from notice thereof by filing a notice of appeal with rtc and serving
a copy thereof on the adverse party.
However, if only a question of law is involved, the remedy is to file a petition for
review on certiorari with the supreme court within 15 days from notice of the
order or the denial of his motion for reconsideration and serving a copy thereof
on the regional trial court and on the adverse party. (laxamana vs ca 143 scra
643)

36. (a) a complaint entitled “a as attorney-in-fact for x plaintiff, versus b, defendant”

was filed to recover a car in the possession of b. A’s power of attorney expressly
authorized him (a) to sue for the recovery of the car.

B files the motion to dismiss the complaint for lack of capacity to sue.
Decide the motion. Explain.
(b) a and b, both residents of batangas, entered into a contract of lease over a
parcel of land belonging to b, located in calapan, mindoro.
“a” filed a complaint before the rtc, sitting in batangas city, for the rescission of
the lease contract of the land in mindoro.
“b” filed a motion to dismiss on the ground that the batangas court did not have
jurisdiction over the subject matter, the land being located in mindoro. B
however did not alleged improper venue in his motion.
Decide with reasons. (1988)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(a) Motion to dismiss is denied. A has legal capacity to sue but is not the
real party in interest. The ground of the motion to dismiss should have
been that the complaint states no cause of action because it was filed
by “a as attorney-in-fact for x”. The complaint should have been filed in
the name of x as plaintiff. (arroyo vs granada, 18 phil. 484)
(b) motion to dismiss is denied. The fact that the land is located in mindoro
does not affect the jurisdiction of the rtc sitting in batangas city. The
proper venue of the action is the rtc in mindoro. However, since b did
not object to the improper venue in his motion, that ground is deemed
waived. (sec 4 of rule 4)

37. Norma is the owner of love and peace enterprises, a sole proprietorship engaged
in the manufacture of bullets, with a work force of one hundred employees whom
top employee, evelyn, supervises. Norma, however, soon lost confidence in
evelyn, and to force her to resign, refused to pay her salary and other economic
benefits required by law. Instead of resigning, however, evelyn decided to fight
back.

On the strength of article 1701 of the civil code, as follows:

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(a) Motion to dismiss granted. Under the labor code, the labor arbiters have
jurisdiction over all claims for damages sought to be recovered by an
employee from an employer arising from an illegal dismissal or forced
resignation. (atlas fertilizer corp. Vs navarro, 149 scra 432; primero vs iac,
dec. 14, 1987)
(b) Jurisdiction is the authority to hear and determine a cause, the right to act in a
case. It is given by law and in the manner prescribed by law; whereas cause
of action is an act or omission of one party in violation of the legal rights of the
other

Alternative answer:

(a) In a decision penned by justice abad santos (medina vs castro bartolome,

116 scra 597) it was held that if the employer-employee relationship is merely
incidental, the rtc has jurisdiction.

38. “a”, the surviving husband of “b”, executed in favor of “c” a deed entitled “contract
of sale a retro” over a certain parcel of land registered under the torrens system
in which the owner is described as “a, married to b.” Subsequently, “a” sued “c”
for reformation of the contract, alleging that what was agreed upon was really a
mortgage and not a sale a retro. “a’s” complaint was dismissed for failure to
prosecute, however, and the dismissal became final.
a year later, the children of “a” and “b” sued “c” for the annulment of the
contract of sale a retro, alleging that the subject piece of land was acquired by
their parents during their marriage, hence their father had no right to include in
the sale the children’s interest in the property as heirs of their mother, such
children not having consented to the sale.
“c” moved to dismiss the complaint on the ground of bar by former
judgment.
Resolve the motion to dismiss. Explain. (1987)

Suggested answer:

Motion to dismiss denied. There is no bar by former judgment because there is

no identity of causes of action. The cause of action of the children of “a” and “b”
is different from the cause of action of “a”. “a” had no right to sell the parcel of
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

land inasmuch as the same was the conjugal property of “a” and “b”. “a” could
legally sell only his conjugal share of said property and could not legally sell the
conjugal share of his deceased wife which was inherited by their children without
their consent.

39. “a” filed before the regional trial court in makati, metro manila, an action for
damages against “b” for a tort allegedly committed by “b” while “b” was on a
vacation in the philippines when he temporarily lived at the residence of his
brother in makati. The summons was served on “b’s” brother. “b’s” lawyer filed a
motion to dismiss on behalf of “b” and asserted that “b” was not a resident of and
could not be found in the philippines so that the court cannot acquire jurisdiction
over his person. The motion also alleged that anyway the action has prescribed
the further asserted a claim for litigation expenses. Assume that “b’s” lawyer had
been authorized by “b” to represent him.
If you were the judge, will you dismiss the case on the ground of the
court’s lack of jurisdiction over the person of “b”? Explain. (1987)

Suggested answer:

No. Although substituted service of summons on “b’s” brother was not

Notes:
1997 rules on civil procedure:
Rule 14 summons - sec. 20. Voluntary appearance. - the defendant's
voluntary appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

2020 revised rules on civil procedure:

40. “a” and “b”, brothers and both residents of marikina, metro manila, had opposing
and exclusive claims of ownership over a parcel of land located in morong, rizal.
They consulted with their uncle and requested him to try to amicably settle their
dispute. The uncle failed, despite earnest efforts of all concerned to arrive at a
compromise. “a” thereupon filed a suit for title or ownership without, however,
bringing the dispute to the lupong tagapayapa, for settlement and without
alleging in the complaint that previous earnest efforts towards a compromise had
been exerted by him but had failed. “b” moved to dismiss on the ground of failure
of the complaint to state a cause of action in that (a) it did not aver that “a” had
previously taken earnest but futile efforts towards a compromise and (b) it did not
allege that proceedings for settlement had been filed by the plaintiff before the
lupon but no settlement reached, both of which, according to “b”, are conditions
precedent to a cause of action in favor of “a”.
If you were counsel for “a”, what steps would you take and what
arguments will you advance to meet the motion to dismiss based on the
asserted.
(a) Failure to exert efforts at a compromise; and
(b) Failure to observe the katarungang pambarangay law?
Explain. (1987)

Suggested answer:

As a counsel of “a”, i would file an opposition to “b’s” motion to dismiss by

submitting an affidavit of their uncle, or representing him as a witness, to show
that earnest efforts were made by all concerned to arrive at a compromise, but
without success. I would also argue that prior recourse to barangay conciliation
would have been futile in view of the failure of the uncle to amicably settle the
dispute.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

It is not necessary for me to amend the complaint to allege earnest but

futile efforts towards a compromise and defendant does not raise these grounds
in a motion to dismiss or answer, they are deemed waived. (sec 2 of rule 9: ebel
vs. Amin, 135 scra 438)
However, “b’s” motion to dismiss is well founded because “a” and “b” are
both residents of marikina and prior recourse to barangay conciliation is a
precondition to the filing of “a’s” complaint. (tavora vs. Veloso, 117 scra 613)

Notes:
1997 rules on civil procedure and 2020 revised rules on civil
procedure:
Rule 9 – effect offailureto plead - section 1. Defenses and objections
not pleaded. - defenses and objections not pleaded either in a motion
to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the
action is barred by a prior judgment or by statute of limitations, the
court shall dismiss the claim.

Alternative answer:

I would amend my complaint to allege that earnest efforts towards a

compromise have been made but without success, inasmuch as this is a
condition precedent to the existence of a cause of action. (mendoza vs.
Court of appeals, 19 scra 756)

RULE 17: DISMISSAL OF ACTION

Two-dismissal rule (2018)
Dick dixson had sons with different women - (i) dexter with longtime partner delia and
(ii) dongdong and dingdong with his housemaid divina. When dick fell ill in 2014, he
entrusted all his property titles and shares of stock in various companies to delia who, in
turn, handed them to dexter for safekeeping. After the death of dick, dexter induced
dongdong and dingdong to sign an agreement and waiver of their right to dick's estate
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

in consideration of php 45 million. As dexter reneged on his promise to pay, dongdong

and dingdong filed a complaint with the rtc of manila for annulment of the agreement
and waiver. The summons and complaint were received by dalia, the housemaid of
dexter, on the day it was first served. Dexter filed a motion to dismiss on the ground of
lack of jurisdiction over his person. Rtc manila granted the motion to dismiss.
Dongdong and dingdong thereafter filed a new complaint against dexter for annulment
of the agreement and waiver. Before dexter could file his answer, dongdong and
dingdong filed a motion to withdraw their complaint praying that it be dismissed without
prejudice. An order was issued granting the motion to withdraw without prejudice on the
basis that the summons had not yet been served on dexter. Dexter filed a motion for
reconsideration of the order of dismissal. He argued that the dismissal should have
been with prejudice under the "two-dismissal rule" of rule 17, section 1 of the rules of
court, in view of the previous dismissal of the first case.
Will the two-dismissal rule apply making the second dismissal with prejudice? (5%)
Suggested answer:
The two-dismissal rule will apply because the first dismissal was the instance of the
defendant.
The requirements for the application of the two-dismissal rule under rule 17, section 1 of
the rules of court are: (a) there was a previous case that was dismissed by a competent
court; (b) both cases were based on or include the same claim; (c) both notices for
dismissal were filed by the plaintiff was consented to by the defendant on the ground
that the latter paid and satisfied all the claims of the former. (ching, et al. V. Cheng, et
al., g.r. No. 175507, 8 october 2014)
In this case, the third requisite is absent because the first dismissal was upon the
motion to dismiss filed by dexter. Hence, the two-dismissal rule will not apply.

Question no. 5 (1996)

1) X filed an action for damages against y arising from the latter's tortlous act.
Y flied his answer with a counterclaim for damages suffered and expenses
incurred on account of x's suit. Thereafter. X moved to dismiss the case
since he lost interest in the case. Y did not object. The court dismissed the
action without prejudice. Y moved the court to set the reception of his
evidence to prove his counterclaim.
If you were the judge. How would you resolve the motion? Explain.
i would deny the motion in-as much as y's counterclaim for damages incurred on
account of x's suit cannot remain pending for independent adjudication. Y should have
objected to the dismissal of the complaint. His failure to object deprived him of the right
to present evident to prove his counterclaim (section 2, rule 17; ynotario versus lia, 12
scra 369)

Question 8 (1993)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

X filed an action for re-conveyance against y. Y forthwith filed his answer and served it
on x. A week later. X filed a motion to withdraw the action since he could not avail the
services of counsel. The court dismissed the complaint based on failure to prosecute. A
month after. X instituted the very same action against y. Ynioved to dismiss the case
invoking res judicata. He alleged that dismissal of the first case had the effect of an
adjudication upon the merits since the court's order had no condition that it was without
prejudice. The court dismissed the subsequent case on the ground of res judicata.

Was the trial court correct? Explain.

No. Because the dismissal of the complaint on motion of x is without prejudice

under sec. 2 of rule 17: the court erred in dismissing the complaint for failure to
prosecute for an unreasonable length of time under sec. 3 of rule 17.

RULE 18 PRE-TRIAL

Question: (2006)
Jojie filed with the regional trial court of laguna a complaint for damages against
joe. During the pre-trial, jojie and her counsel failed to appear despite notice to both of
them. Upon oral motion of jojie, joe was declared as in default and jojie was allowed to
present her evidence ex parte. Thereafter, the court rendered its decision in favor of
jojie. Joe hired jose as his counsel. What are the remedies available to him?

Suggested answer:
there can be no judgment by default by mere failure to appear in the pre-trial.
The only consequence of such failure is for the plaintiff to present his evidence ex parte
and the court may render judgment on the basis thereof. The following are the remedies
of joe:

1. Motion for reconsideration

2. Motion for new trial
3. Appeal
4. Petition for relief from judgment (rule 38)
5. Annulment of judgment (rule 47)
6. Petition for certiorari (rule 65)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

QUESTION(2001):

Lilio filed a complaint in the Municipal Trial Court of Lanuza for the recovery of a
sum of money against Juan. The latter filed his answer to the complaint serving a copy
thereof on Lilio.

After the filing of the answer of Juan, whose duty is it to have the case set for
pre-trial? Why?

SUGGESTED ANSWER:

After the filing of the answer of Juan, the plaintiff has the duty to promptly
move ex parte that the case be set for pre-trial. (Sec. 1, Rule 18, 1997 Rules of
Civil Procedure). The reason is that it is the plaintiff who knows when the last
pleading has been filed and it is the plaintiff who has the duty to prosecute.

ALTERNATIVE ANSWER:

In the event the plaintiff files a reply, his duty to move that the case be set
for pre-trial arises after the reply has been served and filed.

Question no. 11 (1992)

At a pre-trial hearing in the regional trial court of which the plaintiff and the
defendant, as well as their respective attorneys of record were duly notified, only
plaintiff’s attorney appeared but without the requisite power of attorney authorizing
him to fully and effectively represent plaintiff at the pre-trial hearing. Because of the
absence of the defendant and his counsel, plaintiff's attorney moved in open court to
have the defendant declared as in default.

Under the circumstances, what should the court do? Discuss fully.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer;
The court should deny the motion to have the defendant declared as in default and
dismiss the action on the ground that only the plaintiff's attorney appeared but without
the requisite power of attorney to fully and effectively represent plaintiff at the pre-trial
hearing. (home insurance company vs. U.s. Lines co.. 21 scra 865)
Another acceptable answer:
Considering the fact that plaintiff's attorney appeared, the court should make the
dismissal without prejudice or reset the pre-trial hearing with notice to the parties.

1. Is pre-trial mandatory in all trial courts? Explain. (1989)

Suggested answer:

Pre-trial is mandatory in all trial courts in civil cases. (sec. 1 rule 30). However, in
criminal cases, pre-trial may be held only when the accused and his counsel
agree. (sec.1, rule 118) in summary procedure, a preliminary conference is held
in both civil and criminal cases. (sec. 6 and 13)

2. May a party who is present at the pre-trial of a civil case and assisted by a
counsel still be declared non-suited or as in default? Explain. (1989)

Suggested answer:

No, because the only ground to declare a party non-suited or considered as in

default at the pretrial is failure to appear thereat. (sec.2 of rule 20)

Alternative answer:

A party who refuses to obey an order of the court under the rules on depositions
and discovery may be declared non-suited or as in default. (sec.3 © of rule 29)
A plaintiff who fails to prosecute may be declared non-suited or as in default.
(sec.3 of rule 17)
Under circular 1-89 on mandatory continuous trial, failure to file a pre-trial brief is
a ground to be declared non-suited or as in default.

RULE 19: INTERVENTION

QUESTION(2000):
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

What are the requisites for an intervention by non-party in an action pending in court?

SUGGESTED ANSWER:

The requisites for intervention are:

(1) Legal interest in the matter in controversy; or
(2) Legal interest in the success of either of the parties; or
(3) Legal interest against both; or
(4) So situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof.
(5) Intervention will not unduly delay or prejudice the adjudication of the
rights of original parties;
(6) Intervenor’s rights may not be fully protected in a separate proceeding.
(Acenas II v. CA, 247 SCRA 773 [1995]; Sec 1, Rule 19, 1997 Rules of Civil
Procedure.)

RULE 21 SUBPOENA

2009

Subpoena; viatory right of witness

True or false. Answer true if the statement is true, or false if the statement is false.
Explain your answer in not more than two (2) sentences. (2009)

The viatory right of a witness served with a subpoena ad testificandum refers to his right
not to comply with the subpoena.

Suggested answer:

False. The viatory right of a witness, embodied in sec. 10, rule 21 of the rules of civil
procedure, refers to his right not to be compelled to attend upon a subpoena, by reason
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

of the distance from the residence of the witness to the place where he is to testify. It is
available only in civil cases (people v. Montejo, 21 scra 72211965]).

Rule 25: interrogatories to parties

Interrogatories to parties (2016)

Briefly explain the procedure on “interrogatories to parties” under rule 25 and state the
effect of failure to serve written interrogatories. (2.5%)
(b) briefly explain the procedure on “admission by adverse party” under rule 26 and the
effect of failure to file and serve the request. (2.5%)
Suggested answer
(a) procedure
1 any party desiring to elicit material and relevant facts from any adverse parties shall
file and serve upon the latter written interrogatories to be answered by the party served
or, if the party served is a public or private corporation or a partnership or association,
by any officer thereof competent to testify in its behalf (section 1, rule 25, rules of court).
2. The interrogatories shall be answered fully in writing and shall be signed and sworn
to by the person making them. The party upon whom the interrogatories have been
served shall file and serve a copy of the answers on the party submitting the
interrogatories within fifteen (15) days after service thereof, unless the court on motion
and for good cause shown, extends or shortens the time (section 2, rule 25, rules of
court).
3. Objections to any interrogatories may be presented to the court
Within ten (10) days after service thereof, with notice as in case of a motion; and
answers shall be deferred until the objections are resolved, which shall be at as early a
time as is practicable (section 3. Rule 25, rules of court).
Should a party fail to file and serve written interrogatories on adverse party, he cannot
compel the latter to give testimony in one court or to give deposition pending appeal,
unless allowed by the court for good cause shown and to prevent a failure of justice
(section 6. Rule 25, rules of court; spouses vicente afulugencia and leticia afulugencia
v. Metropolitan bank & trust co., et al., g.r. No. 185145 february 5, 2014).
(b) procedure
1. At any time after issues have been joined, a party may file and serve upon any party
a written request for the admission by the latter of the genuineness of any material and
relevant document described in and exhibited with the request or of the truth of any
material and relevant matter of fact set forth in the request. Copies of the documents
shall be delivered with the request unless copies have already been furnished (section
1, rule 26, rules of court).
2. Each of the matters of which an admission is requested shall be deemed admitted
unless, within a period designated in the request, which shall not be less than fifteen
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(15) days after service thereof, or within such further time as the court may allow on
motion, the party to whom the request directed files and serves upon the party
requesting the admission a sworn statement either denying specifically the matters of
which an admission is requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.
3. Objections to any request for admission shall be submitted to the court by the party
requested within the period for and prior to the filing of his sworn statement as
contemplated in the preceding paragraph and his compliance therewith shall be
deferred until such obligations are resolved, which resolution shall be made as early as
practicable (section 2, rule 26, rules of court).
4. Any admission made by a party pursuant to such request is for the purpose of the
pending action only and shall not constitute an admission by him for any other purpose
nor may the same be used against him in any other proceeding (section 3, rule 26).
Unless otherwise allowed by the court for good cause shown and to prevent a failure of
justice a party who fails to file and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be, within the personal
knowledge of the latter, shall not be permitted to present evidence on such facts
(emphasis supplied] (section 5, rule 26, rules of court).

Rule 27 production or inspection of documents or things

2009

Discovery; production and inspection

Continental chemical corporation (ccc) filed a complaint for a sum of money against
barstow trading corporation (btc) for the latter's failure to pay for its purchases of
industrial chemicals. In its answer, btc contended that it refused to pay because ccc
misrepresented that the products it sold belonged to a new line, when in fact they were
identical with ccc's existing products. To substantiate its defense, btc filed a motion to
compel ccc to give a detailed list of the products' ingredients and chemical components,
relying on the right to avail of the modes of discovery allowed under rule 27.ccc
objected, invoking confidentiality of the information sought by btc. Resolve btc's motion
with reasons. (2009)

Suggested answer:

I will deny the motion. The ingredients and chemical components of ccc's products are
trade secrets within the contemplation of the law. Trade secrets may not be the subject
of compulsory disclosure by reason of their confidential and privileged character.
Otherwise, ccc would eventually be exposed to unwarranted business competition with
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

others who may imitate and market the same kinds of products in violation of ccc's
proprietary rights. Being privileged, the detailed list of ingredients and chemical
components may not be the subject of mode of discovery under rule 27, section 1 which
expressly makes privileged information an exception from its coverage (air philippines
corporation v. Pennstvell, inc., 540 scra 215 [2007]).

1. Should the judge grant the defendant’s motion for production and
inspection of the original of the promissory note? Why? (2%)

2. Assuming that an order for production and inspection was issued

but the plaintiff failed to comply with it, how should the defendant
plead to the alleged execution of the note? (3%)

Suggested answer
A. No, the plaintiff was not validly declared in default. A motion for extension of time
to file an answer may be filed ex parte and need not be set for hearing. [ amante
vs. Sunga, 4 scra 192 (1975)].
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Alternative answer:
A. The general rule is that a counterclaim must be answered within ten (10) days
from service. (rule 11, sec.4). However, a counterclaim that raises issues which
are deemed automatically joined by the allegations of the complaint need not be
answered. [ gojo vs. Goyola, 35 scra 557 (1970) ]. In this case, the defendant’s
counterclaim is compulsory counterclaim which arises out or is connected with
the transaction and occurrence constituting the subject matter of the plaintiff’s
claim. It raises the same issue of who encroached on whose land. Hence, there
was no need to answer the counterclaim.

Suggested answer:

(2) the defendant is not required to deny under oath the genuineness and
due execution of the promissory note, because of the non-compliance by the
plaintiff with the order for production and inspection of the original thereof.
(rule 8, sec. 8)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

RULE 28: RULE REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Question (2002)
A. The plaintiff sued the defendant in the rtc for damages allegedly caused by the
latter’s encroachment on the plaintiff’s lot. In his answer, the defendant denied
the plaintiff’s claim and alleged that it was the plaintiff who in fact had
encroached on his (defendant’s) land. Accordingly, the defendant counterclaimed
against the plaintiff for damages resulting from the alleged encroachment on his
lot. The plaintiff filed an ex parte motion for extension of time to answer the
defendant’s counterclaim, but the court denied the motion on the ground that it
should have been set for hearing. On the defendant’s motion, therefore, the court
declared the plaintiff in default on the counterclaim. Was the plaintiff validly
declared in default? Why? (5%)

2. Assuming that an order for production and inspection was issued

but the plaintiff failed to comply with it, how should the defendant
plead to the alleged execution of the note? (3%)

Suggested answer:

Alternative answer:
A. The general rule is that a counterclaim must be answered within ten (10) days
from service. (rule 11, sec.4). However, a counterclaim that raises issues which
are deemed automatically joined by the allegations of the complaint need not be
answered. [ gojo vs. Goyola, 35 scra 557 (1970) ].
in this case, the defendant’s counterclaim is compulsory counterclaim which
arises out or is connected with the transaction and occurrence constituting the subject
matter of the plaintiff’s claim. It raises the same issue of who encroached on
whose land. Hence, there was no need to answer the counterclaim.

Suggested answer:

B. (1) yes, because upon motion of any party showing good cause, the court in
which the action is pending may order any party to produce and permit the
inspection of designated documents. (rule 27). The defendant has the right to
inspect and verify the original of the promissory note so that he could intelligently
prepare his answer.

(2) the defendant is not required to deny under oath the genuineness and
due execution of the promissory note, because of the non-compliance by the
plaintiff with the order for production and inspection of the original thereof.
(rule 8, sec. 8)

Alternative answer:

QUESTION(2000):

Describe briefly at least five modes of discovery under the Rules of Court.

SUGGESTED ANSWER:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Five modes of discovery under ROC are:

(1) DEPOSITION. By leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action, or without such leave after
an answer has been served, the testimony of any person, whether a party or not, may
be taken, at the instance of any party, by deposition upon oral examination or written
interrogatories. (Sec. 1, Rule 23, 1997 Rules of Civil Procedure).

(2) INTEROGGATORIES TO PARTIES. Under the same conditions specified in

section 1 of Rule 23, any party shall file and serve upon any adverse party written
interrogatories regarding material and relevant facts to be answered by the party
served. (Sec. 1, Rule 25, 1997 Rules of Civil Procedure)

(3) ADMISSION BY ADVERSE PARTY. At any time after issues have been
joined, a party may file and serve upon any other party a written request for the
admission by the latter of the genuineness of any material and relevant document or of
the truth of any material and relevant matter of fact. (Sec. 1, Rule 26, 1997 Rules of
Civil Procedure.)

(4) PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS. Upon

motion of any party showing good cause therefor, a court may order any party to
produce and permit the inspection and copying or photographing of any designated
documents, etc. or order any party to permit entry upon designated land or property for
inspecting, measuring, surveying, or photographing the property or any designated
relevant object or operation thereon. (Sec. 1, Rule 27, 1997 Revised Rules of Court)

(5) PHYSICAL AND MENTAL EXAMINATION OF PERSONS. In an action in

which the mental or physical condition of a party is in controversy, the court in which the
action is pending may in its discretion order him to submit to a physical ro mental
examination by a physician. (Sec. 1, Rule 28, 1997 Rules of Civil Procedure.)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY

2010

Discovery; modes of discovery; refusal to comply

The metc denied the motion in question a. B lines thus filed an answer raising the
defense that under the bill of lading it issued to a, its liability was limited to p10,000. At
the pre-trial conference, b lines defined as one of the issues whether the stipulation
limiting its liability to p10,000 binds a. A countered that this was no longer in issue as b
lines had failed to deny under oath the bill of lading. Which of the parties is correct?
Explain. (2010)

Suggested answer:

The contention of b is correct: a’s contention is wrong. It was a who pleaded the bill of
lading as an actionable document where the stipulation limits b’s liability to a to
p10,000.00 only. The issues raised by b does not go against or impugn the
genuineness and due execution of the bill of lading as an actionable document pleaded
by a, but invokes the binding effect of said stipulation. The oath is not required of b,
because the issue raised by the latter does not impugn the genuineness and due
execution of the bill of lading.

Discovery; modes of discovery; refusal to comply

On july 21, 2009, b lines served on a a "notice to take deposition," setting the deposition
on july 29, 2009 at 8:30 a.m. At the office of its counsel in makati. A failed to appear at
the deposition-taking, despite notice. As counsel for b lines, how would you proceed?
(2010)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

As counsel for b lines (which give notice to take the deposition), i shall proceed as
follows:

a) Find out why a failed to appear at the deposition-taking, despite notice;

b) If failure was for valid reason, then set another date for taking the
deposition;

c) If failure to appear at deposition taking was without valid reason, then i

would file a motion/application in the court where the action is pending,
for an order to show cause for his refusal to submit to the discovery;
and

d) For the court to issue appropriate order provided under rule 29 of the
rules, for non-compliance with the show-cause order, aside from
contempt of court.

QUESTION(1998):
A filed a complaint for the recovery of ownership of land against B who was represented
by her counsel X. In the course of the trial, B died. However, X failed to notify the court
of B’s death. The court proceeded to hear the case and rendered judgment against B.
After the judgment became final, a writ of execution was issued against C, who being
B’s sole heir, acquired the property.

SUGGESTED ANSWER:

No. It is not direct contempt under Sec.1 of Rule 71, but it is indirect contempt
within the purview of Sec.3 of Rule 71. The lawyer can also be subject of
disciplinary action. (Sec. 16, Rule 3, 1997 Rules of Civil Procedure.)

Rule 30 trial

2008

Trial; court of appeals as trial court

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Give at least three instances where the court of appeals may act as a trial court. (2008)

Suggested answer:

Instances where the court of appeals may act as a trial court are:

(1) in annulment of judgment under secs. 5 and 6, rule 47. Should the court of
appeals find prima facie merit in the petition, the same shall be given due course and
summons shall be served on the respondent, after which trial will follow, where the
procedure in ordinary civil cases shall be observed.

(2) when a motion for new trial is granted by the court of appeals, the procedure
in the new trial hall be the same as that granted by a regional trial court (sec. 4, rule 53).

(3) a petition for habeas corpus shall be set for hearing (sec 12, rule 102).

(4) in a petition for the writs of amparo and habeas data, a hearing can be
conducted.

(5) under section 12, rule 124 of the rules of criminal procedure, the court of
appeals has the power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues cases which fall within its
original and appellate jurisdiction.

(6) the court of appeals can grant a new trial based on the ground of newly
discovered evidence. (sec. 14, rule 124).

(7) the court of appeals, under section 6, rule 46, whenever necessary to resolve
factual issues, may conduct hearing thereon or delegate the reception of the evidence
of such issues to any of its members or to an appropriate agency or office.

[note: it is suggested that an answer with any three (3) of the enumerated
instances should be considered as correct].

Rule 33 – demurrer to evidence

2009

Demurrer to evidence
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

After the prosecution had rested and made its formal offer of evidence, with the court
admitting all of the prosecution evidence, the accused filed a demurrer to evidence with
leave of court. The prosecution was allowed to comment thereon. Thereafter, the court
granted the demurrer, finding that the accused could not have committed the offense
charged. If the prosecution files a motion for reconsideration on the ground that the
court order granting the demurrer was not in accord with the law and jurisprudence, will
the motion prosper? Explain your answer. (2009)

Suggested answer:

No, the motion will not prosper. With the granting of the demurrer, the case shall be
dismissed and the legal effect is the acquittal of the accused. A judgment of acquittal is
immediately executory and no appeal can be made therefrom. Otherwise the
constitutional protection against double jeopardy would be violated.

2007

Demurrer to evidence; civil case vs. Criminal case

(a) distinguish the effects of the filing of a demurrer to the evidence in a criminal case
and its filing in a civil case. (2007)

Suggested answer:

The following are the distinctions in effects of demurrer to the evidence in criminal cases
from that in civil cases:

(1) in criminal cases, demurrer to the evidence requires leave of court, otherwise, the
accused would lose his right to present defense evidence if filed and denied; in civil
cases, no leave of court is required for filing such demurrer.

(2) in criminal cases, when such demurrer is granted, the dismissal of the case is not
appealable inasmuch as the dismissal would amount to an acquittal, unless made by a
court acting without or in excess of jurisdiction; in civil cases, when such demurrer is
granted, the dismissal of the case can be appealed by the plaintiff.

(3) in criminal cases, the accused loses his right to present his defense-evidence in the
trial court when he filed the demurrer without prior leave of court; while in civil cases, the
defendant loses his right to present his defense-evidence only if the plaintiff appealed
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

such dismissal and the case is before the appellate court already since the case would
be decide only on the basis of plaintiff’s evidence on record.

Question: (2004)

after plaintiff in an ordinary civil action before the zz rtc has completed
presentation of his evidence, defendant without prior leave of court moved for dismissal
of plaintiff’s complaint for insufficiency of plaintiff’s evidence. After due hearing of the
motion and the opposition thereto, the court issued an order, reading as follows: “the
court hereby grants defendant’s motion to dismiss and accordingly orders the dismissal
of plaintiff’s complaint, with the costs taxed against him. It is so ordered.”

is the order of dismissal valid? May plaintiff properly take an appeal? Reason.

Suggested answer:

the order or decision is void because it does not state findings of fact and of law,
as required by sec. 14, art. Viii of the constitution and sec. 1, rule 36 of the rules of
court. Being void, appeal is not available. The proper remedy is certiorari under rule 65.

Alternative answer:

either certiorari or ordinary appeal may be resorted to on the ground that the
judgment is void. Appeal, in fact, may be the more expedient remedy.

Alternative answer:

yes. The order of dismissal for insufficiency of the plaintiff’s evidence is valid
upon defendant’s motion to dismiss even without prior leave of court (sec. 1 of rule 33).
Yes, plaintiff may properly take an appeal because the dismissal of the complaint is a
final and appealable order. However, if the order of dismissal is reversed on appeal, the
plaintiff is deemed to have waived his right to present evidence (id.).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Question: (2003)
compare the effects of a denial of demurrer to evidence in a civil case with those
of a denial of demurrer to evidence in a criminal case.

Suggested answer:

in a civil case, the defendant has the right to file a demurrer to evidence without
leave of court. If his demurrer is denied, he has the right to present evidence. If his
demurrer is granted and on appeal by the plaintiff, the appellate court reverses the order
and renders judgment for the plaintiff, the defendant loses his right to present evidence.
(rule 33).
in a criminal case, the accused has to obtain a leave of court to file a demurrer to
evidence. If he obtains leave of court and his demurrer to evidence is denied, he has
the right to present evidence in his defense. If his demurrer to evidence is granted, he is
acquitted and the prosecution cannot appeal.
if the accused does not obtain leave of court and his demurrer to evidence is
denied, he waives his right to present evidence and the case is decided on the basis of
the evidence of the prosecution.
the court may also dismiss the action on the ground of insufficiency of the
evidence on its own initiative after giving the prosecution the opportunity to be heard.
(sec 23 of rule 119).

Question: (2003)
In an action for violation of batas pambansa blg. 22, the court granted the
accused’s demurrer to evidence which he filed without leave of court. Although he was
acquitted of the crime charged, he, however, was required by the court to pay the
private complainant the face value of the check. The accused file a motion for
reconsideration regarding the order to pay the face value of the check on the following
grounds:

1. The demurrer to evidence applied only to the criminal aspect of the case; and
2. At the very least, he was entitled to adduce controverting evidence on the civil
liability.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

resolve the motion for reconsideration.

Suggested answer:

A. The motion for reconsideration should be denied. The ground that the demurrer
to evidence applied only to the criminal aspect of the case was not correct
because the criminal action for violation of batas pambansa blg. 22 included the
corresponding civil action. (sec. 1 (b) of rile 111).
B. The accused was not entitled to adduce controverting evidence on the civil
liability, because he filed his demurrer to evidence without leave of court. (sec. 23
of rule 119).

QUESTION(2001):

Carlos filed a complaint against Pedro in the Regional Trial Court of Ozamis City for the
recovery of the ownership of a car. Pedro filed his answer within the reglementary
period. After the pre-tial and actual trial, and after Carlos has completed the
presentation of his evidence, Pedro moved for the dismissal of the complaint on the
ground that under the facts proven and the law applicable to the case, Carlos is not
entitled to the ownership of the car. The Regional Trial Court granted the motion for
dismissal. Carlos appealed the order of dismissal and the appellate court reversed the
order of the trial court. Thereafter, Pedro filed a motion with the Regional Trial Court
asking the latter to allow him to present his evidence. Carlos objected to the
presentation of evidence by Pedro.

Should the Regional Trial Court grant Pedro’s motion to present his evidence?
Why?

SUGGESTED ANSWER:

No. Pedro’s motion should be denied. He can no longer present

evidence. The Rules provide that if the motion for dismissal is granted by the trial
court but on appeal the order of dismissal is reversed, he shall be deemed to
have waived the right to present evidence. (Sec. 1 of Rule 33, 1997 Rules of Civil
Procedure)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

QUESTION(2000):
Carlos filed a complaint against Pedro in RTC of Ozamis City for the recovery of the
ownership of a car. Pedro filed his answer within the reglamentary period. After the pre-
trial and actual trial, and after Carlos has completed the presentation of his evidence,
Pedro moved for the dismissal of the complaint on the ground that under the facts
proven and the law applicable to the case, Carlos is not entitled to the ownership of the
car. The RTC granted the motion for dismissal. Carlos appealed the order of dismissal
and the appellate court reversed the order of the trial court. Thereafter, Pedro filed a
motion with the RTC asking the latter to allow him to present his evidence. Carlos
objected to the presentation of evidence by Pedro.

Should the RTC grant Pedro’s motion to present his evidence? Why?

SUGGESTED ANSWER:

No. Pedro’s motion should be denied. He can no longer present evidence.

The Rules provide that if the motion for dismissal is granted by the trial court but
on the appeal the order of dismissal is reversed, he shall be deemed to have
waived the right to present evidence. (Sec. 1 Rule 33, 1197 Rules of Civil
Procedure)

ALTERNATIVE ANSWER:

No, because when the appellate court reversed the order of the trial court
tit should have rendered judgment in favor of Carlos. (Quebral v CA, 252 SCRA
353, 1996)

ALTERNATIVE ANSWER:

No, because when the appellate court reversed the order of the trial
court it should have rendered judgment in favour of Carlos. (Quebral v. Court of
Appeals, 252 SCRA 353, 1996)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

1. Is the failure to file a motion for reconsideration in the lower court as a condition
precedent for the granting of the writ of certiorari or prohibition always fatal?
Explain. (1996)
Answer:
1) no. Because there are exceptions, such as the following:
A) the question dior-1st/lion was squarely raised before and decided by the
respondent court.
B) public interest is involved
C) case of urgency
D) order is patent nullity el issue is purely of law
Deprivation of right to due process (cochingyan us. Ciortbel, 76 scra 361; patea us. Pal.
I i i scra 215)

2. a was charged with the crime of kidnapping with murder. Affter the prosecution
rested its case, a filed a demurrer to
3. Evidence on ground of insufficiency of evidence to sustain his conviction. The
prosecution flied an opposi¬tion. The trial court dented the demurrer and the
motion for reconsideration thereafter filed. A (lied a petition for certio¬rari with thi
court of appeals alleging that the denial of the demurrer to evidence. When there
is no evidence against him, constitutes grave abuse of discretion, and prayed
that the court of appeals render judgment acquitting him.
May the trial court's denial of the demurrer to evidence be properly assailed by a petition
for certiorari in the court of appeals? Explain.
Answer:
The question does not state that a bad obtained prior leave of court to file a demurrer to
evidence. Without such leave of court, ahas waiver' his right to present evidence and
has submitted the case for judgment on the basis of the evidence for the prosecution.
(sec. 15 of rule 119)
Alternative answer:
No. Because the question of sufficiency of evidence to sustain a conviction may not be
raised in a petition for certiorari. The remedy of a is to present his evidence and in the
event of conviction to appeal. (joseph us. Viiialuz, 89 scra 824)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

3. A lost the cashier's check she purchased from xyz bank. Upon being notified of the
loss. Xyz bank immediately issued a *stop payment- order. Here comes b trying to
encash that same cashiers check but xyz bank refused payment.
As precautionary measure, what remedy may xyz bank avail of with respect to the
conflicting claims of a and b over the cashier's check? Explain.
Answer:
Xyz bank may file a complaint for interpleader so that the court may resolve the
conflicting claims of a and b aver the cashier's check.

Rule 34: judgment on the pleadings

Judgment on the pleadings (2018)

Spouses dondon and donna dumdum owned a residential lot in dapitan city. Doy dogan
bought said lot and took possession thereof with the promise to pay the purchase price
of php 2 million within a period of six (6) months. After receiving only php 500,000,
spouses dumdum executed the deed of absolute sale and transferred the title to doy
dogan. The balance was not paid at all. Spouses dumdum, through counsel, sent a
demand letter to doy dogan for him to pay the balance of php 1.5 million plus interest of
php150,000. Doy dogan responded in a letter by saying that "while the remaining
balance is admitted, the interest charged is excessive." there being no payment,
spouses dumdum filed with the rtc of dapitan city a complaint for reconveyance with
damages against doy dogan.
In his answer, doy dogan raised, by way of affirmative defense, that the purchase price
had been fully paid and for this reason the complaint should have been dismissed.
Spouses dumdum then filed a motion for judgment on the pleadings which was granted
by the rtc of dapitan city. The court awarded php1 .5 million actual damages
representing the balance of the purchase price, php 200,000 as moral damages, php
200,000 as exemplary damages, php 90,000 as interest, php 50,000 as attorney's fees,
and php 5,000 as cost of suit.
Was it proper for the rtc of dapitan city to grant the motion for judgment on the
pleadings? (2.5%)
Suggested answer:
In a proper case for judgment on the pleadings,there is no ostensible issue at all
because of the failure of the defending party’s answer to raise an issue. Thus, if an
answer does in fact specifically deny the material averments of the complaint and/or
asserts affirmative defenses (allegations of new matter which, while admitting the
material allegations of the complaint expressly or impliedly, would nevertheless prevent
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

or bar recovery by the plaintiff),a judgment on the pleadings would naturally be

improper. (adolfo vs.adolfo, 753 scra 580, 18 march 2015)
Judgement on the pleadings (2016)
Royal bank (royal) filed a complaint for a sum of money against ervin and jude before
the rtc of manila. The initiatory pleading averred that on february 14, 2010, ervin
obtained a loan from royal in the amount of p1 million, as evidenced by promissory note
no.’007 (pn) signed by ervin. Judé signed a surety agreement binding herself as surety
for the loan. Royal made a final demand on february 14, 2015 for ervin and jude
(defendants) to pay, but the latter failed to pay. Royal prayed that defendants ervini and
jude be ordered to pay the amount of p1 million plus interests. In their answer, ervin
admitted that he obtained the loan from royal and signed the pn. Jude also admitted that
she signed the surety agreement. Defendants pointed out that the pn did not provide the
due date for payment, and that the loan has not yet matured as the maturity date was
left blank to be agreed upon by the parties at a later date. Defendants filed a motion for
a judgment on the pleadings on the ground that there is no genuine issue presented by
the parties’ submissions. Royal opposed the motion on the ground that the pn’s maturity
is an issue that must be threshold out during trial.
(a) resolve the motion with reasons. (2.5%)
(b) distinguish “summary judgment” and “judgment on the pleadings.” (2.5%)
Suggested answers
(a) the motion for judgment on the pleadings should be denied.
First, judgment on the pleadings is available to the plaintiff and not to the defendant.
Second, judgment on the pleadings. Is proper only when the answer fails to tender any
issue, that is, if it does not deny the material allegations in the complaint or admits said
material allegations of the adverse party’s pleadings by admitting the truthfulness
thereof and/ or omitting to deal with them at all. Here, while defendants’ answer to the
complaint practically admitted all the material allegations therein, it nevertheless asserts
the affirmative defenses that the loan is not yet due. As issues obviously arise from
these affirmative defenses, a judgment on the pleadings is clearly improper in this case.
Besides, it should be emphasized that judgment on the pleadings is based exclusively
upon the allegations appearing in the pleadings of the parties and the annexes, if any,
without consideration of any : evidence aliunde. Henceforth, when it appears that not all
the material allegations of the complaint were admitted in the answer for some of them
were either denied or disputed, and the defendant has set up certain special defenses
which, if proven, would have the effect of nullifying plaintiff’s main cause of action,
judgment on the pleadings cannot be rendered (philippine national bank v. Mereto
b. Aznar, g.r. No. 171805, may 30, 2011).
(b) what distinguishes a judgment on the pleadings from a summary judgment is the
presence of issues in the answer to the complaint. When the answer fails to tender any
issue, that is, if it does not deny the material allegations in the complaint or admits said
material allegations of the adverse party’s pleadings by admitting the truthfulness
thereof and/or omitting to deal with them at all, a judgment on the pleadings is
appropriate. On the other hand, when the – answer specifically denies the material
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

averments of the complaint or asserts affirmative defenses, or in other words raises an

issue, a summary judgment is proper provided that the issue raised is not genuine.
A genuine issue means an issue of fact which calls for the presentation of evidence, as
distinguished from an issue which is fictitious or contrived or which does not constitute a
genuine issue for trial (eugenio basbas v. Beata sayson and roberto sayson, jr., g.r. No.
172660, august 24, 2011).

Judgment on the pleadings (2015)

Plaintiff sued defendant for collection of p1 million based on the la promissory note. The
complaint alleges, among others:
1) defendant borrowed p1 million from plaintiff as evidenced by a duly executed
promissory note;

2) the promissory note reads:

“makati, philippines dec. 30, 2014
For value received from plaintiff, defendant ‘promises to pay plaintiff p1 million, twelve
(12) months from the above indicated date without necessity of demand.
Signed defendant
A copy of the promissory note is attached as annex “a.”

Defendant, in his verified answer, alleged among others:
1) defendant specifically denies the allegation in paragraphs 1 and 2 of the complaint,
the truth being defendant did not execute any promissory note in favor of plaintiff, or 2)
defendant has paid 1 million claimed in the promissory note (annex
“a” of the complaint) as evidenced by an “acknowledgment receipt” duly executed by
plaintiff on january 30, 2015 in manila with his spouse signing as witness.

A copy of the “acknowledgment receipt” is attached as annex “1” hereof
Plaintiff filed a motion for judgment on the pleadings on the ground that defendant’s
answer failed to tender an issue as the allegations therein on his defenses are sham for
being inconsistent; hence, no defense at all, defendant filed an opposition claiming his
answer tendered an issue.
(a) is judgment on the pleadings proper? (3%)
Defendant filed a motion for summary judgment on the ground that there are no longer
any triable genuine issues of facts.
(b) should the court grant defendant’s motion for summary judgment?(3%)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer
(a) no, the judgment on the pleadings is not proper. Judgment on the pleadings is
proper only when the answer fails to tender an issue, or otherwise admits the material
allegation of the adverse party’s pleading (section 1, rule 34, rules of court). When it
appears, however, that not all the material allegations of the complaint were admitted in
the answer, because some of them were either denied or disputed, and the defendant
has set up certain special defenses which, it proven, would have the effect of nullifying
plaintiff’s main cause of action, judgment on the pleadings cannot be rendered
(philippine national bank v. Aznar, g.r. No.171805, may 30. 2011).
Clearly, since the defendant’s verified answer specifically denied the execution of the
promissory note, or raised the affirmative of payment, judgment on the pleadings is not
proper.
(b) no, the court should not grant the motion for summary judgment because the
defense of payment is a genuine issue as to a material fact that must be resolved by the
court upon presentation of evidence. For a summary judgment to be proper, the movant
must establish two requisites: (a) there must be no genuine issue as to any material
fact, except for the amount of damages, and (b) the party presenting the motion for
summary judgment must be entitled to a judgment as a matter of law. A genuine issue
is an issue of fact which requires the presentation of evidence as distinguished from an
issue which is a sham, fictitious, contrived or a false claim. Relative thereto, when the
facts pleaded by the parties are disputed or contested, proceedings for a summary
judgment cannot take the place of a trial. The evidence on record must be viewed in
light most favorable to the party opposing the motion who must be given the benefit of
all favorable inferences as can reasonably be drawn from the evidence (smart
communications v. Aldecoa, g.r. No. 166330, september 11, 2013).

2012

Judgment; judgment on the pleadings

Plaintiff files a request for admission and serves the same on defendant who fails, within
the time prescribed by the rules, to answer the request. Suppose the request for
admission asked for the admission of the entire material allegations stated in the
complaint, what should plaintiff do? (2012)

Suggested answer:

Yes, counsel b may ask the judge to specify the ground/s relied upon for sustaining the
objections and thereafter move its reconsideration thereof (rules 132, sec. 38, rules of
court).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The plaintiff should file a motion for judgment on the pleadings because the failure of
the defendant to answer a request for admission results to an implied admission of all
the matters which an admission is requested. Hence, a motion for judgment on the
pleadings is the appropriate remedy where the defendant is deemed to have admitted
the matters contained in the request for admission by the plaintiff (rule 34 in connection
with sec. 2, rule 26, rules of court).

Judgment; judgment on the pleadings

Modesto sued ernesto for a sum of money, claiming that the latter owed him p 1
-million, evidenced by a promissory note, quoted and attached to the complaint. In his
answer with counterclaim, ernesto alleged that modesto coerced him into signing the
promissory note, but that it is modesto who really owes him p1.5-million. Modesto filed
an answer to ernesto's counterclaim admitting that he owed ernesto, but only in the
amount of p0.5-inillion. At the pretrial, modesto marked and identified ernesto's
promissory note. He also marked and identified receipts covering payments he made to
ernesto, to the extent of p0.5-million, which ernesto did not dispute. After pre-trial,
modesto filed a motion for judgment on the pleadings, while ernesto filed a motion for
summary judgment on his counterclaim. Resolve the two motions with reasons. (2012)

Suggested answer:

Modesto's motion for judgment on the pleadings should be denied. While it is true that
under the actionable document rule, ernesto's failure to deny under oath the promissory
note in his answer amounted to an implied admission of its genuineness and due
execution, his allegation in his answer that he was coerced into signing the promissory
note tendered an issue which should be tried. The issue of coercion is not inconsistent
with the due execution and genuineness of the instrument. Thus, ernesto's failure to
deny the genuineness of the promissory note cannot be considered a waiver to raise
the issue that he was coerced in signing the same. Said claim of coercion may also be
proved as an exception to the parol evidence rule.

On the other hand, ernesto's motion for summary judgment may be granted. Modesto's
answer to ernesto's counterclaim — that he owed the latter a sum less than what was
claimed — amounted to an admission of a material fact and if the amount thereof could
summarily be proved by affidavits, deposition, etc., without the need of going to trial,
then no genuine issue of fact exists.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Alternative answer:

Modesto's motion for judgment on the pleadings should be denied because there is an
issue of fact. While ernesto did not specifically deny under oath the promissory note
attached to modesto's complaint as an actionable document, such non-denial will not
bar ernesto's evidence that modesto coerced him into signing the promissory note. Lack
of consideration, as a defense, does not relate to the genuineness and due execution of
the promissory note.

Likewise, ernesto's motion for summary judgment should be denied because there is an
issue of fact — the alleged coercion — raised by ernesto which he has yet to prove in a
trial on its merits. It is axiomatic that summary judgment is not proper or valid when
there is an issue of fact remaining which requires a hearing. And this is so with respect
to the coercion alleged by ernesto as his defense, since coercion is not capable of being
established by documentary evidence.

Question: (2005)

In a complaint for recovery of real property, the plaintiff averred, among others,
that he is the owner of the said property by virtue of a deed of sale executed by the
defendant in his favor. Copy of the deed of sale was appended to the complaint as
annex "a" thereof.

in his unverified answer, the defendant denied the allegation concerning the sale
of the property in question, as well as the appended deed of sale, for lack of knowledge
or information sufficient to form a belief as to the truth thereof.

is it proper for the court to render judgment without trial? Explain.

Suggested answer:

Defendant cannot deny the sale of the property for lack of knowledge or
information sufficient to form a belief as to the truth thereof. The answer, being
defective, amounts to an admission. The defendant must aver or state positively how it
is that he is ignorant of the facts alleged. (phil, advertising counselors, inc. V. Revilla, 52
scra 246 [1973]; sec. 10, rule 8, 1997 rules of civil procedure). Moreover, the
genuineness and due execution of the deed of sale can only be denied by the
defendant under oath and failure to do so is also an admission of the deed. (sec. 8, rule
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

8, 1997 rules of civil procedure) hence, a judgment on the pleadings can be rendered by
the court without need of a trial. (gutierrez v court of appeals, 74 scra 127 [1976]).
Question 7 (1996)
3) a’s motion for summary judgment was granted by the rtc but reversed by
the ca on the ground that a made no effort to adduce testimonial evidence in addition to
his affidavits to prove absence of any genuine issue to any material fact.
Is the decision of the ca correct? Explain.
No, because testimonial evidence is not required to prove the absence of
any genuine issue as to any material fact. This is shown by the pleadings,
depositions and admissions together with the affidavits. (section 3, rule 34).
Question no. I (1993)

In an action for recovery of a sum of money, the plaintiff averred in the complaint
that 'on january 15. 1990. The defendant obtained a loan from the plaintiff in the
sum of p100.000.00 which he promised to pay to the latter on or before july 15. 1990
plus interest thereon at the rate of 1846 per annum from january 15. 1990 untilfully paid"
and that -the aforesaid loan has long been overdue but. Despite repeated demands.
The defendant failed and refused. And still falls and refuses to pay to the plaintiff the
aforesaid sum of p100.000.00 and the accrued interest?

Answering the complaint, the defendant denied the aforequoted averments and
gave the reason for the denial his lack of knowledge or information sufficient to form a
belief as to the truth of said averments.
What is the effect of such denial? With such form of denial, what course of
action may be availed of by the plaintiff? Explain.

Answer:

The denial of the averments of the complaint claiming lack of knowledge or

information sufficient to loan a belief as to the truth of said averments is not a
sufficient specific dental. The allegation in the complaint, that the defendant obtained
a loan from the plaintiff and failed and refused to pay the same, is so plainly and
necessarily within the defendant's knowledge that his claim of ignorance must be
palpably not true. (warner barnes us. Reyes. 103 phil. 602)
Since the answer tenders no issue or otherwise admits the material allegations of
the complaint. The plaintiff may properly file a motion for judgment on the pleadings.
(rule 19: manufacturers bank a. Trusl co. Us. Diversified indus-wes, (na, 173 scra 357)

41. What do you understand by a summary judgment? How is it distinguished from a

judgment on the pleadings?(1989)

Suggested answer:

A summary judgment is one rendered by a court without a trial on motion of

either a claimant or a defending party, with at least 10 days notice before the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

time specified for hearing, when the pleadings, supporting affidavits made on
personal knowledge which are not rebutted by opposing affidavits, depositors or
admissions, show that, except as to the amount of damages, there is no genuine
issues to any material fact and that the moving party is entitled to a judgment as
a matter of law.

It is distinguished from a judgment on the pleadings in that the latter is based on

the pleadings alone. A judgment on the pleading may be rendered when the
answer to the complaint, counterclaim, cross-claim or third-party complaint fails
to tender an issue or otherwise admits the material allegations of the adverse
party’s pleading. ( rules 19 and 34)

Rule 35: summary judgments

Summary judgment (2016)
Royal bank (royal) filed a complaint for a sum of money against ervin and jude before
the rtc of manila. The initiatory pleading averred that on february 14, 2010, ervin
obtained a loan from royal in the amount of p1 million, as evidenced by promissory note
no.’007 (pn) signed by ervin. Judé signed a surety agreement binding herself as surety
for the loan. Royal made a final demand on february 14, 2015 for ervin and jude
(defendants) to pay, but the latter failed to pay. Royal prayed that defendants ervini and
jude be ordered to pay the amount of p1 million plus interests. In their answer, ervin
admitted that he obtained the loan from royal and signed the pn. Jude also admitted that
she signed the surety agreement. Defendants pointed out that the pn did not provide the
due date for payment, and that the loan has not yet matured as the maturity date was
left blank to be agreed upon by the parties at a later date. Defendants filed a motion for
a judgment on the pleadings on the ground that there is no genuine issue presented by
the parties’ submissions. Royal opposed the motion on the ground that the pn’s maturity
is an issue that must be threshold out during trial.
(a) resolve the motion with reasons. (2.5%)
(b) distinguish “summary judgment” and “judgment on the pleadings.” (2.5%)
Suggested answers
(a) the motion for judgment on the pleadings should be denied.
First, judgment on the pleadings is available to the plaintiff and not to the defendant.
Second, judgment on the pleadings. Is proper only when the answer fails to tender any
issue, that is, if it does not deny the material allegations in the complaint or admits said
material allegations of the adverse party’s pleadings by admitting the truthfulness
thereof and/ or omitting to deal with them at all. Here, while defendants’ answer to the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

complaint practically admitted all the material allegations therein, it nevertheless asserts
the affirmative defenses that the loan is not yet due. As issues obviously arise from
these affirmative defenses, a judgment on the pleadings is clearly improper in this case.
Besides, it should be emphasized that judgment on the pleadings is based exclusively
upon the allegations appearing in the pleadings of the parties and the annexes, if any,
without consideration of any : evidence aliunde. Henceforth, when it appears that not all
the material allegations of the complaint were admitted in the answer for some of them
were either denied or disputed, and the defendant has set up certain special defenses
which, if proven, would have the effect of nullifying plaintiff’s main cause of action,
judgment on the pleadings cannot be rendered (philippine national bank v. Mereto
b. Aznar, g.r. No. 171805, may 30, 2011).
(b) what distinguishes a judgment on the pleadings from a summary judgment is the
presence of issues in the answer to the complaint. When the answer fails to tender any
issue, that is, if it does not deny the material allegations in the complaint or admits said
material allegations of the adverse party’s pleadings by admitting the truthfulness
thereof and/or omitting to deal with them at all, a judgment on the pleadings is
appropriate. On the other hand, when the – answer specifically denies the material
averments of the complaint or asserts affirmative defenses, or in other words raises an
issue, a summary judgment is proper provided that the issue raised is not genuine.
A genuine issue means an issue of fact which calls for the presentation of evidence, as
distinguished from an issue which is fictitious or contrived or which does not constitute a
genuine issue for trial (eugenio basbas v. Beata sayson and roberto sayson, jr., g.r. No.
172660, august 24, 2011).

1. What do you understand by a summary judgment? How is it distinguished from a

judgment on the pleadings? (1989)

Suggested answer:

A summary judgment is one rendered by a court without a trial on motion of

either a claimant or a defending party, with at least 10 days notice before the
time specified for hearing, when the pleadings, supporting affidavits made on
personal knowledge which are not rebutted by opposing affidavits, depositors or
admissions, show that, except as to the amount of damages, there is no genuine
issues to any material fact and that the moving party is entitled to a judgment as
a matter of law.
It is distinguished from a judgment on the pleadings in that the latter is based on
the pleadings alone. A judgment on the pleading may be rendered when the
answer to the complaint, counterclaim, cross-claim or third-party complaint fails
to tender an issue or otherwise admits the material allegations of the adverse
party’s pleading. ( rules 19 and 34)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

2. Before any answer on motion for summary judgment could be filed by the
defendant, the plaintiff filed notice of dismissal of his complaint. The trial court
simply noted the dismissal. Is case considered dismissed? (1989)

Suggested answer:

Yes, because the rule merely requires the filing of a notice of dismissal and does
not require an order of the court dismissing the case. (sec.1 of rule 17)

RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

2009

Judgment; execution; judgment obligor’s death

Cresencio sued dioscoro for collection of a sum of money. During the trial, but after the
presentation of plaintiff's evidence, dioscoro died. Atty. Cruz, dioscoro's counsel, then
filed a motion to dismiss the action on the ground of his client's death. The court denied
the motion to dismiss and, instead, directed counsel to furnish the court with the names
anti addresses of dioscoro's heirs and ordered that the designated administrator of
dioscoro's estate be substituted as representative party.

After trial, the court rendered judgment in favor of cresencio. When the decision had
become final and executory, cresencio moved for the issuance of a writ of execution
against dioscoro's estate to enforce his judgment claim. The court issued the writ of
execution. Was the court's issuance of the writ of execution proper? Explain. (2009)

Suggested answer:

no, the trial court's issuing the writ of execution is not proper and in excess of
jurisdiction, since the judgment obligor is already dead when the writ was issued. The
judgment for money may only be enforced against the estate of the deceased defendant
in the probate proceedings, by way of a claim filed with the probate court in accordance
with rule 86 of the rules of court. Cresencio should enforce that judgment in his favor in
the settlement proceedings of the estate of dioscoro as a money claim in accordance
with rule 86 or rule 88 as the case may be.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Judgment; execution; stay

Mike was renting an apartment unit in the building owned by jonathan. When mike failed
to pay six months' rent, jonathan filed an ejectment suit. The municipal trial court (mtc)
rendered judgment in favor of jonathan, who then filed a motion for the issuance of a
writ of execution. The mtc issued the writ.

How can mike stay the execution of the mtc judgment? Explain. (2009)

Suggested answer:

Execution shall issue immediately upon motion, unless mike (a) perfects his appeal to
the rtc, (b) files a sufficient supersedeas bond to pay the rents, damages and costs
accruing up to the time of the judgment appealed from, and (c) deposits monthly with
the rtc during the pendency of the appeal the amount of rent due from time to time (rule
70, sec. 19).

Mike appealed to the regional trial court (rtc), which affirmed the mtc decision. Mike then
filed a petition for review with the court of appeals (ca). The ca dismissed the petition on
the ground that the sheriff had already executed the mtc decision and had ejected mike
from the premises, thus rendering the appeal moot and academic. Is the ca correct?
Reasons. (2009)

Suggested answer:

No, the court of appeals is not correct. The dismissal of the appeal is wrong, because
the execution of the rtc judgment is only in respect of the eviction of the defendant from
the leased premises. Such execution pending appeal has no effect on the merits of the
ejectment suit which still has to be resolved in the pending appeal. Rule 70, sec. 21 of
the rules provides that the rtc judgment against the defendant shall be immediately
executory, "without prejudice to a further appeal” that may be taken therefrom (uy v.
Santiago, 336 scra 680 [2000]).

2008

Judgment; execution; successors in interest

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Half-brothers roscoe and salvio inherited from their father a vast tract of unregistered
land. Roscoe succeeded in gaining possession of the parcel of land in its entirety and
transferring the tax declaration thereon in his name. Roscoe sold the northern half to
bono, salvio's cousin. Upon learning of the sale, salvio asked roscoe to convey the
southern half to him. Roscoe refused as he even sold one-third of the southern half
along the west to carlo. Thereupon, salvio filed an action for the reconveyance of the
southern half against roscoe only. Carlo was not impleaded. After filing his answer,
roscoe sold the middle third of the southern half to nina. Salvio did not amend the
complaint to implead nina.

After trial, the court rendered judgment ordering roscoe to reconvey the entire southern
half to salvio. The judgment became final and executory. A writ of execution having
been issued, the sheriff required roscoe, carlo and nina to vacate the southern half and
yield possession thereof to salvio as the prevailing party. Carlo and nina refused,
contending that they are not bound by the judgment as they are not parties to the case.
Is the contention tenable? Explain fully. (2008)

Suggested answer:

yes, in case of transfer of interest pending litigation, the action may be continued
by or against the original party unless the court, upon motion, directs a person to be
substituted in the action or joined with the original party (sec. 19, rule 3, rules of court).
The owners of property over which reconveyance is asserted are indispensible parties
and must be joined in the action. Accordingly, the contention of carlo who is such party
to the action filed by salvio, is tenable. He is not bound by the judgment because he
became a co-owner of the land before the case was filed and yet he has not been
included as a party thereto (matuguina intergrated word products, inc. V. Court of
appeals, 263 scra 490 [1996]; ma. Valentina santa-cruz v. Court of appeals, et. Al., 361
scra 520 [2002]).

nina. However is a successor-in-interest of roscoe and privy to the case. Hence,

she is bound by the judgment as against roscoe although she is not a party to the case.
(sec. 19, rule 3; cabresos v. Tero, 166 scra 400 [1998]). A judgment is conclusive
between the parties and their successors-in-interest by title subsequent to the case
(sec. 47, rule 39, rules of court).

[parenthetically, it is worth mentioning that the sale of the northern one-half of the
vast tract of land owned in common by roscoe and salvio, is void as to the northern half
but valid as to the presumed one-half undivided interest of roscoe. The existence of the
co-ownership must first be determined to exist before the right of reconveyance on the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

basis of a constructive trust may prosper. However, in the problem the judgment has
become final and executor, so the problem is centered on the remedial law aspect].

2007

Judgment; enforcement; 5yr period

A files a case against b. While awaiting decision on the case, a goes to the united states
to work. Upon her return to the philippines, seven years later, a discovers that a
decision was rendered by the court in her favor a few months after she had left. Can a
file a motion for execution of the judgment? Explain briefly. (2007)

Suggested answer:

On the assumption that the judgment had been final and executory for more than five
(5) years as of a‟s return to the philippines seven (7) years later, a motion for execution
of the judgment is no longer availing because the execution of judgment by mere motion
is allowed by the rules only within five (5) years from entry of judgment; thereafter, and
within ten (10) years from entry of judgment, an action to enforce the judgment is
required.

Judgment; foreign judgments; foreign arbitral award

(a) what are the rules on the recognition and enforcement of foreign judgments in our
courts? (2007)

Suggested answer:

Judgments of foreign courts are given recognition in our courts thus: in case of
judgment upon a specific thing, the judgment is conclusive upon the title to the thing,
unless otherwise repelled by evidence of lack of jurisdiction, want of due notice to the
party, collusion, fraud, or clear mistake of law or fact (rule 39, sec. 48 [a], rules of court);
and in case of judgment against a person, the judgment is presumptive evidence of a
right as between the parties and their successors in interest by subsequent title, unless
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

otherwise repelled by evidence on grounds above stated (rule 39, sec. 48 [b], rules of
court). However, judgments of foreign courts may only be enforced in the philippines
through an action validly heard in the regional trial court. Thus, it is actually the
judgment of the philippine court enforcing the foreign judgment that shall be executed.

1998

A. What are the grounds for judgment on the pleadings? (2%)

B. A’s Answer admits the material allegations kof B’s Complaint. May the court
motu propio render judgment on the pleadings? Explain. (2%)

C. A brought an action against her husband B for annulment of their marriage

on the ground of psychological incapacity. B filed his Answer to the
Complaint admitting all the allegations therein contained. May A move for
judgment on the pleadings? Explain. (2%)

Another Answer for c.

c. No. The court shall order the prosecutor to investigate whether or not a
collusion between the parties exists, and if there is no collusion, tko
intervene for the State in order to see to it that the evidence submitted
is not fabricated. (Sec. 3(E), Rule 9 of the 1997 Rules). Evidence must
have to be presented in accordance with the requirements set down by
the Supreme Court in Republic vs. Court of Appeals and Molinaa (268
SCRA 198).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(b) can a foreign arbitral award be enforced in the philippines under those rules?

Explain briefly. (2%)

Suggested answer:

No, a foreign arbitral award cannot be enforced in the philippines under the rules on
recognition and enforcement of foreign judgments above-stated. A foreign arbitral award
is not a foreign judgment, and pursuant to the alternative dispute resolution act of 2004
(r.a. No. 9285), in relation to 1958 new york convention on the recognition and
enforcement of foreign arbitral awards, the recognition and enforcement of the foreign
arbitral awards shall be in accordance with the rules of procedure to be promulgated by
the supreme court. At present, the supreme court is yet to promulgate rules of
procedure on the subject matter.

(c) ©how about a global injunction issued by a foreign court to prevent dissipation of
funds against a defendant therein who has assets in the philippines? Explain
briefly. (2%)

Suggested answer:

Yes, a global injunction issued by a foreign court to prevent dissipation of funds against
a defendant who has assets in the philippines may be enforced in our jurisdiction,
subject to our procedural laws. As a general rule, no sovereign is bound to give effect
within its dominion to a judgment or order of a tribunal of another country. However,
under the rules of comity, utility and convenience, nations have established a usage
among civilized states by which final judgments of foreign courts of competent
jurisdiction are reciprocally respected and rendered efficacious under certain conditions
that may vary in different countries (st. Aviation services co., pte., ltd. V. Grand
international airways, inc., 505 scra 30[2006]; asiavest merchant bankers [m] berhad v.
Court of appeals, 361 scra 489 [2001]).

42. “a” and “b” entered into a compromise to settle a dispute between them pending
in a regional trial court. Upon their joint motion, the compromise settlement was
approved in an order which also required the parties to comply faithfully with the
terms thereof. Ten days after notice of the order approving the compromise
settlement. “a” moved for amendment of the agreement and for the
corresponding order amending the previous approval on the ground that a
stipulation in the compromise settlement did not reflect the true agreement
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

between him and “b”. “b” opposed the motion on the argument that the order
approving the compromise agreement was immediately final and executory
because the appeal therefrom was not available inasmuch as approval of the
settlement was by joint motion and the order did not in any way vary the terms
thereof.
(a) If you were the trial judge, would you approve the amendment?
Explain.
(b) Suppose the judge were to grant the amendment despite your
opposition, what remedy as counsel for “b” would you invoke and in
what forum? (1987)

Rule 38 relief from judgments, orders or other proceedings

2009

Petition for relief; injunction

Having obtained favorable judgment in his suit for a sum of money against patricio,
orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff
levied upon a parcel of land that patricio owns, and a date was set for the execution
sale. (2009)

(a) How may patricio prevent the sale of the property on execution? (2%)

Suggested answer:

Patricio may file a petition for relief with preliminary injunction (rule 38), posting a bond
equivalent to the value of the property levied upon; or assail the levy as invalid if ground
exists. Patricio may also simply pay the amount required by the writ and the costs
incurred therewith.

(b) If orencio is the purchaser of the property at the execution sale, how much does
he have to pay? Explain. (2%)

Suggested answer:

Orencio, the judgment creditor should pay only the excess amount of the bid over the
amount of the judgment, if the bid exceeds the amount of the judgment.

(c) If the property is sold to a third party at the execution sale, what can patricio do to
recover the property? Explain. (2%)

Suggested answer:

Patricio can exercise his right of legal redemption within 1 year from date of registration
of the certificate of sale by paying the amount of the purchase price with interest of 1%
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

monthly, plus assessment and taxes paid by the purchaser, with interest thereon, at the
same rate.

Petition for relief; injunction

Having obtained favorable judgment in his suit for a sum of money against patricio,
orencio sought the issuance of a writ of execution. When the writ was issued, the
sheriff levied upon a parcel of land that patricio owns, and a date was set for the
execution sale. (2009)

How may patricio prevent the sale of the property on execution? (2%)

Suggested answer:

Patricio may file a petition for relief with preliminary injunction (rule 38), posting a
bond equivalent to the value of the property levied upon; or assail the levy as
invalid if ground exists. Patricio may also simply pay the amount required by the
writ and the costs incurred therewith

2007

Petition for relief

A defendant who has been declared in default can avail of a petition for relief from the
judgment subsequently rendered in the case. (2007)

Suggested answer:

False. The remedy of petition for relief from judgment is available only when the
judgment or order in question is already final and executor, i.e., no longer appealable.
As an extraordinary remedy, a petition for relief from judgment may be availed only in
exceptional cases where no other remedy is available.

Question: (2005)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Under article 1144 of the new civil code, an action upon a judgment must be
brought within 10 years from the time the right of action accrues.

Is this provision applicable to an action filed in the philippines to enforce a foreign

judgment? Explain.

Suggested answer:

Article 1144 of the civil code is applicable because it is merely an action in a

domestic court to enforce a foreign judgment. Foreign judgments should be treated in
the same manner as domestic judgments.

Alternative answer:

Article 1144 of the civil code which requires that an action upon a judgment
(though without distinction) must be brought within 10 years from the time the right of
action accrues, does not apply to an action filed in the philippines to enforce a foreign
judgment. While we can say that where the law does not distinguish, we should not
distinguish, still the law does not evidently contemplate the inclusion of foreign
judgments. A domestic judgment may be enforced by motion within five years and by
action within the next five years. This is not the case with respect to foreign judgments
which cannot be enforced by mere motion. A foreign judgment, in fact, is merely
presumptive evidence of a right between the parties and their successors in interests.
(van dorn v romillo, jr., 139 scra 139 [1985]). The word “judgment” refers to one
mentioned in section 1, rule 36, which is filed with the clerk of court. If no period is fixed
in our law, the period of prescription is five (5) years under art. 1149 of the civil code.

Question: (2004)

after defendant has served and filed his answer to plaintiff’s complaint for
damages before the proper regional trial court, plaintiff filed and served a motion (with
supporting affidavit) for a summary judgment in his favor upon all of his claims.
Defendant served and filed his opposition (with supporting affidavit) to the motion. After
due hearing, the court issued an order (1) stating that the court has found no genuine
issue as to any material fact and thus concluded that plaintiff is entitled to judgment in
his favor as a matter of law except as to the amount of damages recoverable, and (2)
accordingly ordering that plaintiff shall have judgment summarily against defendant for
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

such amount as may be found due plaintiff for damages to be ascertained by trial on
october 7, 2004, at 8:30 o’clock in the morning.

may defendant properly take an appeal from said order? Or, may defendant
properly challenge said order thru a special civil action for certiorari? Reason.

Suggested answer:

no, plaintiff may not properly take an appeal from said order because it is an
interlocutory order, not a final and appealable order (sec 4 of rule 35). It does not
dispose of the action or proceeding (sec. 1 of rule 39). Partial summary judgments are
interlocutory. There is still something to be done, which is the trial for the adjudication of
damages (province of pangasinan v. Court of appeals, 220 scra 726 [1993]; guevarra v.
Court of appeals, 209 phil. 241 [1983]), but the defendant may properly challenge said
order through a special civil action for certiorari.

Question: (2004)

After plaintiff in an ordinary civil action before the zz rtc has completed
presentation of his evidence, defendant without prior leave of court moved for dismissal
of plaintiff’s complaint for insufficiency of plaintiff’s evidence. After due hearing of the
motion and the opposition thereto, the court issued an order, reading as follows: “the
court hereby grants defendant’s motion to dismiss and accordingly orders the dismissal
of plaintiff’s complaint, with the costs taxed against him. It is so ordered.”

Is the order of dismissal valid? May plaintiff properly take an appeal? Reason.

Suggested answer:

The order or decision is void because it does not state findings of fact and of law,
as required by sec. 14, art. Viii of the constitution and sec. 1, rule 36 of the rules of
court. Being void, appeal is not available. The proper remedy is certiorari under rule 65.

Alternative answer:

Either certiorari or ordinary appeal may be resorted to on the ground that the
judgment is void. Appeal, in fact, may be the more expedient remedy.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Alternative answer:

Yes. The order of dismissal for insufficiency of the plaintiff’s evidence is valid
upon defendant’s motion to dismiss even without prior leave of court (sec. 1 of rule 33).
Yes, plaintiff may properly take an appeal because the dismissal of the complaint is a
final and appealable order. However, if the order of dismissal is reversed on appeal, the
plaintiff is deemed to have waived his right to present evidence (id.).

Question: (2003)

In rendering a decision, should a court take into consideration the possible effect
of its verdict upon political stability and economic welfare of the nation? (4%)

Suggested answer:

no. Because a court is required to take into consideration only the legal issues
and the evidence admitted in the case. The political stability and economic welfare of
the nation area extraneous to the case. They can have persuasive influence but they
are not the main factors that should be considered in deciding a case. A decision should
be based on the law, rules of procedure, justice and equity. However, in exceptional
cases the court may consider the political stability and economic welfare of the nation
when these are capable of being taken into judicial notice of and are relevant to the
case.

Question (2002)

A. May an order denying the probate of a will still be overturned after the period to
appeal therefrom has lapsed? Why? (3%)
B. What should the court do if, in the course of intestate proceedings, a will is found
and it is submitted for probate? Explain.

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

A. Yes, an order denying the probate of a will may be overturned after the period to
appeal therefrom has lapsed. A petition for relief may be filed on the grounds of
fraud, accident, mistake or excusable negligence within a period of sixty (60)
days after the petitioner learns of the judgment or final order and not more than
six (6) months after such judgment or final order was entered [ rule 38, secs.
1and 3; soriano vs asi, 100 phil.785 (1957)]. An action for annulment may also be
filed on the ground of extrinsic fraud within four (4) years from its discovery, and
if based on lack of jurisdiction, before it is barred by laches or estoppel. ( rule 47,
secs. 2 and 3)

B. If a will is found in the course of intestate proceedings and it is submitted for

probate, the intestate proceedings will be suspended until the will is probated.
Upon the probate of the will, the intestate proceedings will be terminated. (rule
82,sec. 1).
C. Question no. 12 (1993)
D. A decision adverse to defendant was rendered by the trial court in an action for
recovery of possession of a piece of land. Defendant wanted to appeal the decision but
his lawyer begged off from rendering further professional services. Within the
period of appeal, however, defendant came to know a man who introduced himself
as atty. Manuel palma and volunteered to handle his case.
E. Thereafter, defendant engaged the services of "atty. Palma' and paid him the
professional fee for the handling of his appeal. Immediately. "atty. Palma' filed a
notice of appeal. In due course, the court of appeals sent a notice to"atty. Palma"
giving him forty-live days within which to file the appellant's brief for defendant.
However. The 45-day period expired without the appellant's brief being filed.
F. Directed to show cause why the appeal should not be dismissed for failure to (lie the
appellants brief within the reglementary period. "atty. Palma took no action. Conse-
quently, the court of appeals dismissed defendants appeal.
G. Only after the court of appeals' resolution dismissing the appeal had already
become final and executory did defendant learn of such dismissal.
H. Subsequent investigation made by a friend of defendant disclosed that 'atty. Palma'
is not a lawyer. Accordingly defendant asked the court of appeals to nullify its
resolution dismissing his appeal. Lie asserted that his representation by a fake
lawyer amounted to deprivation of the right to appeal and, hence, a denial of due
process.
I. On the other hand, the adverse party (plaintiff in the reconveyance suit) contended
that the resolution dismissing the appeal can no longer be set aside as it had long
become final and executory. And that defendant had lost his right to appeal due to the
negligence of his lawyer (referring to 'atty. Palma') for which he must suffer the
consequence.
J. Should defendant's plea for nullification of the dismissal of the appeal be
granted? Why?
K. Answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

L. Yes, because defendant had not been accorded due process of law when he lost
his right to appeal due to the actions of `atty. Palma- who was not a lawyer. While a
client is generally bound by the action of his counsel, even by the attorney's mistake
or negligence, this rule will not apply where the lawyer turned out to be fake. Ire/an
us. Court qj appeals. 202 scra 534)

M. Question no. 6 (1993)

N. X sued 'y for breach of contract with damages. After y filed his answer, the
parties amicably settled. The court rendered judgment based on said
compromise. Within the period to perfect the appeal. Y ned a motion for new trial
under rule 37 alleging vitiation of his consent dire to mistake and prayed that the
agreement be set aside.
O. Resolve the motion.
P. A judgment by compromise is not appealable. Hence a motion for new trial is not
proper. Y should file a motion to set aside the agreement on the ground of
mistake. (reyes us. Ugarte. 75 phil. 5051. Or he could file a petition for relief
under rule 38 of the rules of court or file a new action

43. A money judgment against ernesto golem in favor of geraldine bolos was
rendered by the regional trial court of biñan, laguna. The decision was received
by atty. Jose maco, counsel for golem, on march 4, 1990. Atty. Maco did not
inform golem about the judgment. On march 10, 1990, atty maco migrated with
his entire family to california, u.s.a. Entry of judgment was made on march 20,
1990. Golem learned of the decision only on june 17, 1990 when the court sheriff
arrived at his residence to levy on his properties. You are consulted by golem on
july 31, 1990.
Assuming golem has a meritorious case, what legal remedies may you avail of in
order to protect his interests? Explain your answer. (1990)

Suggested answer:

I will file a petition for relief from judgment with the regional trial court of biñan,
laguna. Such a petition should be filed within 60 days after the petitioner learns of
the judgment and not more than 6 months after its entry. (sec. 3 of rule 38).
Since the entry of judgment was made on march 20, 1990, the period of 6
months had not yet expired on july 31, 1990 when i was consulted by golem.
While the period of 60 days is ordinarily counted from notice to the lawyer, this
case may be an exception because of the gross irresponsibility of atty. Maco who
did not inform golem about the judgment and migrated to california. Hence, the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

said period should be counted from july 17, 1990 when golem actually learned of
the judgment. (phhc v. Tiangco, 12 scra 471)

Alternative answer:

Inasmuch as a petition for relief from judgment is no longer available because of

the lapse of the period of 60 days counted from march 4, 1990 when the decision
was received by atty. Maco, counsel for golem, and notice to the lawyer is notice
to the client (olivares v. Leola, 97 phil 253), the only available remedy is for
golem to file an action for damages and disbarment proceedings against atty.
Maco (sanchez v. Tupas, 158 scra 459).

Rule 39 execution, satisfaction and effect of judgments

Question: (2002)

the 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 with a copy of 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 18-year old daughter, who was a college
student. For the defendant’s failure to answer the complaint within the reglementary
period, the trial court, on motion of the plaintiff, declared the defendant in default. A
month later, the trial court rendered judgment holding the defendant liable for the entire
amount prayed for in the complaint.

A. After the judgment had become final, a writ of execution was issued by the
court. As the writ was returned unsatisfied, the plaintiff filed a motion for an
order requiring the defendant to appear before it and to be examined regarding
his property and income. How should the court resolve the motion? (2%)

B. Seven years after the entry of judgment, the plaintiff filed an action for its
revival. Can the defendant successfully oppose the revival of the judgment by
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

contending that it is null and void because the rtc-manila did not acquire
jurisdiction over his person? Why? (3%)

Suggested answer:

. The rtc-manila should deny the motion because it is in violation of the rule that no
judgment obligor shall be required to appear before a court, for the purpose of
examination concerning his property and income, outside the province or city in
which such obligor resides. In this case the judgment obligor resides in bulacan.
(rule 39, sec. 36).

. Yes, because the sheriff did not exert sufficient effort to serve summons
personally on the defendant within a reasonable time and hence the rtc-manila
did not acquire jurisdiction over his person. [rule 14, secs. 6 and 7; de guzman
vs. Court of appeals, 271 scra 728 (1997)].

Alternative answer:

. No, the defendant is deemed to have waived the lack of jurisdiction over
his person because he did not raise this issue: 1.) In opposing the motion
to declare him in default; 2.) In a motion for reconsideration of or appeal from
the judgment by default; and 3) in opposing the motion requiring him to appear
and be examined regarding his property.

Question 7 (1996)

2) A brought an action for unlawful detainer against b in the municipal trial

court. H filed a motion to dismiss on the ground of lack of cause of action for failure to
first refer the dispute to the barangay lupon. Acting on b's motion, the case was
dismissed. A files a petition for certiorari with the regional trial court assailing the
municipal trial court's dismissal order on the ground that b's motion to dismiss is a
prohibited motion under the revised rules on summary procedure.
a) Is a's contention correct? Explain.
No. Because the revised rule on summary procedure allows a motion to dismiss on the
ground of failure to comply with the provision on referral to lupon. (section 19-a)
b) Is certiorari the proper remedy? Explain.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

No, because the proper remedy is appeal. Moreover, the dismissal is correct.
3) In a case for illegal detainer under the revised rules on summary
procedure, the municipal trial court rendered a decision in favor of a, the lessor,
ordering b. The lessee, to vacate a's apartment and to pay the back rentals. B appealed
to the regional trial court which affirmed the municipal trial court's decision. A,
anticipating another appeal by b. Filed a motion for execution pending appeal pursuant
to section 21 of the revised rules on summary procedure. B. Likewise within the
reglementary period, filed a petition for review of the regional trial court's decision with
the court of appeals.
a) May the regional trial court grant a's motion for execution pending appeal
after b filed his petition for review with the court of appeals? Explain.
Yes, because the decision of the rtc is immediately executory despite the
appeal. (section 21)
b) May b validly oppose the motion for execution pending appeal on the
ground that the motion is not based on the good reasons for which an
execution pending appeal may be issued under section 2, rule 39 of the
rules of court? Explain.
No, because section 2 of rule 39 is not applicable to case which falls under
summary procedure.

Question no. 5 (1995)

1. The lifetime of a writ of execution is sixty (60) days from its receipt by the officer
required to enforce it. Suppose on the 60th day of the life of the writ the sheriff levied on
the properly of the judgment debtor and sold it only a month after. Is the sale valid?
Explain.
2. A 'writ of execution was served by a sheriff upon defendant so that plaintiff may
be placed in possession of the property held by the former. The defendant refused
tovacate and surrender the premises to plaintiff. Can defendant be held for indirect
contempt for disobedience of, or resistance to a lawful writ issued by the court? Explain.
3. Suppose that by virtue of an execution of the judgment in an ejectment case
defendant was successfully ousted from the property in litigation and plaintiff was lawfully
placed in possession thereof, but seven (7) years later defendant re-entered the property
and forcibly took over possession, can plaintiff move that defendant be declared in
indirect contempt? Explain.
Answer:
1. The writ of execution may be levied at any time up to and including the last day of
the writ. After the writ has been levied on the property within the lifetime of the writ, it
may be sold thereafter. (alagar us. Pio de roda. 29 phil 129)
Alternative answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The property may even be sold beyond the five-year period within which the judgment
may be executed on motion, but not beyond the ten-year period of prescription of
judgments. (government vs. Echaus, 71 phil. 318; jo/ancient vs. Philippine national bank,
105 scra 102)
2. No. Because it is the sheriff who must enforce the writ of execution for the
delivery of property by ousting therefrom the person against whom the judgment is
rendered and placing the judgment creditor in possession. (sec. 13. Rule 39). The writ of
possession was directed to the sheriff who was to deliver the property to the plaintiff. The
writ did not command the plaintiff to do anything. Hence he could not be held guilty of
indirect contempt. (barrett vs. Arndt/. 230 scra 219)
3. Yes, because the defendant violated sec. 3(14 of rule 71) when after being ousted
from the property in litigation and the plaintiff was lawfully placed in possession. He re-
enters the property and forcibly took over possession.

Question no. 14 (1995)

Alice, a resident of valenzuela. Metro manila, filed with the metropolitan:ft-

1. Comment on rosa's contention. Explain.

2. Rosa also opposed the referral to the lupon tagapayapa of barangay 2.

Zone 3. Claiming that the venue was wrong as the proper lupon was that of barangay
1. Zone 5, where she and alice reside.

Is rosa's opposition valid? Explain.

3. Suppose that the lupon of barangay 2, zone 3. Is successful in forging an

amicable settlement between alice and rosa, is the compromise immediately
executory? Explain.

4. How, when and by whom shall the compromise agreement be enforced?

Explain.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Answer:

2. No, because the law also provides that the venue of disputes artstrig at the
workplace of the contending parties shall be brought in the barangay where such
workplace is located. (sec. 409[d])

3.No. Because any compromise settlement shall be submitted to the court which
referred the case for approval. (sec. 416)

4.Upon approval thereof. It shall have the force and effect of a judgment of the court
and shall be enforced in accordance with section 6. Rule 39.

Question no. 15 (1993)

As the decision of the regional trial court became final and executory on
november 15, 1987, plaintiff, the prevailing party, filed a motion for a writ of
execution. The writ of execution was issued on december 1, 1981.

Pursuant to the writ, the sheriff levied upon the house and lot of defendant and
scheduled the sale thereof for public auction on january 26. 1988. The auction sale
was repeat-edly postponed upon request of defendant who, in the mtantime, was
making partial payments to plaintiff.
The last scheduled auction sale was on november 3. 1992 but the same did not
materialize because of the request of the defendant which was granted by plaintiff on
account of the partial payment made by defendant on the date.
As there still remained an unpaid balance as ofjuly 15. 1993, plaintiff filed a
motion for the issuance of an alias writ of execution of that date. Defendant
opposed the motion on the ground that more than five years had lapsed from the
finality of the decision such that plaintiffs remedy is to file a new action for revival of
judgment.

Should the motion for issuance of an alias writ of execution be granted?

Explain.

Answer:

Yes, because the running of the five-year period from the date the decision
became final and executory on november 15. 1987. Within which the judgment
could be executed on motion. Was interrupted or suspended by the agreement of
the parties to suspend enforcement of the judgment on account of partial payments
made by defendant. Trorralba us. Dc los angeles. 96 scra 69).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Alternative answer:

Since there was already a levy on execution, there was-no need for an alias writ of
execution.

Question no. 15 (1993)

Should the motion for issuance of an alias writ of execution be granted?

Explain.

Answer:

Yes, because the running of the five-year period from the date the decision
became final and executory on novem-ber 15. 1987. Within which the judgment
could be executed on motion. Was interrupted or suspended by the agreement of
the parties to suspend enforcement of the judgment on account of partial payments
made by defendant. Trorralba us. Dc los angeles. 96 scra 69).

Alternative answer:

Since there was already a levy on execution, there was-no need for an alias writ of
execution.

Question no. Xv (1992)

In a civil case, plaintiff filed on april 19, 1991, an ex parte motion for execution
of judgment. Upon receiving it, the presiding judge examined the record and issued
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

on the same day an order granting the motion since, as stated in his order, the
judgment is now final and executory because the sheriffs return shows that the
decision was properly served upon the defendant on april 3, 1991, and no appeal
was perfected on time." the defendant then filed a motion to set aside the order of
execution, contending that the order is void on two grounds: (1) it violates the rule on
three-day notice for motions: and (2) the date of service, april 3, 1991, entered in the
sheriffs return is a typographical error because service was actually made on april
8, 1991, so that when the court ordered execution on april 19, 1991, the decision was
not yet final and executory.
At the hearing of the motion, the defendant cited several cases on the need to
notify the adverse party before a contentious motion can be resolved. He further
argued that the sheriff’s return, being hearsay, has to be confirmed by the sheriff
on the witness stand when an entry therein is assailed. Because in that
situation the proponent of the return had the burden of proving its correctness.
This cannot be done unless the sheriff testifies in court and is correspondingly
subjected to cross-examination. The sheriff was not presented in court as a
witness.
Decide the motion to set aside the order of execution, with reasons.

Suggested answer:
Motion to set aside order of execution denied.

A motion for execution of a final and executory judgment is not a

contentious motion that requtres a three-day notice before resolution. Such a
motion may be granted ex parte. (far eastern surety & insurance co. Vs.
Hernandez. 67 scra 256)
The sheriffs return is a public document made in the performance of a duty
by a public officer,and is prima facie evidence of the facts stated therein. (sec.
23 of rule 132) hence there was no need for the sheriff to testify unless
defendant had presented evidence contradicting the sheriffs return.

44. Enforcing a writ of execution issued by the pasig regional trial court in a civil
action, the sheriff attached several pieces of machinery and equipment found in
defendant’s place of business. Antonio sadalay filed with the sheriff an affidavit of
third party’s claim stating that the attached properties belong to him, not to the
defendant.

a. Can sadalay intervene in the case and ask the pasig rtc to resolve his third-
party claim? (1991)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

b. If sadalay decides to file a separate action in the regional trial court in makati
to vindicate his claim, may he validly obtain a writ of injunction from the
makati rtc to enjoin the sale in execution of the levied properties? (1991)

Suggested answer:

a. No, sadalay may not intervene in the case because intervention is

allowed only before or during the trial of the case. In this case, there is
already a final and executory judgment. (sec. 1 of rule 12; bayer phils.
V. Agana, 63 scra 355) however, he may ask the pasig rtc to resolve
preliminarily whether the sheriff acted rightly or wrongly in levying
execution on the properties in question. (ong v. Tating, 149 scra 265)
b. Yes, because a judgment rendered in his favor by the makati court
declaring him to be the owner of the properties levied on would not
constitute the interference with the powers or processes of the pasig
court which rendered the judgment to enforce the execution. If that is
so, an interlocutory order such as the writ of preliminary injunction
against the sheriff, upon a claim and prima facie showing of ownership,
cannot be considered as such interference. (abiera v. Ca, 45 scra 314;
sy v. Discaya, 181 scra 378)

45. In the same case, the trial court rendered judgment against mario reyes which
was received by defendant’s lawyer on september 3, 1990 and by plaintiff’s
lawyer on september 1990. Mario reyes filed his notice of appeal on september
18, 1990 and the plaintiff’s lawyer on september 18, 1990. On september 18,
1990. On september 19, 1990, norma alajar filed a motion for execution pending
appeal alleging that the appeal is dilatory and that mario reyes has no valid
defense: besides, norma alajar is already destitute and needs the money very
badly. Mario reyes opposed the motion for execution pending appeal on the
ground that since his appeal had been perfected on september 18, 1990, the trial
court can no longer act on the said motion.

decide with reasons. (1990)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The motion for execution pending appeal filed by norma alajar was timely
because it was filed before the perfection of the appeal of mario reyes. The
appeal was perfected upon the expiration of the last day to appeal by any party.
(sec. 23 of interim rules) hence, the appeal was perfected on september 20,
1990, which was the last day to appeal by norma alajar because her lawyer
received copy of the decision on september 5, 1990. (balgado v. Iac, 147 scra
258)

46. The rtc of manila rendered a judgment for the plaintiff antonio santos and against
defendant benjamin carandang. Defendant benjamin carandang received the
decision on july 15, 1988. On july 25, 1988, benjamin filed a motion for extension
of time for ten days from july 30, 1988, within which to file a motion for
reconsideration. The court failed to act on the motion for extension but benjamin
filed on august 5, 1988 his motion for reconsideration within ten-day extension
prayed for.
Antonio santos, on august 15, 1988, filed a motion for the issuance of a writ of
execution alleging that the judgment had already become final and executor.
rule on the motion with reasons. (1988)

Suggested answer:

Motion for execution is granted. A motion for extension of time within which to file a
motion for reconsideration is not allowed, except in the sc, (habaluyas enterprises,
inc. Vs japson, 142 scra 208) hence, the decision become final and executor on
july 30, 1988.

47. Writ of execution were returned unsatisified by the sheriff on the execution of a
final judgment rendered in favor of a for a sum of money against b on june 5,
1983. On june 30, 1988, a found some property in the name of b so that he
immediately filed on july 1, 1988 a motion for the issuance of an alias writ of
execution.
A. As the judge, will you grant the writ? Explain.
B. May a judgment in a civil case be executed pending appeal? Explain.
(1988)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

(a) The answer depends on when the judgement was entered. If the final judgment
was entered on june 5. 1983, i will not grant the writ because more than 5 years
had elapsed from the date of entry of the judgment or from the date it became
final and executory. However, if the final judgment rendered on june 5, 1983 was
entered or became final and executory after july 1, 1983, i would grant the writ.
(section 6 of rule 39)
(b) Yes,upon good reasons to be stated in a special order. (sec. 2 of rule 39). The
motion for execution pending appeal should be filed before the perfection of
appeal. (belgado vs iac, 14 scra 258)

Alternative answer:

Since the question does not specify the date when the judgment was entered,
which date is the reckoning of the five-year period within which judgment may be
executed by motion, the motion may be granted on the assumption that the entry
of judgment was made after july 1, 1983. In this case, the five-year period from
entry of judgment has not yet elapsed. Hence, the judgment can still be executed
by mere motion.

Committees recommendation:

As the facts of the case given used the word rendered and not entered, the
examinees should not be blamed.

Alternative answer in (b):

(1) The motion for execution pending appeal may be granted upon good reasons by
the appellate court. (philippine british assurance co. Vs iac, 150 scra 520)
(2) A judgment in an action for injunction, receivership and accounting is executory
pending appeal, unless otherwise ordered by the court. (section 4 of rule 39)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(3) A judgment rendered against the defendant in an action of forcible entry or illegal
detainer is immediately executory.

48. “a” obtained a judgment against “b” for the payment of money. For failure to
appeal, the judgment became final on july 5, 1975 writs of execution were
returned unsatisfied, for the sheriff was unable to find property of “b” subject to
execution. On june 30, 1984, “a” located some property of “b”. Whereupon “a”
immediately filed in july 1984 a motion for the issuance of an alias writ of
execution.
if you were the judge, will you grant the writ? Why?(1987)

Suggested answer:

No, because a motion for the issuance of an alias writ of execution may be
granted only within five years from the entry of the judgment on july 5, 1975. It
will be necessary for “a” to file an action to enforce or revive the judgment before
the lapse of ten years. (sec. 6 of rule 39)

49. “a” obtained a judgment for money against “b”. The sheriff enforcing the
corresponding writ went to “c” who is the pledgee of a ring “b” had given as
security for a loan and insisted on taking possession of the ring for the purpose of
eventually selling it at the execution sale to satisfy the judgment debt of “b” to “a”.
Has “c” the obligation to surrender the ring to the sheriff? Explain.(1987)
Suggested answer:

No. “c” has no obligation to surrender the ring to the sheriff because “c” has the
right to retain the ring in his possession until the loan is paid. (art. 2098 civil
code) if the sheriff should take possession of the ring, “c” may file a third-party
claim.

RULE 40 – 43 APPEALS

Rule 41: appeal from the rtc

Two dismissal rule/ dismissal of action (2017)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

A. Rules on summary procedure

Laura was the lessee of an apartment unit owned by louie. When the lease
expired, laura refused to vacate the property. Her refusal prompted louie to file
an action for unlawful detainer against laura who failed to answer the complaint
within the reglementary period.
Louie then filed a motion to declare laura in default should the motion be
granted? Explain your answer. (3%)

Suggested answer
No, the motion should not be granted because it is a prohibited pleading under
section 19 (h) of the rules on summary procedure, a motion to declare
defendant in default is among the pleadings that are prohibited in cases covered
by said rule: considering that an action for unlawful detainer is covered by the
rules on summary procedure, louie’s motion to declare laura in default is a
prohibited pleading, and thus, should not be granted.

B. Two dismissal rule/ dismissal of action

agatha filed a complaint against yana in the rtc in makati city to collect
p350,000.00, än amount representing the unpaid balance on the price of the car
yana had bought from agatha. Realizing a jurisdictional error in filing the
complaint in the rtc, agatha filed a notice of dismissal before she was served
with the answer of yana. The rtc issued an order confirming the dismissal .
Three months later, “agatha filed another complaint against yana based on the
same cause of action this time in the metc of makati city. However, for reasons
personal to her, agatha decided to have the complaint dismissed without
prejudice by filing a notice of dismissal prior to the service of the answer of
yana. Hence, the case was dismissed by the metc.
A month later, agatha refiled the complaint against yana in the same metc.
May yana successfully invoke the two-dismissal rule to bar ag atha’s third
complaint? Explain your answer (3%)
Appeal from the rtc (2014)
Goodfeather corporation, through its president, al pakino, filed with the regional trial
court (rtc) a complaint for specific performance against robert white. Instead of filing an
answer to the complaint, robert white filed a motion to dismiss the complaint on the
ground of lack of the appropriate board resolution from the board of directors of
goodfeather corporation to show the authority of al pakino to represent the corporation
and file the complaint in its behalf. The rtc granted the motion to dismiss and,
accordingly, it ordered the dismissal of the complaint. Al pakino filed a motion for
reconsideration which the rtc denied. As nothing more could be done by al pakino
before the rtc, he filed an appeal before the court of appeals (ca). Robert white moved
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

for dismissal of the appeal on the ground that the same involved purely a question of
law and should have been filed with the supreme court (sc). However, al pakino claimed
that the appeal involved mixed questions of fact and law because there must be a
factual determination is, indeed, al pakino was duly authorized by goodfeather
corporation to file the complaint.

Whose position is correct? Explain. (4%)

Suggested answer:

Al pakino is correct in claiming that the appeal involved mixed questions of fact and
law.

There is a question of law when the doubt or difference arises as to what the law is on a
certain state of facts. On the other hand, there is a question of fact, when the doubt or
difference arises as to the truth or falsehood of alleged facts (mirant philippines
corporation v. Sario, g.r. No. 197598, november 21, 2012).

Since the complaint was dismissed due to the alleged lack of appropriate board
resolution from the board of directors of goodfeather corporation, the appeal will
nessarily involve a factual determination of the authority to file the complaint for the said
corporation. Hence, the appeal before the court of appeals is correct.

Alternative answer:

Al pakino and robert white are incorrect.

An appeal may be taken from a judgment or final order that completely disposes of the
case, or of a particular matter therein when declared by the rules to be appealable.

It is well-settled that an order dismissing an action without prejudice cannot be a subject

of appeal (section 1, rule 41, rules of court).

Since a dismissal based on alleged lack of appropriate board resolution is considered

without prejudice which cannot be a subject of an appeal, the appropriate remedy is a
special civil action under rule 65 of the rules of court.

2012

Appeals; modes of appeal

a. Where and how will you appeal the following:

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(1) an order of execution issued by the rtc. (1%)

Suggested answer:

A petition for certiorari under rule 65 before court of appeals

Alternative answer:

The mode of elevation may be either by appeal (writ of error or certiorari), or by a

special civil action of certiorari, prohibition, mandamus. (banaga v. Majaducon cited in
general milling corporation-independent labor union v. General milling corporation, g.r.
No. 183122, june 15, 2011, peres, j.).

(2) judgment of rtc denying a petition for writ of amparo. (1%)

Suggested answer:

Any party may appeal from the final judgment or order to the supreme court by way of a
petition for review on certiorari under rule 45 of rules pf court. The period of appeal shall
be five (5) working days from the day of notice of the adverse judgment, and the appeal
may raise questions of fact or law or both. (sec. 19, rule on the writ of amparo, a.m. No.
07-9-12-sc, 25 september 2007).

(3) judgment of mtc on a land registration case based on its delegated

jurisdiction. (1%)

Suggested answer:

The appeal should be filed with the court of appeals by filing a notice of appeal within 15
days from notice of judgment or final order appealed from. (sec. 34, batas pambasa blg.
125, or the judiiciary reorganization act of 1980, as amended by ra 7691, march 25,
1994).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(4) a decision of the court of tax appeal's first division. (1%)

Suggested answer:

The decision of the court of tax appeal division may be appealed to the cta en banc.

The decision of the court of tax appeals are no longer appealable to the court of
appeals. Under the modified appeal procedure, the decision of a division of the cta may
be appealed to the cta en banc. The decision of the cta en banc may in turn be directly
appealed to supreme court by way of petition for review on certiorari under rule 45 on
questions of law. (sec. 11, r.a. 9282, march 30, 2004).

2009

Appeals; abandonment of a perfected appeal

True or false. Answer true if the statement is true, or false if the statement is
false. Explain your answer in not more than two (2) sentences. (2009)

The filing of a motion for the reconsideration of t h e t r i a l c o u r t ' s d e c i s i o n

r e s u l t s i n t h e abandonment of a perfected appeal.

Suggested answer:

False. The trial court has lost jurisdiction after perfection of the appeal and so it can
no longer entertain a motion for reconsideration.

Alternative answer:

False, because the appeal may be perfected as to one party but not yet perfected
as to the other party who may still file a motion for reconsideration without
abandonment of his right of appeal even though the appeal of the case is perfected
already as to the other party.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Appeals; modes of appeal

On july 15, 2009, atty. Manananggol was served copies of numerous unfavorable
judgments and orders. On july 29, 2009, he filed motions for reconsideration which were
denied. He received the notices of denial of the motions for reconsideration on october
2, 2009, a friday. He immediately informed his clients who, in turn, uniformly instructed
him to appeal. How, when and where should he pursue the appropriate remedy for each
of the following:

Judgment of the first division of the court of tax appeals (cta) affirming the rtc decision
convicting his client for violation of the national internal revenue code? (2009)

Suggested answer:

By petition for review filed with the court of tax appeals (cta) en bane, within 30 days
from receipt of the decision or ruling in question (sec. 91b], rule 9, rev. Rules of cta).

Appeals; modes of appeal; rtc, ca

Distinguish the two (2) modes of appeal from the judgment of the regional trial court to
the court of appeals. (2009)

Suggested answer:

In cases decided by the regional trial courts in the exercise of their original jurisdiction,
appeals to the

Court of appeals shall be ordinary appeal by filing written notice of appeal indicating the
parties to the appeal; specifying the judgment/final order or part thereof appealed from;
specifying the court to which the appeal is being taken; and stating the material dates
showing the timeliness of the appeal. The notice of appeal shall be filed with the rtc
which rendered the judgment appealed from and copy thereof shall be served upon the
adverse party within 15 days from notice of judgment or final order appealed from. But if
the case admits of multiple appeals or is a special proceeding, a record on appeal is
required aside from the written notice of appeal to perfect the appeal, in which case the
period for appeal and notice upon the adverse party is not only 15 days but 30 days
from notice of judgment or final order appealed from. The full amount of the appellate
court docket fee and other lawful fees required must also be paid within the period for
taking an appeal, to the clerk of the court which rendered the judgment or final order
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

appealed from (secs. 4 and 5, rule 41, rules of court). The periods of 15 or 30 days
above-stated are non-extendible.

In cases decided by the regional trial court in the exercise of its appellate jurisdiction,
appeal to the court of appeals shall be by filing a verified petition for review with the
court of appeals and furnishing the rtc and the adverse party with copy thereof, within
15 days from notice of judgment or final order appealed from. Within the same period
for appeal, the docket fee and other lawful fees required with the deposit for cost' should
be paid. The 15-day period may be extended for 15 days and another 15 days for
compelling reasons.

2008

Appeals; second notice of appeal

After receiving the adverse decision rendered against his client, the defendant, atty.
Sikat duly filed a notice of appeal. For his part, the plaintiff timely filed a motion for
partial new trial to seek an increase in the monetary damages awarded. The rtc instead
rendered an amended decision further reducing the monetary awards. Is it necessary
for atty. Sikat to file a second notice of appeal after receiving the amended decision?
(2008)

Suggested answer:

Yes, it is necessary for atty. Sikat to file a second notice of appeal to the amended
decision because a substantial change was made to the original decision when the
monetary awards were reduced in the amended decisions ad in effect the amended
decision superseded the original decision. A new notice of appeal is required to comply
with the required contents thereof in respect of the amended decision (pacific life
assurance corporation v. Sison, 299 scra 16[1998]; magdalena estates, inc. V. Caluag,
11 scra 333[1964]).

Question: (2004)

charged with the offense of slight physical injuries under an information duly filed
with the manila metc which in the meantime had duly issued an order declaring that the
case shall be governed by the revised rule on summary procedure, the accused filed
with said court a motion to quash on the sole ground that the officer who filed the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

information had no authority to do so. The metc denied the motion on the ground that it
is a prohibited motion under the said rule.

the accused thereupon filed with the manila rtc a petition for certiorari in sum
assailing and seeking the nullification of the metc’s denial of his motion to quash. The
rtc in due time issued an order denying due course to the certiorari petition on the
ground that it is not allowed by the said rule. The accused forthwith filed with said rtc a
motion for reconsideration of the order. The rtc in time denied said motion for
reconsideration on the ground that it is a prohibited motion under the rules of summary
procedure.

were the rtc’s orders denying due course to the petition as well as denying the
motion for reconsideration correct? Reason.

Suggested answer:

1998
A. When an appeal from RTC to the CA deemed perfected? (2%)
B. XXX received a copy of the RTC decision on June 9, 1999; YYY received it
on the next day, June 10, 1999. XXX filed a Notice of Appeal on June 15,
1999. The parties entered into a compromise on June 16, 1999. On June 13,
1999, YYY, who did not appeal, filed with RTC a motion for approval of the
Compromise Agreement. XXX changed his mind and opposed the motion on
the ground that the RTC has no more jurisdiction. Rule on the motion
assuming that the records have not yet been forwarded to the CA. (2%)

Suggested Answer:

a. An appeal from RTC to the CA is deemed perfected as to the appellant upon

filing of a notice of appeal in the RTC in due time or within the reglementary
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

period of appeal. An appeal by record on appeal is deemed perfected as to

the appellant with respect to the subject matter thereof upon the approval of
the record on appeal filed in due time. (Sec. 9, Rule 41 of the 1997 Rules)

The contention of XXX that RTC has no more jurisdiction over the case is not correct
because at the time that the motion to approve the compromise had been filed, the
period of appeal of YYY had not yet expired. Besides, even if that period had already
expired, the records of the case had not yet been forwarded to the CA. The rules
provide that in appeals by notice of appeal, the court loses jurisdiction over thr case
upon the perfection of the appeals filed in due time and the expiration of the time to
appeal of the other parties. (Sec. 9, third par., Rule 41 of the 1997 Rules). The rules
also provide that prior to the transmittal of the record, the court may, among others,
approve compromises. (Sec. 9, fifth par., Rule 41 of the 1997 Rules). (Note: June 13,
the date of the filing of the motion for approval of the Compromise Agreement, appears
to be a clerical error.

RULE 41 APPEAL FROM THE REGIONAL TRIAL COURTS

Question: (2004)

ax was charged before the yy rtc with theft of jewelry valued at p20,000,
punishable with imprisonment of up to 10 years of prision mayor under the revised
penal code. After trial, he was convicted of the offense charged, notwithstanding that
the material facts duly established during the trial showed that the offense committed
was estafa, punishable by imprisonment of up to eight years of prision mayor under the
said code. No appeal having been taken therefrom, said judgment of conviction became
final.

is the judgment of conviction valid? Is the said judgment reviewable through a

special civil action for certiorari? Reason.

Suggested answer:

yes, the judgment of conviction for theft upon an information for theft is valid
because the court had jurisdiction to render judgment. However, the judgment was
grossly and blatantly erroneous. The variance between the evidence and the judgment
of conviction is substantial since the evidence is one for estafa while the judgment is
one for theft. The elements of the two crimes are not the same (lauro santos v. People,
181 scra 487). One offense does not necessarily include or is included in the other (sec.
5 of rule 120). The judgment of conviction is reviewable by certiorari if no appeal had
been taken, because the judge committed a grave abuse of discretion tantamount to
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

lack or excess of his jurisdiction in convicting the accused of theft and in violating due
process and his right to be informed of the nature and the cause of the accusation
against him, which make the judgment void. With the mistake in charging the proper
offense, the judge should have directed the filing of the proper information and
thereafter dismissed the original information (sec. 19 of rule 119).

Question: (2004)

is the order of dismissal valid? May plaintiff properly take an appeal? Reason.

Suggested answer:

Alternative answer:

either certiorari or ordinary appeal may be resorted to on the ground that the
judgment is void. Appeal, in fact, may be the more expedient remedy.

Alternative answer:

Question: (2003)

defendant x received an adverse decision of the regional trial court in an ordinary

civil case on 02 january 2003. He filed a notice of appeal on 10 january 2003. On the
other hand, plaintiff a received the same decision of 06 january 2003, and on 19 january
2003, filed a motion for reconsideration of the decision. On 13 january 2003, defendant
x filed a motion withdrawing his notice of appeal in order to file a motion for new trial
which he attached. On 20 january 2003, the court denied a’s motion for reconsideration
and x’s motion to withdraw notice of appeal. Plaintiff a received the order denying his
motion for reconsideration on 03 february 2003 and filed his notice of appeal on 05
february 2003. The court denied due course to a’s notice of appeal on the ground that
the period to appeal had already lapsed. (6%)

A. Is the court’s denial of x’s motion to withdraw notice of appeal proper?

B. Is the court’s denial of due course to a’s appeal correct?

Suggested answer:

A. No, the court’s denial of x’s motion to withdraw notice of appeal is not proper,
because the period of appeal of x has not yet expired. From january 2, 2003
when x received a copy of the adverse decision up to january 13, 2003 when he
filed his withdrawal of appeal and motion for new trial, only ten (10) days had
elapsed and he had fifteen (15) fays to do so.

B. no, the court’s denial of due course to a’s appeal is not correct because the
appeal was taken on time. From january 6, 2003 when a received a copy of the
decision up to january 19, 2003 when he filed a motion for reconsideration, only
twelve (12) days had elapsed. Consequently, he had three (3) days from receipt
on february 3, 2003 of the order denying his motion for reconsideration within
which to appeal. He filed his notice of appeal on february 5, 2003, or only two (2)
days later.

Alternative answer:

. Since a’s motion for reconsideration was filed on january 19, 2003 and it was
denied on january 20, 2003, it was clearly not set for hearing with at least three
days’ notice. Therefore, the motion was pro forma and did not interrupt the period
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

of appeal which expired on january 21, 2003 or fifteen (15) days after notice of
the decision of january 6, 2003.

50. The defendant in a civil action received a note of the judgment of the municipal
trial court on 10 december.
a. What is his last day for appealing?
b. Can he validly move for the extension of the period for filing a motion for
reconsideration of the decision in view of the christmas holidays?
c. In this case, when will the appeal be deemed perfected? (1991)

Suggested answer:

a. December 26, since the last day, december 25 is a holiday.

b. No, a motion for extension of the period for filing a motion for reconsideration
is not allowed. (habaluyas ent. V. Japson, 142 scra 208)
c. the appeal will be deemed perfected upon the expiration of the last day to
appeal by any party. (sec. 23 of interim rules)

Rule 41 – appeal from the regional trial courts

51. Defendant xanthe filed a motion to dismiss plaintiff yogi’s complaint before the
rtc.
(a) The court grants the motion to dismiss.
Explain the remedies or procedure to be resorted to or to be pursued by
plaintiff to have the order of dismissal reversed and corrected finally.
(b) The court denies the motion to dismiss
1) May xanthe appeal the denial? Reason
2) How and on what ground or grounds may defendant xanthe bring the
denial of his motion to dismiss to appellate courts? Explain (1988)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(a) The remedy is to appeal to the ca from the order of dismissal within fifteen
days from notice thereof by filing a notice of appeal with the rtc and serving a
copy thereof on the adverse party.
However, if only a question of law is involved, the remedy is to file a petition
for review on certiorari with the sc within fifteen days from the notice of the
order or the denial of his motion for reconsideration and serving a copy
thereof on the rtc and on the adverse party. (laxamana v ca, 143 scra 643)
(b) 1) no because the order of denial is merely interlocutory, and only final
judgments or order are subject to appeal.
2) defendant x may bring the denial of his motion to dismiss to the appellate
courts by filing a petition for certiorari on the ground of lack or excess of
jurisdiction or grave abuse of discretion. (newsweek vs iac, 142 scra 171)

RULE 42 – PETITION FOR REVIEW FROM THE RTC TO THE CA

QUESTION(1998):
The Regional Trial Court (RTC) affirmed the appealed decision of the Municipal Trial
Court (MTC). You are the counsel of the defeated party and he tells you to appeal the
RTC’s decision.

1. What mode of appeal will you adopt?

2. Within what time and in what court should you file your appeal?

SUGGESTED ANSWERS:

1. The mode of Appeal is by petition for review under Rule 42, 1997 Rules of
Civil Procedure.

2. The period of appeal is within fifteen (15) days from notice of the decision
subject of the appeal or of the denial of a motion for new trial or reconsideration
filed in due time. The appeal shall be filed in the Court of Appeals. (Sec.1, Rule 42,
1997 Rules of Civil Procedure.)

52. Suppose that instead of filing a motion for reconsideration with the rtc, juan
santos filed a notice of appeal with the rtc stating that he is appealing to the court
of appeals on the ground that the judgment is contrary to the law and the facts of
the case.

As lawyer for maria cruz, on what procedural ground will you oppose the appeal?
Explain your answer. (1990)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

I would oppose the appeal on the ground that the proper procedure is the filing of
a petition for review with the court of appeals. (sec. 22 of bp 129). The filing of a
notice of appeal is proper if the case was originally filed in the regional trial court.

53. In decision rendered by the regional trial court, plaintiffs jose, benigno, and
nicolas were ordered to surrender the possession of the fishpond subject matter
of the litigation in favor of the defendant. Yolando. Counsel for the plaintiffs
received the decision on july 23, 1987, and appealed from it on the following day,
july 24, 1987. Counsel for defendant received the decision earlier, on july 20,
1987, and filed a motion for execution pending appeal on july 25, 1987, which the
trial court granted. Plaintiffs went to the court of appeals questioning the order
granting the execution of judgment. The appellate court nullified the order on the
ground that the motion for execution pending appeal was filed on july 25, 1987,
or after the appeal had already been perfected. Is the decision of the court of
appeals proper? Explain. (1989)

Suggested answer:

No, the time within which the prevailing party may file a motion for execution
pending appeal is before the perfection of the appeal. An appeal is deemed
perfected upon the expiration of the last day of the appeal of the plaintiffs, which
was filed on july 24, 1987, was perfected only on august 8, 1987, which was the
last day to appeal by the defendant. Hence, the motion for execution pending
appeal filed on july 25, 2987 was filed on time. (sec. 23 of interim rules; delgado
vs. Iac, 147 scra 258).

RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT

2008

Certiorari; rule 45 vs. Rule 65

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Compare the certiorari jurisdiction of the supreme court under the constitution with that
under rule 65 of the rules of civil procedure. (2008)

Suggested answer:

A) under the constitution, the certiorari jurisdiction of the supreme court provides for its
expanded jurisdiction power of judicial power over [governs] all branches or
instrumentalities of the government where is a grave abuse of discretion amounting to
lack or excess of jurisdiction, as [agencies and instrumentalities] provided in section 1,
second par., art. Viii of the 1987 constitution. The petition is filed under rule 45 of the
rules of court, and [the writ is directed not only to tribunal, board or officer exercising
judicial or quasi-judicial functions]. And the period fixed for availing of the remedy is
within 30 day from receipt of the copy of the decision, order or ruling in question (sec. 7,
art. Ix).

but under rule 65 of the rules of court, the certiorari jurisdiction of the supreme
court is limited to acts done without or in excess of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction, by a tribunal, board or officer
exercising judicial or quasi-judicial functions only. And the period fixed for availing of the
remedy is not later than 60 days from notice of judgment; order or resolution in question
(secs. 1 and 4, rule 65, rules of court).

Question: (2006)

mark filed with the bureau of internal revenue a complaint for refund of taxes paid
but it was not acted upon, so he filed a similar complaint with the court of tax appeals
raffled to one of its divisions. Mark’s complaint was dismissed. Thus, he filed with the
court of appeals a petition for certiorari under 65. Does the court of appeals have
jurisdiction over mark’s petition?

Suggested answer:

no. A decision of the division of the court of tax appeals (cta) is appealable within
15 days to the cta en banc. On the other hand, a party adversely affected by a decision
or ruling of the cta en banc may file with the sc a verified petition for review of certiorari
pursuant to rule 45 on purely questions of law.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

ra 9282 expanded the jurisdiction of the cta and elevated the same to the level of
a collegiate court equivalent to the rank of the ca. Hence, the ca no longer has
jurisdiction to review decisions of the cta en banc.

Question: (2005)

may the aggrieved party file a petition for certiorari in the supreme court under
rule 65 of the 1997 rules of civil procedure instead of filing a petition for review on
certiorari under rule 45 thereof for the nullification of a decision of the court of appeals in
the exercise either of its original or appellate jurisdiction? Explain.

Suggested answer:

the remedy to nullify a decision of the court of appeals is a petition for review on
certiorari in the supreme court under rule 45, instead of a petition for certiorari under
rule 65, except in certain exceptional circumstances such as where appeal is
inadequate. By settled jurisprudence, certiorari is not a substitute for a lost appeal.

1998 question

A. Distinguish a petition for certiorari as a mode of appeal from a special civil

action for certiorari. (2%)
B. May a party resort to certiorari when appeal is still available? Explain. (2%)

Suggested Answer:

a. A petition for review on certiorari as a mode of appeal may be distinguish

from a special civil action for certiorari in that the petition for certiorari as a
mode of appeal is governed by Rule 45 and is fled from a judgment or final
order of the RTC, the Sandiganbayan or the CA, within fifteen (15) days from
notice of the judgment appealed from or of the denial of the motion for new
trial or reconsideration filed in due time on questions of law only (Sec. 1 and
2); special civil action for certiorari is governed by Rule 65 and is filed to
annul or modify judgments, orders or resolution rendered or issued without
or in excess of jurisdiction or with grave abuse of discretion tantamount to
lack or excess of jurisdiction, when there is no appeal nor any plain, speedy
and adequate remedy in the ordinary course of law, to be filed within sixty
(60) days from notice of the judgment, order or resolution subject of the
petition. (Secs. 1 & 4).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Additional Answer:

1. In appeal by certiorari under rule 45, the petitioner and respondent are
the original parties to the action and the lower court is not impleaded.
In certiorari, under Rule 65, the lower court is impleaded.
2. In appeal by certiorari, the filing of a motion for reconsideration is not
required, while in the special civil action of certiorari, such a motion is
generally required.

Suggested Answer:

b. No, because as a general rule, certiorari is proper if there is no appeal.

(Sec. 1 of Rule 65). However, if appeal is not speedy and adequate
remedy, certiorari may be resorted to. (Echaus v. CA, 199 SCRA 381).
Certiorari is sanctioned, even if appeal is available, on the basis of a
patent, capricious and whimsical exercises of discretion by a trial
judge as when an appeal will not promptly relieve petitioner from the
injurious effects of the disputed order (Vasquez vs. Robill-Alenio, 271
SCRA 67).

Question no. 5 (1994)

State the steps for bringing up to the supreme court

1) A decision of the municipal trial court of manila in an ejectment case

Answer:

1)To bring up a decision of the municipal trial court of manila in an ejectment case to
the supreme court, it must first be appealed to the regional trial court by notice of appeal,
and the decision of the regional trial court may be appealed to the court of appeals
through a petition for review, alter which the decision of the court of appeals may be
elevated to the supreme court through a petition for review on certiorari. The decision of
the regional trial court may be appealed directly to the supreme court on questions of law
only through a petition for review on certiorari

Question no. 5 (1994)

State the steps for bringing up to the supreme court
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

3. A decision of the regional trial court. Quezon city to a case originally filed with

said court and where the appeal involves a pure question of law.

Answer:

3. To bring up to the supreme court a decision of the regioal trial court, quezon city in
a case originally filed with said court and where the appeal involves a pure question of
law, a petition for review on certiorari should be filed. (murillo v. Consul; sc circular no. 2-
90).

Question no. Xi (1992)

By sheer coincidence, atty. Lopez was on the same day, june 30, 1991,
served with adverse decisions of the court of appeals and the regional trial
court. In each case he filed a motion for reconsideration simultaneously
on july 10, 1991. He received notices of the denial of his two motions for
reconsideration on august 15, 1991.
If atty lopez decides to appeal in each of the two cases

(a) What mode of appeal should he pursue in each case?

Suggested answer:
( i) from the court of appeals to supreme court - appeal by certiorari under
rule 45.
(2) From the regional trial court to court of appeals -ordinary appeal on
questions of fact and law.
(3) From the regional trial court to supreme court -appeal by certiorari on
questions of law only
(b) How would he perfect each appeal?
Suggested answer:
(1) From court of appeals to supreme court, by filing a petition for review on
certiorari with the supreme court and serving a copy on the court of appeals
and the adverse party.
(2) From regional trial court to court of appeals, by filing a notice of
appeal with regional trial court and serving a copy on the adverse party.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(3) From regional trial court to supreme court, by filing a petition for
review on certiorari with supreme court and serving a copy on the lower court
and the adverse party.
(c) within what time should each appeal be perfected?
Suggested answer:
(1) from court of appeals to supreme court, on or before august 30, 1991 or
fifteen days from notice of the denial of the motion for reconsideration. (sec. I of
rule 45)
(2) From regional trial court to court of appeals, on or before august 21,
1991, or the remaining period of 6 days counted from notice of denial since from
june 30 to july 10, nine days had elapsed. (de las alas us. Court of appeals. 83 scra
200)
(3) From regional trial court to supreme court, on or before august 30,
1991. As in appeal from court of appeals to supreme court. (ra 5440)

54. A. Suppose the motion to dismiss in the preceding problem is granted, what is
the remedy of norma alajar?
B. If the motion to dismiss is denied, what is the recourse of mario reyes?
Explain your answer. (1990)
Suggested answer:

(a) The remedy of norma alajar from the order of dismissal is an appeal by
certiorari under rule 45 of the rules of court.

Alternative answer:

1. Another remedy is for alajar to file a motion for reconsideration with a request
to have another summons served on mario reyes.
2. The recourse of mario reyes from the order of denial is not an immediate
appeal because the order i interlocutory. However, since the issue raised is
lack of jurisdiction over his person, he may file a petition for certiorari under
rule 65 of rules of court. (newsweek v. Iac, 142 scra 171)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

55. (a.) What are the contents of a petition for review by certiorari, under rule 45 of
the rules of court, from a judgment of the ca to the sc?
(b.) When must this petition for review under paragraph (a) hereof be filed? How
does this period differ from that required for filing the requisite petition in a
special civil action for certiorari?
(c.) State the three grounds upon which the sc may dismiss the petition under
paragraph (a) hereinabove. (1988)

Suggested answer:

a) The petition shall contain a concise statement of the matters involved, the
assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the
judgment sought to be reviewed, together with twelve (12) copies of the record on
appeal, if any, and of the petitioner’s brief as filed in the ca. A verified statement of
the date when notice of judgment and denial of the motion for reconsideration, if
any, were received shall accompany the petition;
b) Within fifteen days from notice of judgment or of the denial of his motion for
reconsideration. (sec 1 of rule 45)
There is no reglementary period for filing a petition for certiorari as a special civil
action. Only a reasonable period is required.
c) The three grounds are that the appeal is without merit, or is prosecuted manifestly
for delay, or that the questions raised are too unsubstantial to require
consideration. (sec. 3 of rule 45)

56. Defendant xanthe filed a motion to dismiss plaintiff yogi’s complaint before the
rtc.
a. The court grants the motion to dismiss.
Explain the remedies or procedure to be resorted to or to be pursued by
plaintiff to have the order of dismissal reversed and corrected finally.
b. The court denies the motion to dismiss
1. May xanthe appeal the denial? Reason
2. How and on what ground or grounds may defendant
xanthe bring the denial of his motion to dismiss to
appellate courts? Explain (1988)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

A. The remedy is to appeal to the ca from the order of dismissal within

fifteen days from notice thereof by filing a notice of appeal with the rtc and
serving a copy thereof on the adverse party.

However, if only a question of law is involved, the remedy is to file a

petition for review on certiorari with the sc within fifteen days from the
notice of the order or the denial of his motion for reconsideration and
serving a copy thereof on the rtc and on the adverse party. (laxamana v
ca, 143 scra 643)
B. 1) no because the order of denial is merely interlocutory, and only final
judgments or order are subject to appeal.
2) defendant x may bring the denial of his motion to dismiss to the
appellate courts by filing a petition for certiorari on the ground of lack or
excess of jurisdiction or grave abuse of discretion. (newsweek vs iac, 142
scra 171)

RULE 47: ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

Annulment of judgment (2018)

In 2015, dempsey purchased from daria a parcel of land located in dumaguete, negros
oriental. The latter executed a deed of absolute sale and handed to dempsey the
owner's duplicate copy of tct no. 777 covering the property. Since he was working in
manila and still had to raise funds to cover taxes, registration and transfer costs,
dempsey kept the tct in his possession without having transferred it to his name. A few
years thereafter, when he already had the funds to pay for the transfer costs, dempsey
went to the register of deeds of dumaguete and discovered that, after the sale, daria
had filed a petition for reconstitution of the owner's duplicate copy of tct no. 777 which
the rtc granted. Thus, unknown to dempsey, daria was able to secure a new tct in her
name.
What is dempsey's remedy to have the reconstituted title in the name of daria nullified?
(5%)
Suggested answer:
Dempsey may file a petition for annulment of judgment under rule 47 of the rules of
court.
The supreme court had consistently held that when the owner;s duplicate certificate of
title has not been lost, but is in fact in the possession of another person, then the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

reconstituted certificate is void, because the court that rendered the decision had no
jurisdiction. As a rule, reconstitution can validly be made only in case of loss of the
original certificate. In this regard, the remedy to nullify an order granting reconstitution is
a petition for annulment under rule 47 of the rules of court (eastworld motor industries
corporation v. Skunac corporation, g.r. No. 163994, 16 december 2005).
In this case, rtc dumaguete had no jurisdiction to order the reconstitution of the owner’s
duplicate copy of tct no. 777, considering that the owner’s duplicate copy thereof had
not been lost, but is merely in dempsey’s possession. The order granting daria’s petition
for reconstitution is therefore void. Accordingly, dempsey may file a petition for
annulment of judgment under rule 47 to nullify the reconstituted name in daria’s name.
Annulment of judgment (2014)
Tom wallis filed with the regional trial court (rtc) a petition for declaration of nullity of his
marriage with debi wallis on the ground of psychological incapacity of the latter. Before
filing the petition, tom wallis had told debi wallis that he wanted the annulment of their
marriage because he was already fed up with her irrational and eccentric behaviour.
However, in the petition for declaration of nullity of marriage, the correct residential
address of debi wallis was deliberately not alleged and instead, the residential address
of their married son was stated. Summons was served by substituted service at the
address stated in the petition.

For failure to file an answer wallis was declared in default and tom wallis presented
evidence ex-parte. The rtc rendered judgment declaring the marriage null and void on
the ground of psychological incapacity of debi wallis. Three (3) years after the judgment
was rendered. Debi wallis got hold of a copy thereof and wanted to have the rtc
judgment reversed and set aside.

If you are the lawyer of debi wallis, what judicial remedy or remedies will you take?
Discuss and specify the ground or grounds for said remedy or remedies. (5%)

Suggested answer:

Debi wallis may file a petition for annulment of judgment under rule 47 of the rules of
court, on the grounds of lack of jurisdiction, extrinsic fraud and denial of the right to due
process (leticia diona v. Romeo balange, g.r. No. 173589, january 7, 2013).

An action for annulment of judgment is a remedy in law independent of the case where
the judgment sought to be annulled was rendered. The purpose of such action is to
have the final and executory judgment set aside so that there will be a renewal of
litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal,
petition for relief from judgment, or other appropriate remedies are no longer available
through no fault of the appellant and is based on the grounds of extrinsic fraud, and lack
of jurisdiction (alaban v. Court of appeals, g.r. No. 156021, september 23, 2005).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Relative thereto, the act of tom wallis in deliberately keeping debi wallis away from the
court, by intentionally alleging a wrong address in the complaint constitutes extrinsic
fraud.

Moreover, the failure of the court to acquire jurisdiction over the person of the
respondent, being an indispensable party, necessitates the annulment of judgment of
the regional trial court.

Likewise, there is denial of the right to due process when debi wallis was not given an
opportunity to be heard in the case. Hence, the judgment rendered by the rtc may be
annulled by the court of appeals under rule 47 of the rules of court.

Moreover, it is evident that the ordinary remedies of new trial, petition for relief or other
appropriate remedies are no longer available through no fault of debi wallis because
she was able to obtain a copy of the decision only three (3) years after the same was
rendered by the trial court.

At any rate, the court erred in declaring the defendant in default because there is no
default in a petition for declaration of nullity of marriage (section 3, rule 9, rules of court).
Thus, a petition for certiorari under rule 65 of the rules of court could have been an
appropriate remedy within the reglementary period allowed by the rules.

Rule 51 judgment

Question (2002)

A. A defaulted judgment was rendered by the rtc ordering d to pay p a sum of

money. The judgment became final, but d filed a petition for relief and obtained a
writ of preliminary injunction staying the enforcement of the judgment. After
hearing, the rtc dismissed d’s petition, whereupon p immediately moved for the
execution of the judgment in his favor. Should p’s motion be granted? Why?
(3%)

B. Rolando 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 petitioner on the ground that rolando failed to
prove the psychological incapacity of his wife. The judgment having become
final, rolando filed another petition, this time on the ground that his marriage to
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

carmela had been celebrated without a license. Is the second action barred by
the judgment in the first? Why?(2%)

Suggested answer:

. P’s immediate motion for execution of the judgment in his favor should be
granted because the dismissal of d’s petition for relief also dissolves the writ of
preliminary injunction staying the enforcement of the judgment, even if the
dismissal is not yet final. [ golez vs. Leonidas, 107 scra 187 (1981) ].

. No, the second action is barred by the judgment in the first because they are
different causes of action. The first is for annulment or marriage on the ground of
psychological incapacity under article 36 of the family code, while the second is
for declaration on nullity of the marriage in view of the absence of a basic
requirement, which is a marriage license. [arts. 9 and 35(3), family code]. They
are different causes of action because the evidence required to prove them are
not the same. [ pagsisihan vs. Ca, 95 scra 540 (1980) and other cases ].

QUESTION(1998):
What are the grounds for the annulment of a judgment of the Regional Trial Court
(RTC)?

SUGGESTED ANSWERS:

1. The grounds for annulment of judgment of the Regional Trial Court are
extrinsic fraud and lack of jurisdiction. (Sec. 2, Rule 47, 1997 Rules of Civil
Procedure.)

RULE 52: MOTION FOR RECONSIDERATION

Motion for reconsideration (2016)

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Miguel filed a complaint for damages against jose, who denied liability and filed a
motion to dismiss on the ground of failure to state a cause of action. In an order
received by jose on january 5, 2015, the trial court denied the motion to dismiss. On
february 4, 2015, jose sought reconsideration of that order through a motion for
reconsideration. Miguel opposed the motion for reconsideration on the ground that it
was filed out of time. Jose countered that the 15-day rule under section 1 of rule 52
does not apply where the order sought to be reconsidered is an interlocutory order that
does not attain finality. Is jose correct? Explain. (5%)
Suggested answer
No. Jose is not correct. While jose’s reliance on section 1 of rule 52 is misplaced
because the said rule applies only to cases pending before the court of appeals, his
argument that the fifteen day rule does not apply because the order sought to be
reconsidered is an interlocutory order that has basis in jurisprudence. In denso
philippines, inc. V. The intermediate appellate court (g.r. No. 75000. February 27, 1987),
the supreme court held that a motion for reconsideration of an interlocutory order is not
subject to the usual limiting fifteen-day period of appeal prescribed for final judgments
and orders. Be that as it may, since the motion for reconsideration is a condition sine
qua non for the filing of a petition for certiorari which is the appropriate remedy, the
same can be filed not later than sixty (60) days from notice of the denial of the motion to
dismiss; otherwise, a legal aberration would ensue where a party who has merely 60
days from notice of an adverse interlocutory order to interpose a special civil action for
certiorari would be allowed a longer period to move for reconsideration of such order.
Consequently, since jose’s motion for reconsideration was filed 31 days after he
received the order denying his motion to dismiss, the same was still filed on time.
Another suggested answer
No. Jose is not correct. Rule 52 applies only to motions for reconsideration of judgments
or final resolutions of the court of appeals in appealed cases. This case, however,
involves proceedings before the trial court. Under section 1, rule 37 of the rules of court,
the period to file a motion for reconsideration shall be within the period for taking an
appeal, which under section 3, rule 41, should be made within fifteen (15) days from
notice of the assailed order. Applying the foregoing, jose should have filed his motion for
reconsideration within 15 days from january 5, 2015, or until january 20, 2015. Clearly,
jose’s motion for reconsideration was filed out of time.

Question no. 10 (1996)

1) is the failure to file a motion for reconsideration in the lower court as a
condition precedent for the granting of the writ of certiorari or prohibition always
fatal?
Explain.
No, because there are exceptions, such as the following:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a) The question of jurisdiction was squarely raised before and decided by

the respondent court.
b) Public interest is involved.
c) Case of urgency.
d) Order is patent nullity.
e) Issue is purely of law.
f) Deprivation of right to due process. (conchinyan versus cloribel, 76
scra 361; palea vs. Pal, 111 scra 215)

Provisional remedies

QUESTION (1997)

What are the provisional remedies under the rules?

SUGGESTED ANSWERS:

The provisional remedies under the rules are preliminary attachment, preliminary
injunction, receivership, replevin and support pendente lite. (Rule 57 to 61, Rules of
Court).

Question no. 9 (1996)

1) What is the purpose of provisional remedies?

The purpose of provisional remedies is to preserve or protect the
rights or interests of the parties during the pendency of the principal
action. (colo vs. Roldan, 76 phil. 445)
2) A sold five thousand piculs of sugar to b. Payable on demand. Upon delivery of
the sugar to b, owever, the latter did not pay its purchase price. After the lapse
of sometime from the date of delivery of the sugar to b. A brought an action for
the rescission of the contract of sale and as incident of this action, asked for the
manual delivery (replevin) of the sugar to him.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

May the remedy of replevin prayed for by a be granted? Explain.

Yes, because a-ls entitled to recover possession of the sugar upon the
filing of the necessary affidavit and bond in double the value of the
property.
Alternative answer:

No. Because a must state in his affidavit that he is the owner of the property
claimed or entitled to the possession thereof. Upon delivery of the sugar to b.
Ownership thereof was transferred to him. The failure of e b to pay the purchase
price did not affect the transfer of ownership. Since a is not the owner of the
sugar, replevin should not be granted.
3) Abc cattle corporation is the holder of a pasture lease agreement since 1990
covering 1.000 hectares of pasture land surrounded with fences. In 1992, d was
issued a pasture lease agreement covering 930 hectares of land adjacent to
abc's. A relocation survey showed that the boundaries of d's land extended 580
hectares into abc's pasture land. Thereupon, d. Removed abc's fence and
started to set up his own boundary fence 580 hectares into abc's pasture area.
As abc persistently blocked d's advances into its property. D filed a complaint
with preliminary injunction to enjoin abc from restricting him in the exercise of
his lease rights.
If you were the judge, would you issue a preliminary injunction?
Explain.
No. Because a preliminary injunction may not be issued to take property out of
the possession and control of one party and place it in the control of another
whose right has not been clearly established.
4) In a case for sum of money, the trial court granted ex-parte the prayer for
issuance of a writ of preliminary attachment. The writ was immediately
implemented by the sheriff. The defendant filed a motion to discharge the writ
of preliminary attachment on the ground that it was issued and implemented
prior to service of summons. Plaintiff’s opposed arguing that under the rules of
court. The writ can be applied for and granted at the commencement of the
action or at any time thereafter. Many event, plaintiff argues that the summons
which was eventually served cured whatever irregularities that might have
attended the enforcement of the writ.
How would you rule on the conflicting contentions of the parties?
The issuance of the writ of preliminary attachment ex-parte was valid but
the implementation thereof was not effective without the service of summons.
The subsequent service of summons did not cure the irregularities that
attended the enforcement of the writ. The writ of attachment should be re-
served after the service of summons. (davao light and power co., inc. Vs.
Court of appeals. 204 scra 343f (mate vs. Abrogar. 241 scra 659)

Rule 57 preliminary attachment

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Preliminary attachment (2018)

On february 3, 2018, danny delucia, sheriff of the rtc of makati, served the order
granting the ex-parte application for preliminary attachment of dinggoy against dodong.
The order, together with the writ, was duly received by dodong. On march 1, 2018, the
sheriff served upon dodong the complaint and summons in connection with the same
case. The counsel of dodong filed a motion to dissolve the writ.
(a) can the preliminary attachment issued by the court in favor of dinggoy be
dissolved? What ground/s can dodong's counsel invoke? (2.5%)
Suggested answer:
Yes, the preliminary attachment issued by the court in favor of dinggoy can be
dissolved because the enforcement thereof was improper.
In torres, et al. V. Satsatin, et. Al. (g.r. No. 166759, 25 november 2009), the
supreme court ruled that once the implementation of a writ of preliminary
attachment commences, the court must have acquired jurisdiction over the
defendant, for without such jurisdiction, the court has no power and authority to act
in any manner against the defendant. Thus, it is indispensable not only for the
acquisition of jurisdiction over the person of the defendant, but also upon
consideration of fairness, to appraise the defendant of the complaint against him
and the issuance of a writ of preliminary attachment and the grounds therefor that
prior or contemporaneously to the serving of the writ of attachment, service of
summons, together with a copy of complaint, the application for attachment, the
applicants affidavit and bond, and the order must be served upon him.
In this case, since copies of the complaint and summons were served after the writ
of preliminary attachment was served upon dodong, the writ of preliminary
attachment may be dissolved.
(b) if dodong posts a counter bond, is he deemed to have waived any of his claims
for damages arising from the issuance of the order and writ of attachment? (2.5%)
Suggested answer:
No, the posting of a counter-bound does not amount to waiver of his claim for
damages arising from the issuance of the order and the writ of attachment. The
counter-bond and a claim for damages pertain to two (2) different aspects in the
issuance and implementation of a writ of preliminary attachment.
A counter-bond posted by the person against whom the writ of preliminary
attachment was issued, doest not answer for damages on account of the lifting of
the attachment, but for the payment of the amount due under the judgment that
may be recovered by an attaching creditor. The counter-bond stands “in place of
the properties so released.” (dizon v. Valdes, et.al., g.r. No. L-23920, 25 april 1968)
On the other hand, a claim for damages by the person against whom the writ of
preliminary attachment was issued is governed by rule 57, section 20 of the rules
of court which states that “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
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

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.”
Considering that the rules of court provided different purposes for the filing of a
counter-bond and the filing of claim for damages, dodong’s posting of a counter-
bond cannot be deemed a waiver of his claim for damages.

Writ of priliminary attachment (2014)

Bayani, an overseas worker based in dubai, issued in favor of agente, a special power
of attorney to sell his house and lot. Agente was able to sell the property but failed to
remit the proceeds to bayani, as agreed upon. On his return to the philippines, bayani,
by way of a demand letter duly received by agente, sought to recover the amount due
him. Agente failed to return the amount as he had used it for the construction of his own
house. Thus, bayani filed an action against agente for sum of money with damages.
Bayani subsequently filed an ex-parte motion for the issuance of a writ of preliminary
attachment duly supported by an affidavit. The court granted the ex-parte motion and
issued a writ of preliminary attachment upon bayani’s posting of the required bond.
Bayani prayed that the court’s sheriff be deputized to serve and implement the writ of
attachment. On november 19, 2013, the sheriff served upon agente the writ of
attachment and levied on the latter’s house and lot. On november 20, 2013, the sheriff
served on agente summons and a copy of the complaint. On november 22, 2013,
agente filed an answer with motion to discharge the writ of attachment alleging that at
the time the writ of preliminary attachment was issued, he has not been served with
summons and, therefore, it was improperly issued. (4%)

(a) is agent correct?

Suggested answer:

No, agente is not correct.

Section 2. Rule 57 provides that a writ of attachment may be issued ex parte or upon
motion with notice and hearing by the court in which the action is pending.

Under the rules, the applicant of the writ is only required to (i) submit an affidavit; and (ii)
post a bond before the court can validly issue the writ of attachment. The rules do not
require prior service of summons for the proper issuance of a writ of attachment (sofia
torres v. Nicanor satsatin, g.r. No. 166759, november 25, 2009).

Accordingly, the issuance of the writ of attachment is valid notwithstanding the absence
of a prior service of summons to agente.

(b) was the writ of preliminary attachment properly executed?

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

No. The writ of preliminary attachment was not properly executed.

Although a writ of attachment may issue even before summons is served upon the
defendant, the same, however, may not bind and affect the defendant until jurisdiction
over his person is obtained (davao light and power co., inc. V. Court of appeals, g.r. No.
93262, december 29, 1991, 204 scra 343).

Thus, the writ of preliminary attachment must only be served simultaneously or at least
after the service of summons to the defendant (sofia torres v. Nicanor satsatin, g.r. No.
166759, november 25, 2009).

Alternative answer:

No. The writ of attachment was not properly executed. Under section 2 of rule 57, the
court may only require the sheriff of the court to attach so much of the property in the
philippines of the party against whom it is issued, not exempt from execution.

In the case, the sheriff attached the house and agente which is exempted from
attachment and execution (section 13, rule 39 of the rules of court.

2012

Attachment; kinds of attachment

Briefly discuss/differentiate the following kinds of attachment: preliminary attachment,

garnishment, levy on execution, warrant of seizure and warrant of distraint and levy.
(2012)

Suggested answer:

Preliminary attachment is provisional remedy under 57 of the rules of court. It may be

sought at the commencement of an action or at any time before entry judgment where
property of an adverse party may be attached as security for the security of satisfaction
of any judgment, where this adverse party is about to depart from the philippines, where
he has intent to defraud or has committed fraud, or is not found in the philippines. An
affidavit and a bond is required before the preliminary issues. It is discharged upon the
payment of a counterbond.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Garnishment is a manner of satisfying or executing judgment where the sheriff may levy
debts, credits, royalties, commissions, bank deposits, and other personal property not
capable of manual delivery that are in the control or possession of third person and are
due the judgment obligor. Notice shall be served on third parties. The third party
garnishee must make a written report on whether or not the judgment obligor has
sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall
state how much fund or credit the garnishee holds for the judgment obligor. Such
garnish amounts shall be deliver to the judgment obligee-creditor [rule 39, sec. 9 (c)].

Levy on execution is a manner of satisfying or executing judgment where the sheriff

may sell property of the judgment obligor if he is unable to pay all or part of the
obligation in cash, certified bank check or any other manner acceptable to the obligee. If
the obligor does not choose which among his property may be sold, the sheriff shall sell
personal property first and then real property second. He must only so much of the
personal or real property as is sufficient to satisfy judgment and other law fees [rule 39,
sec. 9 (b)].

Warrant of seizure is normally applied for, with a search warrant, in criminal cases. The
warrant of seizure must particularly describe the things to be seized. While it is true that
the property to be seize under a warrant must be particularly describe therein and no
other property can be taken thereunder, yet the description is required to be specific
only insofar as the circumstances will ordinarily allow. An application for search and
seizure warrant shall be filed with the following: (a) any court within whose territorial
jurisdiction a crime was committed, (b) for compelling reasons stated in the application,
any court within the judicial region where the crime was committed if the place of the
commission of the crime is known, or any court where the judicial region where the
warrant shall be enforced. However, if the criminal action has already been filed, the
application shall only be made in the court where the criminal action is pending.

Warrant of distraint and levy is remedy available to local governments and the bir in tax
cases to satisfy the deficiency or delinquencies in inheritance and estate taxes, and real
estate taxes. Distraint is the seizure of personal property to be sold in an authorized
auction sale. Levy is the issuance of a certification by the proper officer showing the
name of the taxpayer and the tax, fee, charge or penalty due him. Levy is made by
writing upon said certificate the description of the property upon which the levy is made.

Attachment; preliminary attachment

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

A sues b for collection of a sum of money. Alleging fraud in the contracting of the loan, a
applies for preliminary attachment with the court. The court issues the preliminary
attachment after a files a bond. While summons on b was yet unserved, the sheriff
attached b's properties. Afterwards, summons was duly served on b. 8 moves to lift the
attachment. Rule on this. (2012)

Suggested answer:

I will grant the motion since no levy on attachment pursuant to the writ shall be enforced
unless it is preceded or contemporaneously accompanied by service of summons.
There must be prior or contemporaneous service of summons with the writ of
attachment (rules 57, sec. 5, rules of court).

2008

Attachment; bond

After his properties were attached, defendant porfirio filed a sufficient counterbond. The
trial court discharged the attachment. Nonetheless, porfirio suffered substantial
prejudice due to the unwarranted attachment. In the end, the trial court rendered a
judgment in porfirio's favor by ordering the plaintiff to pay damages because the plaintiff
was not entitled to the attachment. Porfirio moved to charge the plaintiff's attachment
bond. The plaintiff and his sureties opposed the motion, claiming that the filing of the
counterbond had relieved the plaintiff's attachment bond from all liability for the
damages. Rule on porfirio's motion. (2008)

Suggested answer:

Porfirio’s motion to charge plaintiff’s attachment bond is proper and can be

granted. It is not correct to contend that profirio’s filling of a counterbond constitutes a
waiver of his right to proceed against the attachment bond for the damages he suffered
from the unwarranted attachment. It is a condition inter alia of the applicant’s
attachment bond that he will pay all the costs which may be adjudged to the adverse
party and all damages which the latter may sustain by reason of the attachment, if the
court shall finally adjudge that the applicant was not entitled thereto (sec. 44, rule 57,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

rules of court; d.m wenceslao and associates, inc. V. Readycon trading and
construction corp., 433 scra 251 [2004]).

Attachment; garnishment

a. The writ of execution was returned unsatisfied. The judgment obligee

subsequently received information that a bank holds a substantial deposit
belonging to the judgment obligor. If you are the counsel of the judgment
obligee, what steps would you take to reach the deposit to satisfy the
judgment?
b. If the bank denies holding the deposit in the name of the judgment obligor but
your client's informant is certain that the deposit belongs to the judgment
obligor under an assumed name, what is your remedy to reach the deposit?
(2008)

Suggested answer:

(a) since a writ of execution is valid for five years from its issuance, the sheriff
should be informed and requested to garnish or levy on execution the bank deposits
belonging to the judgement obligor (sec. 9[c], rule 39, rules of court). Then the judgment
creditor move for a court order directing the application of suck bank deposits to the
satisfaction of the judgment (sec. 40, rule 39, rules of court).

(b) to reach the bank deposits belonging to the judgment obligor but under an
assumed name, a motion may be filed for a court order requiring the proper bank officer
to appear in court for examination under oath as to such bank, and subsequently move
for a court order authorizing the filing of an action against such bank for the recovery of
the judgment obligor’s deposit/interest therein and to forbid a transfer or other
disposition of such deposit/ interest within 120 days from notice of the order (secs. 27,
rule 43, rule 39, rules of courts.

Question (2002)

A. The plaintiff obtained a writ of preliminary attachment upon a bond of p1 million.

The writ was levied on the defendant’s property, but it was discharged upon the
posting by the defendant of a counter bond in the same amount of p1 million.
After trial, the court rendered judgment finding that the plaintiff had no cause of
action against the defendant and that he had sued out the writ of attachment
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

maliciously. Accordingly, the court dismissed the complaint and ordered the
plaintiff and its surety to pay jointly to the defendant p1.5 million as actual
damages, p 0.5 million as moral damages and p0.5 million as exemplary
damages.

evaluate the soundness of the judgment from the point of view of procedure.
(5%)

B. The trial court rendered judgment ordering the defendant to pay the plaintiff
moral and exemplary damages. The judgment was served on the plaintiff on
october 5, 2001. On october 8, 2001, the defendant filed a notice of appeal from
the judgment, but the following day, october 9, 2001, the plaintiff moved for the
execution of the judgment pending appeal. The trial court granted the motion
upon the posting by the plaintiff of a bond to indemnify the defendant for
damages it may suffer as a result of the execution. The court gave as a special
reason for its order the imminent insolvency of the defendant. Is the order of
execution pending appeal correct? Why? (5%)

Suggested answer:

A. The judgment against the surety is not sound if due notice was not given to him
of the application for damages. (rule 57, sec. 20).

moreover, the judgment against the surety cannot exceed the amount of its
counterbond of p1 million.

. No, because awards for moral and exemplary damages cannot e the subject of
execution pending appeal. The execution of any award for moral and exemplary
damages is dependent on the outcome of the main case. Liabilities for moral and
exemplary damages, as well as the exact amounts remain uncertain and
indefinite pending resolution by the court of appeals or supreme court, inc. (rcpi
vs. Lantin, 14 scra 395 (1985); international school, inc. Vs. Ca, 309 scra 474
(1999).

Alternative answer:

. Yes, because only moral and exemplary damages are awarded in the judgment
and they are not dependent on other types of damages.

moreover, the motion for execution was filed while the court had jurisdiction over
the case and was in possession of the original record.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

it is based on good reason which is the imminent insolvency of the defendant.

(rule 9, sec. 2).

May a writ of preliminary attachment be issued ex parte? Briefly state the

reason(s) for your answer. (2001)

Suggested Answer:

Yes, an order of attachment may be issued ex parte or upon motion

with notice and hearing. (Sec. 2 of Rule 57, Rules of Civil Procedure) The
reason why the order may be issued ex parte is: that requiring notice to the
adverse party and a hearing would defeat the purpose of the provisional
remedy and enable the adverse party to abscond or dispose of his property
before a writ of attachment issues. (Mindanao Savings and Loan
Association, Inc. v. Court of Appeals, 172 SCRA 480).

QUESTION (1997)

Distinguish attachment from garnishment.

Suggested answer:

Attachment and garnishment are distinguished from each other as follows:

Attachment is a provisional remedy that effects a levy on property of a party as
security for the satisfaction of any judgment that may be recovered, while
garnishment is a levy on debts due the judgment obligor or defendant and other
credits, including bank deposits, royalties and other personal property not
capable of manual delivery under a writ of execution or a writ of attachment.

QUESTION (1997)

In case, the property of an incompetent under guardianship was in custodia legis.

Can it be attached?

Suggested answer:
Although the property of an incompetent under guardianship is in custodia
legis, it may be attached as in fact it is provided that in such case, a copy of the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

writ of attachment shall be filed with the proper court and notice of the
attachment served upon the custodian of such property. (Sec. 7, last par., Rule
57, 1997 Rules of Civil Procedure.)

QUESTION (1997)

May damages be claimed by a party prejudiced by a wrongful attachment even if

the judgment is adverse to him? Explain.

Suggested answer:

Yes, damages may be claimed by a party prejudiced by a wrongful

attachment even if the judgment is adverse to him. This is authorized by the
Rules. A claim for damages may be made on account of improper, irregular or
excessive attachment, which shall be heard with notice to the adverse party and
his surety or sureties. (Sec. 20, Rule 57, 1997 Rules of Civil Procedure; Javellana
v. D.O. Plaza Enterprise Inc., 32 SCRA 281.)

On may 2, 1992, precision, inc. Filed a verified complaint for recovery of sum of
money against summa, inc. The complaint contained an ex-parte application for a writ of
preliminary attachment.
On may 3, 1993, the trial court issued an order granting the ex-parte application and
fixing the attachment bond at p2 million.
On may 8, 1992, the attachment bond having been submitted by precision, inc. The
writ preliminary attachment was issued.
On may 9, 1992, summons together with a copy of the complaint, the writ of
preliminary attachment and a copy of the attachment bond, was served on summa, inc.
And pursuant to the writ, the sheriff attached properties belonging to summa, inc.
On july 6. 1992. Summa, inc. Filed a motion to discharge the attachment
for alleged lack of jurisdiction to issue the same because, at the time the order of
attachment and the writ of preliminary attachment were issued (on may 3 and 8.
1992. Respectively), the court had not yet acquired jurisdiction over the person of
summa. Inc. It argued that a writ of preliminary attachment may not issue ex-parts
against a defendant before acquisition of jurisdiction over the latter's person by service
of summons or his voluntary submission to the court's authority. •
Should the motion be granted? Why? (1993)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Answer:

No. Because a writ of preliminary attachment may be issued ex-parte against a

defendant before acquisition of jurisdiction over the latter's person by service of
summons or his voluntary submission to the court’s authority. Sec. 1 of rule 57
provides that the remedy may be granted at the commencement of the action or
at any time thereafter. However, the writ does not bind and affect the defendant
until and unless jurisdiction over his person is eventually obtained by the court.
Hence, when the summons, together with a copy of the complaint, the writ of
preliminary attach-ment and a copy of the attachment bond, was served on the
defendant, the sheriff validly attached properties belonging to summa. Inc. (davao
light & power co.. Inc. W. Court of appeals. 204 scra 343: quarter° us. Court of
appeals. 212 scra 260)
57. Upon failure of x to to pay the promissory note for p100,000.00 which he executed
in favor of y, the latter filed a complaint for a sum of money with the application for
the issuance of writ of preliminary attachment alleging therein that x is about to
dispose of his properties in fraud of his creditors.
a. May the court issue the writ immediately upon the filing of the
complaint and before service of summons?
b. If service of summons is indispensable before the writ may be issued,
is hearing on the application necessary?
c. If the writ was issued and x filed a motion to quash the attachment,
may the motion be granted ex-parte? (1991)

Suggested answer:

a. Yes, because sec. 1 of rule 57 provides that a writ of preliminary

attachment may be obtained at the commencement of the action.
b. No, because a writ of preliminary attachment may be issued ex-parte.
(toledo v. Judge burgos, 164 scra 513; cosiquien v. Ca, 188 scra 619)
c. No, because whether the basis of the motion to quash the attachment is a
cash deposit or counterbond on the ground that the same was improperly
or irregularly issued, a hearing was necessary. (secs. 12 and 13 or rule
57; mindanao savings & loan association v. Ca, 172 scra 480)

Alternative answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a. In the case of sievert v. Ca, 168 scra 692, it was ruled that a hearing on
the application for a writ of preliminary attachment may not be held without
a prior service of summons.

58. On june 18, 1989, mario reyes executed a promissory note for p50,000.00
payable to norma alajar not later than june 18, 1990. Mario reyes defaulted in the
payment of the promissory note and a collection suit was filed against him before
the regional trial court of quezon city.

After the complaint had been filed, norma alajar discovers that mario reyes
petition for the issuance of an immigrant visa was approved by the united states
embassy, and that mario reyes had been disposing of all his properties.
What remedy may be availed of by norma alajar to protect her interest? Explain
your answer. (1990)

Suggested answer:

Norma alajar should file a verified application for the issuance of a writ of
preliminary attachment on the ground that mario reyes is about to depart from the
philippines and had been disposing of all his properties with the intent to defraud
his creditors. (sec. 1(a) and (e) of rule 57).

59. C, with d as bondsman, secured the attachment of the properties of defendant, x,

who by filing a counterbond, had the attachment dissolved.
Defendant x after judgment was rendered in his favor now holds d liable on his
bond for the damages he (x) suffered for the unwarranted suit and the wrongful
and malicious attachment.
D moves to dismiss the damage suit on the ground that the dissolution of the
attachment rendered the attachment bond void and ineffective under section 12
of rule 57, which provides that upon the filling of the counterbond, the
attachment is discharged or dissolved.
(a) Decide the case with reasons.
(b) Who may issue an order of attachment and what are the contents of such an
order. (1988)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

(a) If the claim for damages was made in the same action before the judgment
become final and executor, i would deny the motion to dismiss the claim for
damages, because the dissolution of the attachment by the filing of a
counterbond does not invalidate the attachment bond, which remains liable for
damages suffered by reason of the wrongful attachment. (calderon vs. Iac,
nov. 11, 1987; del rosario vs nava, 95 phil. 637)
However, if the claim for damages was made in a separate action (which the
question seems to imply because of the words “damage suit”), i would grant
the motion to dismiss, because such a claim can only be made in the same
action. (section 20 of rule 57; pioneer insurance & surety co, vs hontanosas,
78 scra 447)
(b) An order of attachment may be granted by the judge of any court in which the
action is pending, or by a justice of the ca or the sc, and must require the
sheriff or other proper officer of the province to attach all the property of the
party against whim it is issued within the province not exempt from execution,
or so much thereof as may be sufficient to satisfy the applicant’s demand, the
amount of which must be stated in the order, unless such party makes deposit
or gives bond as hereinafter provided in an amount sufficient to satisfy such
demand, besides costs, or in an amount equal to the value of the property
which is about to be attached. Several orders may be issued at the same time
to the sheriffs or other proper offices of different provinces.

Rule 58 preliminary injunction

2009

Injunction; preliminary injunction

A suit for injunction is an action in rem. (2009)

Suggested answer:

False. A suit for injunction is an action in personam. In the early case of auyong hian v.
Court of tax appeals (59 scra 11011974j), it was held that a restraining order, like an
injunction, operates upon a person. It is granted in the exercise of equity jurisdiction and
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

has no in rem effect to invalidate an act done in contempt of an order of the court except
where by statutory authorization, the decree is so framed as to act in rem on property.
(air materiel wing savings and loan association, inc. V. Manay, 535 scra 356 [2007]).

Question: (2006)

what are the requisites for the issuance of (a) a writ of preliminary injunction; and
(b) a final writ of injunction? (2.5%)

Suggested answer:

the requisites for the issuance of a writ of preliminary injunction are: (1) right in
esse or a clear and unmistakable right to be protected; (2) a violation of that right; (3)
that there us an urgent and permanent act and urgent necessity for the writ to prevent
serious damage (tayag v lacson, 426 scra 282 [2004]).

a final writ of injunction may be granted if after trial of the action, it appears that
the applicant is entitled to have the act or acts complained of permanently enjoined.
(sec 9, rule 58)

Question: (2006)

distinguish between injunction as an ancillary remedy and injunction as a main

action.

Suggested answer:

injunction as an ancillary remedy presupposes the existence of a principal or a

main action. (vallangca v. Ca, 173 scra 42 [1989]. Its main function is to preserve the
status quo until the merits can be heard and resolved. (urbanes v. Ca, 335 scra 537
[2001]).

on the other hand, an injunction as the main action is brought specifically to

obtain a judgment perpetually restraining or commanding the performance of an act
after trial. (del mar v. Pagcor, 346 scra 485 [2000]
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Question: (2006)

define a temporary restraining order.

Suggested answer:

a temporary restraining order is an interlocutory order issued to preserve the

status quo, and is granted to a party until the hearing of the application for preliminary
injunction (rule 58)

Question: (2006)

may a regional trial court issue injunction without bond?

Suggested answer:

yes, if the injunction issues is a final injunction. Generally, however, a preliminary

injunction may not be issued without posting a bond, unless exempted by the trial court.
(rule 58)

Question: (2006)

what is the duration of a tro issue by the executive judge of the regional trial
court?

Suggested answer:

the duration of the tro issued by the executive judge of a regional trial court is
seventy two (72) hours from issuance, which is issued only if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury and the
duration of the tro issued by him as the judge assigned to the case, may be effective for
a total of twenty (20) days including the period of 72 hours.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Question: (2006)

differentiate a tro from a status quo order.

Suggested answer:

a temporary restraining order is issued upon application of a party and upon the
posting of the required bond. On the other hand, a status quo order may be issued motu
proprio on equitable considerations and does not require posting of a bond. Unlike a
temporary restraining order or a preliminary injunction, a status quo order is more in the
nature of a cease and desist order, since it neither directs the doing or undoing of acts
as in the case of prohibitory or mandatory injunctive relief.

Question: (2006)

may a justice of a division of the court of appeals issue a tro?

Suggested answer:

yes. A justice of a division of the court of appeals may issue a tro, as authorized
under rule 58 and by section 5, rule iv of the internal rules of the court of appeals (irca)
which additionally requires that the action shall be submitted on the next working day to
the absent members of the division for their ratification, modification or recall. (heirs of
the late justice jose b.l. Reyes v. Court of appeals, 338 scra 282 [2000]).

Question: (2003)

a filed with the metropolitan trial court of manila an action for specific
performance against b, a resident of quezon city, to compel the latter to execute a deed
of conveyance covering a parcel of land situated in quezon city having an assessed
value of p19,000.00. B received the summons and a copy of the complaint on 02
january 2003. On 10 january 2003, b filed a motion to dismiss the complaint on the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

ground of lack of jurisdiction contending that the subject matter of the suit was incapable
of pecuniary estimation. The court denied the motion. In due time, b filed with the
regional trial court a petition for certiorari praying that the said order be set aside
because the metropolitan trial court had no jurisdiction over the case.

on 13 february 2003, a filed with the metropolitan trial court a motion to declare b
in default. The motion was opposed by b on the ground that his petition for certiorari
was still pending. (6%)

A. Was the denial of the motion to dismiss the complaint correct?

B. Resolve the motion to declare the defendant in default

Suggested answer:

A. The denial of the motion to dismiss the complaint was not correct. Although the
assessed value of the parcel of land involved was p19,000.00, within the
jurisdiction of the metropolitan trial court of manila, the action filed by a for
specific performance against b to compel the latter to execute a deed of
conveyance of said parcel of land – was not capable of pecuniary estimation
and, therefore, the action was within the jurisdiction of regional trial court. (russel
v. Vestil, 304 scra 738 [1999]; copioso v. Copioso, gr no. 149243, october 28,
2002; cabutihan v. Landcenter construction, 383 scra 353 [2002])

Alternative answer:

. If the action affects title to or possession of real property then it is a real action
and jurisdiction is determined by the assessed value of the property. It is within
the jurisdiction therefore of the metropolitan trial court.

Suggested answer:

. The court could declare b in default because b did not obtain a writ of
preliminary injunction or a temporary restraining order from the regional trial
court prohibiting the judge from proceeding in the case during the pendency of
the petition for certiorari. (sec. 7 of rule 65; diaz v. Diaz, 331 scra 302 [2000]).

Alternative answer:

. The court should not declare b in default inasmuch as the jurisdiction of

metropolitan trial court was put in issue in the petition for certiorari filed with the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

regional trial court. The metropolitan trial court should defer further proceedings
pending the result of such petition. (eternal gardens memorial park corporation
v. Court of appeals, 164 scra 421 [1998]).

QUESTION(2001):

An application for a writ of preliminary injunction with a prayer for a temporary

restraining order is included in a complaint and filed in a multi-sala Regional Trial Court
consisting of Branches 1,2,3, and 4. Being urgent in nature, the Executive Judge, who
was sitting in Branch 1, upon the filling of the aforesaid application immediately raffled
the case in the presence of the judges of Branches 2, 3 and 4. The case was raffled to
Branch 4 and the judge thereof immediately issued a temporary restraining order.

Is the temporary restraining order valid? Why?

SUGGESTED ANSWER:
No. It is the Executive Judge who can issue immediately a temporary
restraining order effective only for seventy-two (72) hours from issuance. No
other Judge has the right or power to issue a temporary restraining order ex
parte. The Judge to whom the case is assigned will then conduct a summary
hearing to determine whether the temporary restraining order shall be extended,
but in no case beyond 20 days, including the original 72-hour period. (Sec 5 of
Rule 58, 1997 Rules of Civil Procedure)

ALTERNATIVE ANSWER:

The temporary restraining order is not valid because the question

does not state that the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury. (Sec. 5 of Rule 58, 1997 Rules of Civil
Procedure)
May a writ of preliminary injunction be issued ex parte? Why?

Suggested Answer:

No, a writ of preliminary injunction may not be issued ex parte. As provided

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

in the Rules, no preliminary injunction shall be granted without hearing and

prior notice to the party or person sought to be enjoined. (Sec. 5 of Rule 58,
1997 Rules of Civil Procedure) The reason is that a preliminary injunction
may cause grave and irreparable injury to the party enjoined.

QUESTION(2000):

JK’s real property is being attached by the sheriff in a civil action for damages against
LM. JK claims that he is not a party to the case; that his property is not involved in said
case; and that he is the sole registered owner of said property. Under the Rues of
Court, what must JK do to prevent the Sheriff from attaching his property?

Suggested answer:
If the real property has been attached, the remedy is to file a third-party
claim. The third-party claimant should make an affidavit of his title to the property
attached stating the grounds of his title thereto, and serve such affidavit upon the
sheriff while the latter has possession of the attached property, and a copy
thereof upon the attaching party. (Sec. 14, Rule 57, Rules of Civil Procedure). The
third-party claimant may also intervene or file a separate action to vindicate his
claim to the property involved and secure the necessary reliefs, such as
preliminary injunction, which will not be considered as interference with a court
of coordinate jurisdiction. (Ong v. Tating, 149 SCRA 265)

60. What is the life span of a temporary restraining order issued by a trial court? May
this life span be extended? Explain fully. (1989)

Suggested answer:

The life span of a temporary restraining order or tro is twenty days. This life span
may not be extended.
A preliminary injunction may no longer be granted without notice to the adverse
party. However, if it appears that great or irreparable injury would result to the
applicant before his application for preliminary injunction could be heard on
notice, the judge may issue a tro with a limited life spanof twenty days from date
of issue. If no preliminary injunction is granted within said period, the tro would
automatically expire on the 20th day. If before the expiration of the 20-day period,
the preliminary injunction is denied, the tro would also be deemed automatically
vacated. (sec. 5 of rule 5 as amended by bp 224; dionisio vs. Cfi of south
cotabato, 124 scra 222)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

61. A. What is a temporary restraining order?

B. How does it differ from a writ of preliminary injunction?
C. What is the duration of a tro issued by (i) rtc, (ii) the ca, (iii) the supreme
court? (1988)
Suggested answer:

(a) A tro is an order to maintain the subject of the controversy in status quo until
hearing of an application for preliminary injunction can be held. (board of
transportation v castro, 125 scra 410)
(b) A writ of preliminary injunction cannot be granted without notice to te defendant
or adverse party, whereas a tro may be issued if it shall appear from the facts
shoen by affidavits or by the verified complaint that great and irreparable injury
would result to the applicant before the matter can be heard on notice. (bp 224)
A writ of preliminary injunction requires a bond to be filed by the applicant,
whereas a tro does not.
(c) Rtc – 20 days (bp 224)
Ca – 20 days (delbros corp vs iac april 12, 1988)
Sc- no time limit.

RULE 59: Receivership

QUESTION(2001):
Joaquin filed a complaint against Jose for the foreclosure of a mortgage of a
furniture factory with a large number of machinery and equipment. During the pendency
of the foreclosure suit, Joaquin learned from reliable sources that Jose was quietly and
gradually disposing of some of his machinery and equipment to a businessman friend
who was also engaged in furniture manufacturing such that from confirmed reports
Joaquin gathered, the machinery and equipment left with Jose were no longer sufficient
to answer for the latter’s mortgage indebtedness. In the meantime, judgment was
rendered by the court in favour of Joaquin but the same is not yet final.

Knowing what Jose has been doing, if you were Joaquin’s lawyer, what action
would you take to preserve whatever remaining machinery and equipment are left with
Jose? Why?

SUGGESTED ANSWER:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

To preserve whatever remaining machinery and equipment are left

with Jose, Joaquin’s lawyer should file a verified application for the appointment
by the court of one or more receivers. The Rules provide that receivership is
proper in an action by the mortgage for the foreclosure of a mortgage when it
appears that the property is in danger of being wasted or dissipated or materially
injured and its value is probably insufficient to discharge the mortgage debt.
(Sec. 1[b] of Rule 59, 1997 Rules of Civil Procedure).

RULE 60 REPLEVIN

Question: (2005)

katy filed an action against tyrone for collection of the sum of p1 million in the rtc,
with an ex-parte application for a writ of preliminary attachment. Upon posting of an
attachment bond, the court granted the application and issued a writ of preliminary
attachment.

apprehensive that tyrone might withdraw his savings deposit with the bank, the
sheriff immediately served a notice of garnishment on the bank to implement the writ of
preliminary attachment. The following day, the sheriff proceeded to tyrone's house and
served him the summons, with copies of the complaint containing the application for writ
of preliminary attachment, katy's affidavit, order of attachment, writ of preliminary
attachment and attachment bond.

within fifteen (15) days from service of the summons, tyrone filed a motion to
dismiss and to dissolve the writ of preliminary attachment on the following grounds: (i)
the court did not acquire jurisdiction over his person because the writ was served ahead
of the summons; (ii) the writ was improperly implemented; and (iii) said writ was
improvidently issued because the obligation in question was already fully paid.

resolve the motion with reasons.

Suggested answer:

the fact that the writ of attachment was served ahead of the summons did not
affect the jurisdiction of the court over the defendant. The effect is that the writ is
unenforceable. (sec. 5, rule. 57, 1997 rules of civil procedure) but, as pointed out by
jurisprudence, all that is needed to be done is to re-serve the writ. (onate v. Abrogar,
gm. No. 197393, 241 scra 659 [1985]).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

the writ was improperly implemented. Serving a notice of garnishment,

particularly before summons is served, is not proper. What should be served on the
defendant are a copy of the writ of attachment and notice that the bank deposits are
attached pursuant to the writ. (sec. 7[d], rule 57, 1997 rules of civil procedure.)

the proper remedy where there is payment is a motion to dismiss under section
1 (h) rule 16. A motion to discharge on the ground that the writ was improvidently issued
will not lie, since such motion would be tantamount to trial on the merits of the action
which cannot be ventilated at a mere hearing of the motion instead of a regular trial. The
writ is only ancillary to the main case. (sec. 13, rule 57, 1997 rules of civil procedure,
mindanao savings & loans assoc., inc v c.a., 172 scra 480 [1989]; davao light & power
co. V court of appeals 204 scra 343 [1991]).

Question: (2003)

in a buy-bust operation, the police operatives arrested the accused and seized
from him a sachet of shabu and an unlicensed firearm. The accused was charged in two
informations, one for violation of the “dangerous drugs act”, as amended, and another
for illegal possession of firearms.

the accused filed an action for recovery of the firearm in another court against the
police officers with an application for the issuance of a writ of replevin. He alleged in his
complaint that he was a military informer who had been issued a written authority to
carry said firearm. The police officers moved to dismiss the complaint on the ground
that the subject firearm was in custodial egis. The court denied the motion and instead
issued the writ of replevin.

A. Was the seizure of the firearm valid?

B. Was the denial of the motion to dismiss proper?

Suggested answer:

A. Yes, the seizure of the firearm was valid because it was seized in the course of
a valid arrest in a buy-bust operation. (sec. 12 and 13 of rule 126) a search
warrant was not necessary. (people v. Salazar, 266 scra 607 [1996])

B. The denial of the motion to dismiss was not proper. The court had not authority
to issue the writ of replevin whether the firearm was in custodia legis or not. The
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

motion to recover the firearm should be filed in the court where the criminal
action is pending.
C. Mia obtained a loan to buy machineries for her garment business. She executed
a chattel mortgage over said machineries. Due to business reverses, she
defaulted in the payment of her obligation. Mario, the mortgagee, sought the
delivery of machineries so that they can be sold at foreclosure sale but mia
refused, contending that it would result in the stoppage of her business. Mario
seeks your advice regarding his problem. What is your legal opinion on the
matter?(1989)

Suggested answer:

I would advise mario either to file an action for recovery of said machineries with
an application for a writ of replevin or delivery of personal property upon the filing
of bond double the value thereof as preliminary step to an extrajudicial
foreclosure, or to file an action of judicial foreclosure of chattel mortgage.
(northern motors, inc. Vs. Herrera, 49 scra 392; rule 60; sec. 8 of rule 68)
inasmuch as mia executed a chattel mortgage, over said machineries, she would
be stopped from opposing the writ of replevin on the ground that only personal
property may be subject thereof. (makati leasig and finance corp. Vs wearever
textile mills, inc.,122 scra 296)

D. captain basaya and twenty-four sailors are the crew of f/b carribbean, a
fishing boat chartered and operated since 1977 by tuna, inc. In 1985, tuna, inc.
Transferred its operation to a sister corporation, eastship corporation.
On june 28, 1986, captain basaya and his crew informed eastship that
they would not sail the ship unless their economic demands, which they had
presented previously to tuna, inc. Were granted.
Eastship on july 8, 1986 filed with the nlrc in cebu a petition to declare the
strike by captain basaya and his crew illegal. In turn, the crew filed on august
8,1986, a complaint for unfair labor practice against tuna, inc. And eastship.
On july 9, 1986, a day after the filing of the illegal strike complaint, tuna, inc.
Also sought the remedy of replevin before the rtc praying that captain basaya
and his crew be ordered to deliver the possession of the vessel to it as their
possession was in violation of its rights.
Which court or tribunal has jurisdiction over the issue of possession of the
vessel? Explain (1988)
Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

What is Replevin?

SUGGESTED ANSWERS:

Replevin or delivery of personal property consists in the delivery, by order of the

court, of personal property by the defendant to the plaintiff, upon the filing of a bond.
(Calo v. Roldan, 76 Phil. 445 [1946]).

RULE 61: SUPPORT PINDENTE LITE

QUESTION(1997):

Modesto was accused of seduction by Virginia, a poor unemployed young girl, who has
a child by Modesto. Virginia was in dire need of pecuniary assistance to keep her child,
not to say of herself, alive. The criminal case is still pending in court and although the
civil liability aspect of the crime has not been waived or reserved for a separate civil
action, the trial for the case was foreseen to take two long years because of the heavily
clogged court calendar before the judgment may be rendered.

If you were the lawyer of Virginia, what action should you take to help Virginia in
the meantime especially with the problem of feeding the child?

SUGGESTED ANSWER:
To help Virginia in the mentime, her lawyer should apply for support
pendente lite as provided in the Rules. In criminal actions where the civil liability
includes support for the offspring as a consequence of the crime and the civil
aspect thereof has not been waived or reserved for a separate civil action, the
accused may be ordered to provide support pendent lite to the child born to the
offended party. (Sec. 6 of Rule 61, 1997 Rules of Civil Procedure)

QUESTION (1997)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Before the RTC, A was charged with rape of his 16-year old daughter.
During the pendency of the case, the daughter gave birth to a child allegedly as a
consequence of the rape. Thereafter, she asked the accused to support the child,
and when he refused, the former filed a petition for support pendente lite. The
accused, however, insists that he cannot be made to give such support arguing
that there is as yet no finding as to his guilt. Would you agree with the trial court
if it denied the application for support pendente lite? Explain.

SUGGESTED ANSWER:

No. The provisional remedy of support pendente lite may be granted by the
RTC in the criminal action for rape. In criminal actions where the civil liability
includes support for the offspring as a consequence of the crime and the civil
aspect thereof has not been waived, reserved or instituted prior to its filing, the
accused may be ordered to provide support pendente lite to the child born to the
offended party allegedly because of the crime. (Sec. 6 of Rule 61.)

RULE 62: INTERPLEADER

Interpleader (2018)
Dory enterprises inc. (dory) leased to digna corporation (digna) a parcel of land located
in diliman, quezon city. During the term of the lease, digna was informed by dbs banking
corporation (dbs) that it had acquired the leased property from the former owner dory,
and required digna to pay the rentals directly to it. Digna promptly informed dory of dbs'
claim of ownership. In response, dory insisted on its right to collect rent on the leased
property.
Due to conflicting claims of dory and dbs over the rental payments, digna filed a
complaint for interpleader in the rtc of manila. Digna prayed that it be allowed to consign
in court the succeeding monthly rentals, and that dory and dbs be required to litigate
their conflicting claims. It later appeared that an action for nullification of a dacion en
pago was filed by dory against dbs in the rtc of quezon city. In said case, dory raised the
issue as to which of the two (2) corporations had a better right to the rental payments.
Dory argued that, to avoid conflicting decisions, the interpleader case must be
dismissed.
Does the action for nullification of the dacion en pago bar the filing of the interpleader
case? (2.5%)
Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Yes. The interpleader case should be dismissed in view of the action for nullification of
the dacion en pago.
Under rule 2, section 4 of the rules of court, if two or more suits are instituted on the
basis of the same cause of action, the filing of one or a judgment upon the merits in any
one is available as a ground for dismissal of the others. In the situation above, the
interpleader case filed by digna seeks to resolve who between dory and dbs has the
right to receive the rental payments. Similarly, dory’s action for nullification of dacion en
pago will determine who between dory and dbs has the right to collect rental payment
from digna. Considering that the two cases involve the same cause of action, the
interpleader case should be dismissed.

Question: (2005)

raphael, a warehouseman, filed a complaint against v corporation, x corporation

and y corporation to compel them to interplead. He alleged therein that the three
corporations claimed title and right of possession over the goods deposited in his
warehouse and that he was uncertain which of them was entitled to the goods. After
due proceedings, judgment was rendered by the court declaring that x corporation was
entitled to the goods. The decision became final and executory.

raphael filed a complaint against x corporation for the payment of p100,000.00

for storage charges and other advances for the goods. X corporation filed a motion to
dismiss the complaint on the ground of res judicata. X corporation alleged that raphael
should have incorporated in his complaint for interpleader his claim for storage fees and
advances and that for his failure he was barred from interposing his claim. Raphael
replied that he could not have claimed storage fees and other advances in his complaint
for interpleader because he was not yet certain as to who was liable therefore.

resolve the motion with reasons.

Suggested answer:

the motion to dismiss should be granted. Raphael should have incorporated in

his complaint for interpleader his claim for storage fees and advances. They are part of
raphael's cause of action which he may not be split. The filing of the interpleader is
available as a ground for dismissal of the second case. (sec. 4, rule 2, 1997 rules of civil
procedure). It is akin to a compulsory counterclaim which, if not set up, shall be barred.
(sec. 2, rule 9, 1997 rules of civil procedure). The law also abhors the multiplicity of
suits; hence, the claim for storage fees should have been made part of his cause of
action in the interest of complete adjudication of the controversy and its incidents.
(arreza v diaz, 364 scra 88 [2001]).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Alternative answer:

the motion to dismiss should not be granted. Raphael not being a party to the
case cannot file a counter-complaint. A complaint for interpleader which is a special civil
action is merely an action for the parties to interplead among themselves. The claim for
storage fees is a separate and distinct cause of action. It is an ordinary action for
collection which cannot be joined in a special civil action. (sec. 5(b) rule 2)

QUESTION(1998):

1. What is an action for interpleader?

SUGGESTED ANSWERS:

1. An action for interpleader is a special civil action which is filed whenever

conflicting claims upon the same subject matter are or may be made
against a person who claims no interest whatever in the subject matter, or
an interest which in whole or in part is not disputed by the claimants, in
which case, he may bring the action against the conflicting claimants to
compel them to interplead and litigate their several claims among
themselves. (Sec.1, Rule 62, 1997 Rules of Civil Procedure.)

Question no. 10 (1996)

1. is the failure to file a motion for reconsideration in the lower court as a condition
precedent for the granting of the writ of certiorari or prohibition always fatal?
Explain.
Answer:
1) no. Because there are exceptions, such as the following:
A) the question dior-1st/lion was squarely raised before and decided by the
respondent court.
B) pfublic interest is involved
C) case of urgency
D) order is patent nullity el issue is purely of law
Deprivation of right to due process (cochingyan us. Ciortbel, 76 scra 361; patea us. Pal.
I i i scra 215)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

2. A was charged with the crime of kidnapping with murder. After the prosecution
rested its case, a filed a demurrer to evidence on ground of insufficiency of evidence to
sustain his conviction. The prosecution flied an opposi¬tion. The trial court dented the
demurrer and the motion for reconsideration thereafter filed. A (lied a petition for
certio¬rari with thi court of appeals alleging that the denial of the demurrer to evidence.
When there is no evidence against him, constitutes grave abuse of discretion, and
prayed that the court of appeals render judgment acquitting him.
May the trial court's denial of the demurrer to evidence be properly assailed by a petition
for certiorari in the court of appeals? Explain.
Answer:
The question does not state that a bad obtained prior leave of court to file a demurrer to
evidence. Without such leave of court, ahas waiver' his right to present evidence and
has submitted the case for judgment on the basis of the evidence for the prosecution.
(sec. 15 of rule 119)
Alternative answer:
No. Because the question of sufficiency of evidence to sustain a conviction may not be
raised in a petition for certiorari. The remedy of a is to present his evidence and in the
event of conviction to appeal. (joseph us. Viiialuz, 89 scra 824)
3. A lost the cashier's check she purchased from xyz bank. Upon being notified of the
loss. Xyz bank immediately issued a *stop payment- order. Here comes b trying to
encash that same cashiers check but xyz bank refused payment.
As precautionary measure, what remedy may xyz bank avail of with respect to the
conflicting claims of a and b over the cashier's check? Explain.
Answer:
Xyz bank may file a complaint for interpleader so that the court may resolve the
conflicting claims of a and b aver the cashier's check.
Question no. 10 (1996)
1) A lost the cashier's check she purchased from xyz bank. Upon being
notified of the loss. Xyz bank immediately issued a *stop payment - order.
Here comes b trying to encash that same cashier’s check but xyz bank
refused payment.

Xyz bank may file a complaint for interpleader so that the court may
resolve the conflicting claims of a and b over the cashier’s check.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

62. Lta, inc. Is the lesse of a building owned by mr. Tenorio paying rental of 10,00.00
a month. The owner died on may 10, 1988 and since then, lta hs not paid the
monthly rentals, now amounting to 40, 000.00, because two women are both
claiming to be widows of tenorio and are demanding the rental payments.
What legal action may lta’s counsel take, before what court, and against whom
to protect lta’s interests? Explain. (1988)

Suggested answer:

Lta’s counsel should file a complaint for interpleader against the two women
claiming to be the widows of tenorio before the rtc so that said court may
determine who is entitled to the rental payments. The rtc has jurisdiction because
the amount involved is 40,000.00.

Alternative answer:

Consignation and deposit should be included because it involves rentals

(although this is not an ejectment case) to protect lta’s interests.
RULE 63: DECLARATORY RELIEF AND SIMILAR REMEDIES
QUESTION(1998):

A student files an action for declaratory relief against his school to determine
whether he deserves to graduate with latin honors. Is this action tenable?

2. No. The action for declaratory relief is not tenable. Whether the student
deserves to graduate with Latin honors does not fall within the matters subject to
declaratory relief, namely, a deed, will contract or other written instrument, or a
statute, executive order or regulation, ordinance, or any other governmental
regulation. (Sec.1 of Rule 63, 1997 Rules of Civil Procedure.)

Special civil actions

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Rule 65 certiorari, prohibition and mandamus

Certiorari (2018)
In 2007, court of appeals justice (ca justice) dread dong (j. Dong) was appointed to the
supreme court (court) as associate justice. Immediately after the appointment was
announced, several groups questioned his qualification to the position on the ground
that he was not a natural born filipino citizen. In the same year, the court issued an
order enjoining him from accepting the appointment or assuming the position and
discharging the functions of his office until he is able to successfully complete all the
necessary steps to show that he is a nat ural born citizen of the philippines. However,
he continued to exercise his functions as ca justice.
Since the qualification of a natural born citizen applies as well to ca justices, atty. Dacio,
a practicing lawyer, asked the office of the solicitor general (osg), through a verified
request, to initiate a quo warranto proceeding against j. Dong in the latter's capacity as
incumbent ca justice. The osg refused to initiate the action on the ground that the issue
of j. Dong's citizenship was still being litigated in another case.
When the osg refused to initiate a quo warranto proceeding, atty. Dacio filed a petition
for certiorari against the osg and certiorari and prohibition against j. Dong. The petition
for certiorari against the osg alleged that the osg committed grave abuse of discretion
when it deferred the filing of a quo warranto proceeding against j. Dong, while the
petition for certiorari and prohibition against j. Dong asked the court to order him to
cease and desist from further exercising his powers, duties and responsibilities as ca
justice. In both instances, atty. Dacio relied on the fact that, at the lime of j. Dong's
appointment as ca justice, his birth certificate indicated that he was a chinese citizen
and his bar records showed that he was a naturalized filipino citizen.
a. May the osg be compelled, in an action for certiorari, to initiate a quo
warranto proceeding against j. Dong? (2.5%)
Suggested answer:
No. A petition for certiorari under rule 65, section 1 of the rules of court is only
applicable against a tribunal, board or officer exercising judicial or quasi-judicial
functions who/which has acted without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction. Since
the osg does not exercise judicial or quasi-judicial functions, the petition for
certiorari filed against the osg is improper.
b. Does atty. Dacio have the legal personality to initiate the action for certiorari and
prohibition against j. Dong? (2.5%)
Suggested answer:
no. Rule 65, sections 1 and 2 of the rules of court state that only an aggrieved
party may file petitions for certiorari and prohibition in the appropriate court.
An “aggrieved party” is one who was a party to the original proceedings that
gave rise to the original action for certiorari under rule 65. (siguion reyna
montecillo and ongsiako law offices v. Chionlo-sia, g.r. No. 181186, 3 february
2016)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

In this case, since there is no “original preceeding” before j. Dong where atty.
Dacio is a party. Thus, atty. Dacio cannot be considered and “aggrieved party”
for purposes of rule 65, sections 1 and 2 of the rules of court. This, atty. Dacio
has no legal personality to file the same.
Certiorari (2018)
Dominic was appointed special administrator of the estate of dakota dragon. Delton,
husband of dakota, together with their five (5) children, opposed the appointment of
dominic claiming that he (dominic) was just a stepbrother of dakota. After giving dominic
the chance to comment, the court issued an order affirming the appointment of dominic.
a. What is the remedy available to the oppositors? (2.5%)
Suggested answer:
The remedy available to the oppositors of the appointment of dominic as special
administrator is to file a petition for certiorari under rule 65 of the rules of court.
The appointment of special administrators, being discretionary, is thus
interlocutory and may be assailed through a petition for certiorari under rule 65
of the rules of court. (ocampo v. Ocampo, g.r. No. 187879, 5 july 2010).
b. If there are no qualified heirs, can the government initiate escheat proceedings
over the assets of the deceased? To whom, in particular, shall the estate of the
deceased go and for whose benefit? (2.5%)
Suggested answer:
If there are no qualified heirs, rule 91 section 1 of the rules of court provides that
the solicitor general or his representatives in behalf of the republic of the
philippines, may file a petition with the rtc where the deceased last resided or in
which he had estate, if he had resided outside the philippines, setting forth the
facts and praying that the estate of the deceased be declared escheated.
Rule 91, section 3 of the rules of court provides that once a judgment has been
rendered in escheat proceedings, the properties of the deceased shall be
assigned as follows: (a) personal estate to the municipality or city where he last
resided in the philippines; (b) real estate to the philippines, the whole estate may
be assigned to the respective municipalities or cities where the same is located.
Such estate shall be for the benefit of public schools, and public charitable
institutions and centers in said municipalities or cities.
Mandamus: doctrine of exhaustion of remedies (2015)
A law was passed declaring mt. Karbungko as a protected area since it was a major
watershed. The protected area covered a portion located in municipality of the province
i and a portion located in the city of z of province ii. Maingat is the leader of samahang
tagapag-ingat ng karbungko (stk), a people’s organization. He learned that a portion of
the mountain located in the city of z of province il was extremely damaged when it was
bulldozed and leveled to the ground, and several trees and plants were cut down and
burned by workers of world pleasure resorts, inc. (wpri) for the construction of a hotel
and golf course. Upon inquiry with the project site engineer if they had a permit for the
project, maingat was shown a copy of the environmental compliance certificate (ecc)
issued by the denr-emb, regional director (rd-denr-emb). Immediately, maingat and stk
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

filed a petition for the issuance of a writ of continuing mandamus against rd-denr-emb
and wpri with the rtc of province i, a designated environmental court, as the rd-denr-emb
negligently issued the ecc to wpri. On scrutiny of the petition, the court determined that
the area where the alleged actionable or omission subject of the petition took place in
the city of z of province ii, and therefore cognizable by the rtc of province ii. Thus, the
court dismissed outright the petition for lack of jurisdiction.
(a) was the court correct in motu proprio dismissing the petition? (3%)
Assuming that the court did not dismiss the petition, the rd-denr–emb in his comment
moved to dismiss the petition on the ground that petitioners failed to appeal the
issuance of the ecc and to exhaust administrative remedies provided in the denr rules
and regulations.
(b) should the court dismiss the petition? (3%)

Suggested answer
1. A) no. The court was not correct in motu propio dismissing the petition.
While it appears that the alleged actionable neglect or omission took place in the city of
z of province ii and, therefore cognizable by the rtc of province ii, nonetheless, venue is
not jurisdictional, and it can be waived in a special civil action for continuing mandamus
(dolot v. Paje, g.r. No. 199199, august 27, 2013). Besides, under section 1, rule 9 of the
rules of court, defenses and objections not pleaded in the answer or in the motion to
dismiss are deemed waived. Hence, the court cannot motu proprio dismiss the case on
the ground of improper venue.
(b) yes, the court should dismiss the petition because the proper procedure to question
a defect in an ecc is to follow the denr administrative appeal process in accordance with
the doctrine of exhaustion of administrative remedies (dolot v. Hon. Paje, g.r. No.
199199, august 27, 2013; paje v. Casiño, g.r. No, 207257, february 3, 2015).
Alternative answer
(b) no, the court should not dismiss the petition because the doctrine of exhaustion of
administrative remedies finds no application when the matter is of extreme urgency that
may cause great and irreparable damage to the environment involving strong public
interest. After all, the court may suspend the rules of procedure in order to achieve
substantial justice, and to address urgent and paramount state inter ests vital to the life
of our nation (boracay foundation, inc. V. Province of aklan, g.r. No. 196870, june 26,
2012; paje v. Casiño, g.r. No, 207257, february 3, 2015).

Mandamus (2013)
at the public attorney's office station in taguig where you are assigned, your
work requires you to act as public defender at the local regional trial court and to
handle cases involving indigents.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

What remedy would you undertake to address the situation and what forum would you
use to invoke this relief? (3%)

(b) a petition for mandamus is also feasible.

In lumanlaw v. Peralta, jr. (g.r. No. 164953, february 13, 2006), the supreme court held
that "a writ of mandamus may be issued to control the exercise of discretion when, in
the performance of duty, there is undue delay that can be characterized as a grave
abuse of discretion resulting in manifest injustice. Due to the unwarranted delays in the
conduct of the arraignment of petitioner, he has indeed the right to demand-through a
writ of mandamus expeditious action from all officials tasked with the administration of
justice. Thus, he may not only demand that his arraignment be held but, ultimately, that
the information against him be dismissed on the ground of the violation of his right to
speedy trial.”
Ergo, a writ of mandamus is available to the accused to compel a dismissal of the case.

2012

Certiorari; petition for certiorari, rule 65

After an information for rape was filed in the rtc, the doj secretary, acting on the
accused's petition for review, reversed the investigating prosecutor's finding of probable
cause. Upon order of the doj secretary, the trial prosecutor filed a motion to withdraw
information which the judge granted. The order of the judge stated only the following:

"based on the review by the doj secretary of the findings of the

investigating prosecutor during the preliminary investigation, the court
agrees that there is no sufficient evidence against the accused to sustain
the allegation in the information. The motion to withdraw information is,
therefore, granted."

If you were the private prosecutor, what should you do? Explain. (2012)

Suggested answer:

If i were the private prosecutor, i would file a petition for certiorari under rule 65 with the
court of appeals (cerezo vs. People, g.r. No. 185230, june 1, 2011). It is well-settled that
when the trial court is confronted with a motion to withdraw an information (on the
ground of lack of probable cause to hold the accused for trial based on a resolution of
the doj secretary), the trial court has the duty to make an independent assessment of
the merits of the motion. It may either agree or disagree with the recommendation of the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

secretary. Reliance alone on the resolution of the secretary would be an abdication of

the trial court’s duty and jurisdiction to determine a prima facie case. The court must
itself be convinced that there is indeed no sufficient evidence against the accused.
Otherwise, the judge acted with grave abuse of discretion if he grants the motion to
withdraw information by trial prosecutor. (harold tamargo vs. Romulo awingan et. Al.
G.r. No. 177727, january 19, 2010).

Alternative answer:

If i were the private prosecutor, i would file a motion for reconsideration of the order of
the trial court. If the same has been denied, i would file a petition for review on certiorari
under rule 45 on pure questions of law, which actually encompasses both the criminal
and civil aspects thereof. The filing of the petition is merely a continuation of the
appellate process.

a. A was charged with a non-bailable offense. At the time when the warrant of
arrest was issued, he was confined in the hospital and could not obtain a valid
clearance to leave the hospital. He filed a petition for bail saying therein that he
be considered as having placed himself under the jurisdiction of the court. May
the court entertain his petition? Why or why not? (2012)

Suggested answer:

No, the court may not entertain his petition as he has not yet been placed under arrest.
A must be “literally” placed under the custody of the law before his petition for bail could
be entertained by the court (miranda vs. Tuliao, g.r. No. 158763, march 31, 2005).

Alternative answer:

Yes, a person is deemed to be under the custody of the law wither when he has been
arrested of has surrendered himself to the jurisdiction of the court. The accused who is
confined in a hospital may be deemed to be in the custody of the law if he clearly
communicates his submission to the court while he is confined in a hospital, (paderanga
v. Court of appeals, g.r. No. 115407, august 28, 1995).

Mandamus
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a. A files a complaint against 8 for recovery of title and possession of land situated
in makati with the rtc of pasig. B files a motion to dismiss for improper venue. The
rtc pasig judge denies b's motion to dismiss, which obviously was incorrect.
Alleging that the rtc judge "unlawfully neglected the performance of an act which
the law specifically enjoins as a duty resulting from an office", 8 files a petition for
mandamus against the judge. Will mandamus lie? Reasons. (2012)

Suggested answer:

No, mandamus will not lie. The proper remedy is a petition for prohibition (serana v.
Sandiganbayan, g.r. No. 162059, january 22, 2008). The dismissal of the case based on
improper venue is not a ministerial duty. Mandamus does lie to compel the performance
of discretionary duty. (nilo paloma v. Danilo mora, g.r. No. 157783, september 23,
2005).

Question: (2006)

explain each mode of certiorari.

A. As a mode of appeal from rtc/ca to the supreme court

B. As a special civil action for certiorari from the rtc or ca to the
supreme court
C. As a mode of review of the decisions of the national labor relations
commission and the constitutional commissions.

Suggested answer:

A. A petition for review on certiorari under rule 45 is a mode of appeal on pure

questions of law from a judgment of final order or resolution of the court of
appeals or the regional court to the supreme court.

Suggested answer:

B. As a special civil action for certiorari under rule 65, it is an original action form the
rtc or the ca to the supreme court against a tribunal, board or officer exercising
judicial or quasi-judicial functions raising the issue of lack or excess of jurisdiction
or grave abuse of discretion amounting to lack or excess of jurisdiction, there
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

being no appeal or any plain, speedy and adequate remedy in the ordinary
course of law.

Suggested answer:

C. The mode of review of the decision of the nlrc is via a special civil action for
certiorari under rule 65 but pursuant to the hierarchy of courts as enunciated in
the case of st. Martin’s funeral homes v. Nlrc 295 scra 494 [1998], the same
should be filed in the ca.

the mode of review of the decisions of 2 constitutional commissions, the

commission on elections and the commission on audit, as provided under rule
64 is a special civil action for certiorari under rule 65. Decisions of the civil
service commission, however, are reviewable by petition for review is to be filed
with the court of appeals under rule 43.

Question (2002)

the defendant was declared in default in the rtc for his failure to file an answer to
a complaint for a sum of money. On the basis of the plaintiff’s ex parte presentation of
evidence, judgment by default was rendered against the defendant. The default
judgment was served on the defendant on october 1, 2001. On october 10, 2001, he
filed a verified motion to lift the order of default and to set aside the judgment. In his
motion, the defendant alleged that, immediately upon receipt of the summons, he saw
the plaintiff and confronted him with his receipt evidencing his payment and that the
plaintiff assured him that he would instruct his lawyer to withdraw the complaint. The
trial court denied the defendant’s motion because it was not accompanied by an
affidavit of merit. The defendant filed a special civil action for certiorari under rule 65
challenging the denial order.

A. Is certiorari under rule 65 the proper remedy? Why? (2%)

B. Did the trial court abuse its discretion or act without or in excess of its
jurisdiction in denying the defendant’s motion to lift the order of default and
to set aside the default judgment? Why? (2%)

Suggested answer:

A. The petition for certiorari under rule 65 filed by the defendant is the proper
remedy because appeal is not a plain, speedy and adequate remedy in the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

ordinary course of law. In appeal, the defendant in default can only question the
decision in the light of the evidence of the plaintiff. The defendant cannot invoke
the receipt to prove payment of his obligation to the plaintiff.

Alternative answer:

A. Under ordinary circumstances, the proper remedy of a party wrongly declared in

default is either to appeal from the judgment by default or to file a petition for
relief from judgment. [ jao, inc. Vs. Court of appeals, 251 scra 91 (1995)].

Suggested answer:

. Yes, he trial court gravely abused its discretion or acted without or in excess of
jurisdiction in denying the defendant’s motion because it was not accompanied
by a separate affidavit of merit. In his verified motion to lift the order of default
and to set aside the judgment, the defendant alleged that immediately upon
receipt of the summons, he saw the plaintiff and confronted him with his receipt
showing payment and that the plaintiff assured him that he would instruct his
lawyer to withdraw the complaint. Since the good defense of the defendant was
already incorporated in the verified motion, there was no need for a separate
affidavit of merit. [capuz vs. Ca.233 scra 471 (1994); mago vs. Ca, 303 scra 600
(1999).

Question no. 10 (1996)

1. Is the failure to file a motion for reconsideration in the lower court as a condition
precedent for the granting of the writ of certiorari or prohibition always fatal?
Explain.

Answer:
1) no. Because there are exceptions, such as the following:
A) the question dior-1st/lion was squarely raised before and decided by the
respondent court.
B) public interest is involved
C) case of urgency
D) order is patent nullity el issue is purely of law
Deprivation of right to due process (cochingyan us. Ciortbel, 76 scra 361; patea us. Pal.
I i i scra 215)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Question no. 5 (1994)

State the steps for bringing up to the supreme court

2. A decision of the board of assessrnent appeals of the province of rizal.

Answer:

2. To bring up a decision of the board of assessment appeals of the province of rizal to

the supreme court. It must first be brought to the central board of assessment appeals.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

After which the decision of the cbaa may be brought to the supreme court in a special
civil action for certiorari.

63. On 3 january 1991, the mayon corp. Filed a complaint for foreclosure of real
estate mortgage against one of its sales agents, a, who was discovered to have
incurred a shortage in his accounts. The mortgage was executed to guarantee
faithful compliance with his duties and responsibilities as a sales agent.
Impleaded in his complaint as co-defendants were a’s co-mortgagors, b and c.

Acting on defendant’s motion to dismiss, the court dismissed the complaint in an

order dated 15 february 1991, a copy of which was received by mayon corp. On
18 february 1991. Om 15 march 1991, and definitely within a reasonable period
from eceipt of the dismissal order, mayon corp. Filed with the supreme court a
special civil action for certiorari under rule 65 of the rules of court alleging therein
that the trial court acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction in granting the motion to dismiss.
a. Should the supreme court give due course to the petition?
b. Distinguish certiorari as a special civil action under rule 65 from certiorari as a
mode of appeal under rule 45 of the rules of court.
c. May a special civil action for certiorari prosper in case of a denial of a motion
to dismiss or a motion to quash? If so, in what instance or instances. (1991)

Suggested answer:

a. No, because the proper remedy was an appeal from the order of dismissal.
The special civil action of certiorari cannot take the place of a lost appeal.
(limpot v. Ca, 170 scra 367)
b. Certiorari as a special civil action is within the jurisdiction of the supreme
court, the court of appeals, and the regional trial courts, whereas certiorari as
a mode of appeal is within the jurisdiction only of the supreme court.
The grounds for certiorari under rule 65 are lack or excess of jurisdiction
or grave abuse of discretion, whereas the grounds for certiorari under rule 45
are errors of law.
The court or judge should be joined as indispensable party defendant in
certiorari under sec. 5 rule 65, but need not be joined in certiorari under rule
45. (mwss v. Ca, 143 scra 623; philippine global communications, inc. V.
Relova, 145 scra 385)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

c. Yes, if it can be shown that the trial court acted without or in excess of
jurisdiction or with grave abuse of discretion, since the order of denial is
interlocutory and not immediately appealable. (manalo v. Mariano, 69 scra
800; tacas v. Cariaso, 72 scra 171; newsweek v. Iac, 142 scra 171)

64. A. Suppose the motion to dismiss in the preceding problem is granted, what is
the remedy of norma alajar?
B. If the motion to dismiss is denied, what is the recourse of mario reyes?
Explain your answer. (1990)
Suggested answer:

(b) The remedy of norma alajar from the order of dismissal is an appeal by
certiorari under rule 45 of the rules of court.

Alternative answer:

(a.) Another remedy is for alajar to file a motion for reconsideration with a request
to have another summons served on mario reyes.
(b.) The recourse of mario reyes from the order of denial is not an immediate
appeal because the order i interlocutory. However, since the issue raised is lack
of jurisdiction over his person, he may file a petition for certiorari under rule 65 of
rules of court. (newsweek v. Iac, 142 scra 171)

65. while the trial was ongoing, the lawyer of mario reyes discovered that there was
improper service of summons, the summons having been sent by registered
mail. He filed a motion to dismiss on the ground that the court had not acquired
jurisdiction over the person of mario reyes.
should the said motion be granted? Explain your answer.
(a) Suppose the motion to dismiss in the preceding problem is granted, what is
the remedy of norma alajar?
(b) If the motion to dismiss is denied, what is the recourse of mario reyes?
Explain your answer. (1990)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

A. The remedy of norma alajar from the order of dismissal is an appeal by

certiorari under rule 45 of the rules of court.

Alternative answer:

66. Well-settled is the rule that before a petition for certiorari under rule 65 of the
rules of court may be filed a motion for reconsideration must be filed to give an
opportunity to the judge to correct an error, if any. An omission to comply with
this procedural requirement justifies a denial of the writ applied for. When may a
motion for reconsideration be dispensed with? (1989)

Suggested answer:

A motion for reconsideration may be dispensed with in the following cases:

1. Where the question of jurisdiction has been squarely raised, argued before,
submitted to, and met and decided by the respondent court;
2. Where the questioned order is a patent nullity;
3. Where there is deprivation of the fundamental right to due process.
(cochingyan vs. Cloribel, supra)

Alternative answer:

1. Where the issue is purely of law;

2. Where public interest is involved;
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

3. In cases of urgency. (palea vs. Pal, 111 scra 215)

67. Defendant xanthe filed a motion to dismiss plaintiff yogi’s complaint before the
rtc.
c. The court grants the motion to dismiss.
Explain the remedies or procedure to be resorted to or to be pursued by
plaintiff to have the order of dismissal reversed and corrected finally.
d. The court denies the motion to dismiss
1. May xanthe appeal the denial? Reason
2. How and on what ground or grounds may defendant
xanthe bring the denial of his motion to dismiss to
appellate courts? Explain (1988)

suggested answer:
A. The remedy is to appeal to the ca from the order of dismissal within
fifteen days from notice thereof by filing a notice of appeal with the rtc and
serving a copy thereof on the adverse party.
However, if only a question of law is involved, the remedy is to file a
petition for review on certiorari with the sc within fifteen days from the
notice of the order or the denial of his motion for reconsideration and
serving a copy thereof on the rtc and on the adverse party. (laxamana v
ca, 143 scra 643)
B. 1) no because the order of denial is merely interlocutory, and only final
judgments or order are subject to appeal.

2) defendant x may bring the denial of his motion to dismiss to the

appellate courts by filing a petition for certiorari on the ground of lack or
excess of jurisdiction or grave abuse of discretion. (newsweek vs iac, 142
scra 171)

RULE 66: QUO WARRANTO

Question(2001)

A group of business man formed an association in Cebu City calling itself Cars
Co. to distribute/sell cars in said city. It did not incorporate itself under the law nor did it
have any government permit or license to conduct its business as such. The Solicitor
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

General filed before a Regional Trial Court in Manila a verified petition for quo warranto
questioning and seeking to stop the operations of Cars Co. The latter filed a motion to
dismiss the petition on the ground of improper venue claiming that its main office and
operations are in Cebu City and not in Manila.
Is the contention of Cars Co. correct? Why?

SUGGESTED ANSWER:
No. As expressly provided in the Rules, when the Solicitor General
commences the action for quo warranto, it may be brought in a Regional Trial
Court in the City of Manila, as in this case, in the Court of Appeals or in the
Supreme Court. (Sec. 7 of rule 66, 1997 Rules of Civil Procedure)

Petitioner Fabian was appointed Election Registrar of the Municipality of Sevilla

supposedly to replace the respondent Election Registrar Pablo who was transferred to
another municipality without his consent and who refused to accept his aforesaid
transfer, much less to vacate his position in Bogo town as election registrar, as in fact
he continued to occupy his aforesaid position and exercise his functions thereto.
Petitioner Fabian then filed a petition for mandamus against Pablo but the trial court
dismissed Fabian’s petition contending that quo warranto is the proper remedy.

Is the court correct in its ruling? Why?

SUGGESTED ANSWER:
Yes, the court is correct in its ruling. Mandamus will not lie.
Mandamus will not lie. This remedy applies only where petitioner’s right is
founded clearly in law, not when it is doubtful. Pablo was transformed without his
consent which is tantamount to removal without cause, contrary to the
fundamental guarantee on non-removal except for cause. Considering that Pedro
continued to occupy the disputed position and exercise his function therein, the
proper remedy is quo warranto, not mandamus. [Garces v. Court of Appeals, 259
SCRA 99 (1996)]

Petitioner Fabian was appointed Election Registrar of the Municipality of Sevilla

he continued to occupy his aforesaid position and exercise his functions thereto.
Petitioner Fabian then filed a petition for mandamus against Pablo but the trial court
dismissed Fabian’s petition contending that quo warranto is the proper remedy.

Is the court correct in its ruling? Why?

Rule 67 expropriation

2009

Expropriation; motion to dismiss

The republic of the philippines, through the department of public works and highways
(dpwh) filed with the rtc a complaint for the expropriation of the parcel of land owned by
jovito. The land is to be used as an extension of the national highway. Attached to the
complaint is a bank certificate showing that there is, on deposit with the land bank of the
philippines, an amount equivalent to the assessed value of the property. Then dpwh
filed a n ' for the issuance of a writ of possession. Jovito filed otio to dismiss the
complaint on the ground that there are other properties which would better serve the
purpose. (2009)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a. Will jovito's motion to dismiss prosper? Explain. (3%)

Suggested answer:

No. The present rule of procedure governing expropriation (rule 67), as amended by
the 1997 rules of civil procedure, requires the defendant to file an answer, which must
be filed on or before the time stated in the summons. Defendant's objections and
defenses should be pleaded in his answer not in a motion.

b. As judge, will you grant the writ of possession prayed for by dpwh? Explain. (3%)

Suggested answer:

No. The expropriation here is governed by rep. Act no. 8974 which requires 100%
payment of the zonal value of the property as determined by the bir, to be the amount
deposited. Before such deposit is made, the national government thru the dpwh has no
right to take possession of the property under expropriation.

Question: (2006)

may congress enact a law providing that a 5,000 sq. M. Lot, a part of the ust
compound in sampaloc, manila be expropriated for the construction of a park in honor of
former city mayor arsenio lacson? As compensation to ust, the city of manila shall
deliver its 5-hectare lot in sta. Rosa laguna originally intended as a residential
subdivision for the manila city hall employees. Explain.

Suggested answer:

yes. Congress can enact a law to expropriate property but it cannot limit just
compensation. The determination of just compensation is a judicial function and
congress may not supplant or prevent the exercise of judicial discretion to determine
just compensation. (epza v. Dulay, 149 scra 305 [1987] under rule 67, the
ascertainment of just compensation requires the evaluation of three (3) commissioners.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

RULE 68: FORECLOSURE OF REAL ESTATE MORTGAGE

Extrajudicial foreclosure (2016)

(a) is the buyer in the auction sale arising from an extra-judicial foreclosure entitled to a
writ of possession even before the expiration of the redemption period? If so, what is the
action to be taken? (1%)
(b) after the period of redemption has lapsed and the title to the lot is consolidated in the
name of the auction buyer, is he entitled to the writ of possession as a matter of right? If
so, what is the action to be taken? (2%)
(c) suppose that after the title to the lot has been consolidated in the name of the
auction buyer, said buyer sold the lot to a third party without first getting a writ of
possession. Can the transferee exercise the right of the auction buyer and claim that it
is a ministerial duty of the court to issue a writ of possession in his favor? Briefly
explain. (2%)
Suggested answer
(a) yes, the buyer in the auction sale is entitled to a writ of possession even before the
expiration of the redemption period upon the filing of the ex parte petition for issuance of
a writ of possession and posting of the appropriate bond. Under section 7 of act no.
3135, as amended, the writ of possession may be issued to the purchaser in a
foreclosure sale either within the one-year redemption period upon the filing of a bond,
or after the lapse of the redemption period, without need of a bond (lzk holdings and
development corporation v. Planters development bank, g.r. No. 167998, april 27,
2007). Stated otherwise, section 7 of act no. 3135, as amended, also refers situation
wherein the purchaser seeks possession of the foreclosed property during the 12-month
period for redemption. Hence, upon the purchaser’s filing of the ex parte petition and
posting of the appropriate bond, the rtc shall, as a matter of course, order the issuance
of the writ of possession in favor of the purchaser (spouses nicasio marquez and anita j.
Marquez v. Spouses carlito alindog and carmen alindog, g.r. No. 184045, january 22,
2014; spouses jose gatuslao and ermila gatuslao v. Leo ray yanson, g.r. No. 191540,
january 21, 2015).
(b) yes, the auction buyer is entitled to a writ of possession as a matter of right. It is
settled that the buyer in a foreclosure sale becomes the absolute owner of the property
purchased if it is not redeemed within a period of one year after the registration of the
certificate of sale. He is, therefore, entitled to the possession of the property and can
demand it at any time following the consolidation of ownership in his name and the
issuance to him of a new transfer certificate of title. In such a case, the bond required in
section 7 of act no. 3135 is no longer necessary. Possession of the land then becomes
an absolute right of the purchaser as confirmed owner. Upon proper application and
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

proof of title, the issuance of the writ of possession becomes a ministerial duty of the
court (lzk holdings and development corporation v. Planters development bank, g.r. No.
167998, april 27, 2007; spouses nicasio c. Marquez and anita j. Marquez v. Spouses
carlito alindog and carmen alindog, g.r. No. 184045, january 22, 2014; spouses jose
gatuslao and ermila gatuslao v. Leo ray yanson, g.r. No. 191540, january 21, 2015).
(c) yes. The transferee can exercise the right of the auction buyer. A transferee or
successor-in-interest of the auction buyer by virtue of the contract of sale between
them, is considered to have stepped into the shoes of the auction buyer. As such, the
transferee is necessarily entitled to avail of the provisions of section 7 of act 3135, as
amended, as if he is the auction buyer (spouses jose gatuslao and ermila gatuslao v.
Leo ray yonson, g.r. No. 191540, january 21, 2015), when the lot purchased at a
foreclosure sale is in turn sold or transferred, the right to the possession thereof, along
with all other rights of ownership, transfers to its new owner (spouses gallent v.
Velasquez, g.r. No. 203949, april 6, 2016), ergo, it is a ministerial duty of the court to
issue a writ of possession in favor of the transferee of the auction buyer.

2007

Foreclosure; certification against non forum shopping

Rc filed a complaint for annulment of the foreclosure sale against bank v. In its answer,
bank v set up a counterclaim for actual damages and litigation expenses. Rc filed a
motion to dismiss the counterclaim on the ground that bank v’s answer with
counterclaim was not accompanied by a certification against forum shopping. Rule.
(2007)

Suggested answer:

A certification against forum shopping is required only in initiatory pleadings. In this

case, the counterclaim pleaded in the defendant’s answer appears to have arisen from
the plaintiff’s complaint or compulsory in nature and thus, may not be regarded as an
initiatory pleading. The absence thereof in the bank’s answer is not a fatal defect.
Therefore, the motion to dismiss on the ground raised lacks merit and should be denied
(ust v. Suria, 294 scra 382 [1998]). On the other hand, if the counterclaim raised by the
defendant bank’s answer was not predicated on the plaintiff’s claim or cause of action, it
is considered a permissive counterclaim. In which case, tit would partake an initiatory
pleading which requires a certification against forum shopping. Correspondingly, the
motion to dismiss based on lack of the required certificate against forum shopping
should be granted.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Question: (2003)

a borrowed from the development bank of the philippines (dbp) the amount of p1
million secured by the titled land of his friend b who, however, did not assume personal
liability for the loan. A defaulted and dbp filed an action for judicial foreclosure of the real
estate mortgage impleading a and b as defendants. In due course, the court rendered
judgment directing a to pay the outstanding account of p1.5 million (principal plus
interest) to the bank. No appeal was taken by a on the decision within the reglementary
period. A failed to pay the judgment debt within the period specified in the decision.
Consequently, the court ordered the foreclosure sale of the mortgaged land. In that
foreclosure sale, the land was sold to the dbp for p1.2 million. The sale was
subsequently confirmed by the court, and the confirmation of the sale was registered
with the registry of deeds on 05 january 2002.

on 10 january 2003, the bank filed an ex-parte motion with the court for the
issuance of a writ of possession to oust b from the land. It also filed a deficiency claim
for p800,000.00 against a and b. The deficiency claim was opposed by a and b.

A. Resolve the motion for the issuance of a writ of possession

B. Resolve the deficiency claim of the bank

Suggested answer:

A. In judicial foreclosure by banks such as dbp, the mortgagor or debtor whose real
property has been sold on foreclosure has the right to redeem the property sold
within one year after the sale (or registration of the sale). However, the purchaser
at the auction sale had the right to obtain a writ of possession after the finality of
the order confirming the sale. (sec. 3 of rile 68; sec. 47 of ra 8791. The general
banking law of 2000.) The motion for writ of possession, however, cannot be filed
ex parte. There must be a notice of hearing.

the deficiency claim of the bank may be enforced against the mortgage debtor a,
but it cannot be enforced against b, the owner of the mortgaged property, who
did not assume personal liability for the loan.

QUESTION(2000):
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

AB mortgaged his property to CD. AB failed to pay his obligation and CD filed an action
for foreclosure of mortgage. After trial, the court issued an order granting CD’s prayer
for foreclosure of mortgage and ordering AB to pay CD the full amount of the mortgage
debt including interest and other charges not later than 120 days from date of receipt of
the Order. AB received the order on August 10, 1999. No other proceeding took place
thereafter. On December 20,1999, AB tendered the full amount adjudged by the court to
CD but the latter refused to accept it on the ground that the amount was tendered
beyond the 120-day period granted by the court. AB filed a motion in the same court
praying that CD be directed to receive the amount tendered by him on the ground that
the Order does not comply with the provisions of Section 2 Rule 68 of the Rules of
Court which gives AB 120 days from entry of judgment, and not from receipt of order.
The court denied his motion on the ground that the order had become final and can no
longer be amended to conform with Section 2, Rule 68. Aggrieved, AB files a petition for
certiorari against the court and CD. Will the petition for certiorari prosper? Explain.

Suggested answer:
Yes. The court erred in issuing an Order granting CD’s prayer for
foreclosure of mortgage and ordering AB to pay CD the full amount of the
mortgage debt including interest and other charges not later than 120 days from
receipt of the Order. The court should have rendered a judgment which is
appealable. Since no appeal was taken, the judgment became final on August 25,
1999, which is the date of entry of judgment. (Sec. 2, Rule 36, 1997 Rules of Civil
Procedure). Hence, AB hap up to December 24, 1999 within which to pay the
amount due. (Sec. 2, Rule 68, Rules of Civil Procedure). The court gravely abused
its discretion amounting to lack or excess of jurisdiction in denyin AB’s motion
praying that CD be directed to receive the amount tendered.

RULE 69: PARTITION

Partition; non-joinder

Florencio sued guillermo for partition of a property they owned in common. Guillermo
filed a motion to dismiss the complaint because florencio failed to implead hernando
and inocencio, the other co-owners of the property. As judge, will you grant the motion
to dismiss? Explain. (2009)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

No, because the non-joinder of parties is not a ground for dismissal of action (rule 3, sec
11). The motion to dismiss should be denied.

QUESTION(2000):
Linda and spouses Arnulfo and Regina Ceres were co-owners of a parcel of land. Linda
died intestate and without any issue. Ten (10) persons headed by Jocelyn, claiming to
be the collateral relatives of the deceased Linda, filed an action for partition with the
Regional Trial Court praying for the segregation of Linda’s ½ share, submitting in
support if their petition the baptismal certificates of seven of the petitioners, a family
bible belonging to Linda in which the names of the petitioners have been entered, a
photocopy of the birth certificate of Jocelyn, and a certification of the local civil registrar
that its office had been completely razed by fire. The spouses Ceres refused to partition
on the following grounds: 1) the baptismal certificates of the parish priest are evidence
only of the administration of the sacrament of baptism and they do not prove filiation of
the alleged collateral relatives of the deceased; 2) entry in the family bible is hearsay; 3)
the certification of the registrar on non-availability of the records of birth does not prove
filiation; 4) in partition cases where filiation to the deceased is in dispute, prior and
separate judicial declaration of heirship in a settlement of estate proceedings is
necessary; and 5) there is need for publication as real property is involved. As counsel
for Jocelyn and her co-petitioners, argue against the objections of the spouses Ceres so
as to convince the court to allow the partition. Discuss each of the five (5) arguments
briefly but completely.
Suggested answer:
a) The baptismal certificate can show filiation or prove pedigree. It is
one of the other means allowed under the Rules of Court and
special laws to show pedigree. (Trinidad v. Court of Appeals, 289
SCRA 188; Heirs of Ignacio Conti v. Court of Appeals, 300 SCRA
345)
b) Entries in the family bible may be received as evidence of
pedigree. (Sec. 40, Rule 130, Rules of Court).
c) The certification by the civil registrar of the non-availability of
records is needed to justify the presentation of secondary
evidence, which is the photocopy of the birth certificate of
Jocelyn. (Heirs of Ignacio Conti v. Court of Appeals, supra)
d) Declaration of heirship in a settlement proceeding is not
necessary. It can be made in the ordinary action for partition
wherein the heirs are exercising the right pertaining to the
decedent, their predecessor-in-interest, to ask for partition as co-
owners. (Id.)
e) Even if real property is involved, no publication is necessary,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

because what is sought is the mere segregation of Linda’s share

in the property. (Sec. 1 of Rule 69; Id.)

RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER

Superseades bond (2017)

Judgment was rendered against defendant jaypee in an action for unlawful detainer.
The judgment ordered jaypee to vacate and to pay attorney’s fees in favor of bart, the
plaintiff. To prevent the immediate execution of the judgment would you ad vise the
posting of a supersedeas bond as counsel for jaypee? Explain your answer briefly
(2%).

Suggested answer
I would advise jaypee to post a supersedeas bond, but i would also advise him that the
posting of a supersedeas bond alone does not prevent the immediate execution of the
judgment. To stay the immediate execution of the judgment in an ejectment case, the
defendant:
1. Must perfect an appeal,
2. File a supersedeas bond; and
3. Periodically deposit the rentals becoming due during the pendency of the appeal;
Otherwise, the writ of execution will issue upon motion of the plaintiff (achang v. Hon.
Luczon, g.r. No: 164246, january 15, 2014; rule 70. Sec tion 19 of the rules of court).

Alternative answer:
As counsel for jaypee, i would not advise the posting of a supersedeas bond. The
supersedeas bond shall be equivalent to the unpaid rentals, damages and costs which
accrued down to the time of the judgment (section 19, rule 70, rules of court; chua v.
Court of appeals, g.r. No. 113886, february 24, 1998). In other words, the supersedeas
bond covers the monetary judgment of the lower court; thus, if the judgment does not
make any pronouncement as to the pecuniary liability of the defendant, the posting of
the supersedeas bond should not be required. Attorney’s fees are not covered by a
supersedeas bonds (once v. Gonzales, gr no. L-44806, march 31, 1977)

B.
A temporary restraining order (tro) was issued on september 20, 2017 by the rtc against
defendant jeff enjoining him from entering the land of regan, the plaintiff.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

On october 9, 2017, upon application of regan, the trial court, allegedly in the interest of
justice, extended the tro for another 20 days based on the same ground for which the
tro was issued.
On october 15, 2017, jeff entered the land subject of the tro. May jeff be liable for
contempt of court? Why? (4%)

Suggested answer
No, jeff may not be held liable for contempt. Under rute 58. Sec tion 5 of the rules of
court, a temporary restraining order is valid for 20 days. Its effectivity is not extendible
without need of any judicial declaration to that effect, and no court shall have authority
to extend or renew the same on the same ground for which it was issued, thus, jeff
cannot be held liable for contempt.

Forcible entry (2013)

The spouses juan reside in quezon city. With their lottery winnings, they purchased a
parcel of land in tagaytay city for p100,000.00. In a recent trip to their tagaytay property,
they were surprised to see hastily assembled shelters of light materials occupied by
several families of informal settlers who were not there when they last visited the
property three (3) months ago.

To rid the spouses' tagaytay property of these informal settlers, briefly discuss the legal
remedy you, as their counsel, would use; the steps you would take; the court where you
would file your remedy if the need arises; and the reasons/s for your actions. (7%)

Suggested answer:

The proper legal remedy is to file a special civil action for forcible entry. The rules of
court provide that a person deprived of the possession of any land or building by force,
intimidation, threat, strategy or stealth may at anytime within 1 year after such
withholding of possession bring an action in the proper municipal trial court where the
property is located. This action which is summary in nature seeks to recover the
possession of the property from the defendant which was illegally withheld by the latter
(section 1, rule 70, rules of court).
In abad v. Farrales (g.r. No. 178635, april 11, 2011), the supreme court held that two
allegations are indispensable in actions for forcible entry to enable first level courts to
acquire jurisdiction over them; first, that the plaintiff had prior physical possession of the
property; and, second, that the defendant deprived him of such possession by means of
force, intimidation, 'threats, strategy, or stealth.
However, before instituting the said action, i will first endeavor to amicably settle the
controversy with the informal settlers before the appropriate lupon or barangay
chairman. If there will be no agreement reached after mediation and conciliation efforts
were conducted under the katarungang pambarangay law, i will secure a certificate to
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

file action and file the complaint for ejectment before the mtc of tagaytay city where the
property is located.

2008

Unlawful detainer

Ben sold a parcel of land to del with right to repurchase within one (1) year. Ben
remained in possession of the property. When ben failed to repurchase the same, title
was consolidated in favor of del. Despite demand, ben refused to vacate the land,
constraining del to file a complaint for unlawful detainer. In his defense, ben averred that
the case should be dismissed because del had never been in possession of the
property. Is ben correct? (2008)

Suggested answer:
no, ben is not correct. In an action for unlawful detainer, it is not required that the
plaintiff be in prior physical possession of the land subject of the action. In this action by
the vendee a retro against a vendor a retro who refused to vacate the property even
after title has been consolidated in the vendee, the latter, in contemplation of law, steps
into the shoes of the vendor and succeeds to his rights and interest (pharma industries,
inc. V. Hon. Pajarillaga, 100 scra 339 [1980]; maninang v. Court of appeals, 14 scra 525
[1999]).

2007

Unlawful detainer; preliminary conference

X files an unlawful detainer case against y before the appropriate metropolitan trial
court. In his answer, y avers as a special and affirmative defense that he is a tenant of
x’s deceased father in whose name the property remains registered. What should the
court do? Explain briefly. (2007)

Suggested answer:

The court should hold a preliminary conference not later than thirty (30) days after the
defendant’s answer was filed, since the case is governed by summary procedure under
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

rule 70, rules of court, where a reply is not allowed. The court should receive evidence
to determine the allegations of tenancy. If tenancy had in fact been shown to be the real
issue, the court should dismiss the case for lack of jurisdiction. If it would appear that
y‟s occupancy of the subject property was one of agricultural tenancy, which is
governed by agrarian laws, the court should dismiss the case because it has no
jurisdiction over agricultural tenancy cases. Defendant’s allegation that he is a “tenant”
of plaintiff’s deceased father suggests that the case is one of landlord-tenant relation
and therefore, not within the jurisdiction of ordinary courts.

Question no. 3 (1995)

1. In an illegal detainer case the municipal trial court ruled in favor of
plaintiff-lessor who, not being satisfied with the increase of rentals granted him
by the court, appealed praying for further increase thereof. Defendant-lessee
did not appeal.
a) Can plaintiff-lessor, as appellant, move for execution pending
appeal? Explain.
b) Can defendant-lessee, as appellee, validly resist the immediate
execution of the judgment? Explain.

2. In his appellee's brief. Defendant-lessee not only controverted the issue

on rentals raised by plaintiff-lessor but also assailed the judgment of the trial
court on the ground that the same was totally contrary to the admitted evidence
showing him to be the owner of the property entitled to possession of the
premises.

Can the appellate court consider the issue of ownership raised by the
appellee? Discuss fully.

Answer:

1.A) yes. If defendant fails to pay or deposit the amount of rentals adjudged
by the court within the reglementary period. (city of manila us. Cia. 149 scra
143)

B) yes, as long as he pays or deposits the amount of rentals adjudged.

2. No, because as lessee he is estopped from raising the question of ownership- (art.
1456. Civil code: sec. 2(b). Rule 131: ffie us. Ca 233 scra 587)

Question no. 13 (1995)

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Albert forcibly entered and occupied the house and lot in quezon city
owned by his neighbor cartssa carissa immediately sued albert for recovery
of the property. She also claimed damages amounting to p100.000.00, other
undetermined losses as a result of the forcible entry. And attorney's fees of
p25.000.00. Albert sets up affirmative defenses in his answer without
questioning carissa's title over the property.

1. Is the case triable under summary procedure by the metropolitan trial court
of quezon city? Explain.

2. May carissa present evidence of title? Explain.

Answer:

1. Yes, because all actions for forcible entry and unlawful detainer are subject
to summary procedure irrespective of the amount of damages claimed, but the
attorney's fees should not exceed p20,000.00.
2. Yes, but only to determine the question of possession. (bp 129 as
amended).
3. Albert may raise the issue of lack of barangay conciliation prior to the
filing of the complaint.

Question no. Xiv (1992)

While alfredo was abroad, a parcel of land belonging to him was intruded into
and occupied by rodrigo on january 1. 1991. When alfredo returned on february
1. 1991, he immediately demanded that rodrigo vacate the property. When the
demand went unheeded, alfredo prepared a complaint alleging: that he is the
owner of the property which rodrigo has intruded into and is occupying; that the
intrusion; done with strategy and stealth, has caused him actual damages of
p30,000.00: and he, therefore. Is praying the court to restore him to the
possession of the property, to award him damages, and to further grant him such
other reliefs as may be proper in the premises. The complaint was filed on march 1,
1991 with the regional trial court which eventually rendered a decision declaring
alfredo to be the owner of the land, awarding him damages of p5,000.00, and
ordering that possession of the property be restored to him. Rodrigo appealed to the
court of appeals where he questioned the jurisdiction of the regional trial court
pertinently contending that it was the municipal trial court which had original
and exclusive jurisdiction over the case because (1) it was a forcible entry case,
having been filed within one year from the alleged intrusion; (2) the intrusion was
allegedly done through strategy and stealth which are hallmarks of a forcible entry
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

case; and (3) the declaration of ownership was uncalled for since alfredo did not
ask for it.

as counsel for alfredo, what points will you raise and advance to rebut the
arguments of rodrigo and to justify the jurisdiction, as well as the decision of the
regional trial court?

Suggested answer:
as counsel for alfredo, i would raise the point that the action was not one of forcible
entry, but an accion publiciana or a plenary action for recovery of possession de jure
which is within the jurisdiction of the regional trial court. More over, the claim of
actual damages in the amount of p30,000.00. Is not within the jurisdiction of the
municipal trial court. If it were an action of forcible entry, the damages that could be
claimed would be the reasonable compensation for the use and occupation of the
land and the amount thereof could exceed twenty thousand pesos. But damages other
than the reasonable compensation for the use and occupation of the premises are not
recoverable in an action of forcible entry. (reyes us. Court of appeals. 38 scra 138)

With respect to the declaration of ownership. I would argue that it was correct
inasmuch as rodrigo did not question the ownership of alfredo.

68. For failure of the tenant, x, to pay rentals, a, the court appointed administrator of
the state of henry datu, decides to file an action against the former for the
recovery of possession of the leased premises located in davao city and for the
payment of due accrued rentals in the total amount of p25,000.
a. What is the court of proper jurisdiction and venue of the intended
action?
b. Supposing that referral is necessary, but the complaint is filed without
such referral, may it be dismissed on the ground of lack of jurisdiction?
c. If the case is filed with the municipal trial court in cities (mtcc), is it
covered by the rule on summary procedure?
d. Supposing that a filed the complaint in the mtcc, and x filed an answer
wherein he interposed a counterclaim for moral damages in the
amount of p50,000 alleging that the complaint is unfounded and
malicious, would the mtcc have jurisdiction over the counterclaim? If x
did not set up the counterclaim, can he file a separate action to recover
the damages? Can a file a counterclaim to the counterclaim? (1991)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

a. The court of proper jurisdiction and venue is the municipal trial court of
davao city, since this is an action of illegal detainer and the leased
premises are located in davao city.
b. No, because lack of referral affects only the cause of action, not
jurisdiction, and the former may be deemed waived if not raised in a
motion to dismiss or an answer.
c. No, it is not covered by the rule on summary procedure in any of the lower
courts, because the unpaid rentals exceed p20,000.00 (sec. 1-a-1 of rule
on summary procedure)
d. No, because the counterclaim exceeds the jurisdictional amount of
p20,000.00.
Since the claim for damages is not within the jurisdiction of the mtcc, it is
not compulsory counterclaim and x can file a separate action in the rtc to
recover the damages. (reyes v. Ca, 38 scra 130)
Yes, a can include a counterclaim in his answer to counterclaim. (sec. 10
of rule 6)

Alternative answer:

a. If the action filed is for recovery of possession or accion publiciana, the

regional trial court of davao city would have jurisdiction and the venue
would also be in davao city.
b. No, because lack of referral would merely render the action premature for
failure to comply with a condition precedent.
c. No, it is not covered by the rule on summary procedure in any of the lower
courts, because the unpaid rentals exceed p20,000.00 (sec. 1-a-1 of rule
on summary procedure)
d. The mtcc would have jurisdiction over the counterclaim if the excess of the
amount thereof over p20,000.00 is waived by x. (agustin v bocalan, 135
scra 340)

69. Juan santos, who is leasing an apartment unit in antipolo, rizal from maria cruz, a
resident of quezon city, under a five (5) year contract expiring on october 15,
1991, is in arrears in his rent for three months as of august 15, 1990. Maria cruz,
through counsel, sends a demand letter to juan santos.

Suppose that juan santos, upon receipt of the letter of demand to pay and vacate
the apartment unit, immediately pays the rentals in arrears. He claims that he
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

was so busy with his business that he neglected to pay his rent. May maria cruz
still file an unlawful detainer case against juan santos? Discuss with reason.
(1990)

Suggested answer:

Yes, because juan santos failed to pay the rental on time and his failure to vacate
the apartment unit despite the demand to do so makes his withholding of
possession unlawful. His belated payment did not make his continued
possession lawful without the lessor’s consent. (cursino v. Bautista, aug 7, 1989)

70. In the same controversy, after the demand letter was sent an juan failed to comply
therewith, the lawyer of maria cruz filed the ejectment case with the municipal
court of antipolo without going through the conciliation process at the barangay
level as required under presidential decree no. 1508. The amount due is
p1,500.00, hence, summary procedure was followed.

May juan santos file a motion to dismiss for non-compliance with the
requirements of the said decree? State your reasons. (1990)

Suggested answer:

No, because a motion to dismiss is not allowed in summary procedure.

71. While the ejectment case was pending before municipal court, juan santos
religiously deposits all current rentals. In due time, the judge ordered juan santos
to pay all rents until he vacates the premises as well as attorney’s fees in the
amount of p5,000.00. Maria cruz moves for immediate execution on the ground
that juan santos did not deposit the attorney’s fees of p5,000.00 and that he did
not put a supersedeas bond for the award.
Should the court grant immediate execution? Decide with reasons. (1990)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Suggested answer:

No, because supersedeas bond covers only the rentals unpaid up to the time of
the judgment. Since juan santos had deposited all current rentals while the
ejectment case was pending before the municipal court, a supersedeas bond
was not required. (once v. Gonzales, 76 scra 258). Attorney’s fees are not
required to be deposited in order to stay execution. (sec. 8 of rule 70).

72. In an ejectment suit filed with the metropolitan trial court of manila, the judge
rendered a decision ordering the defendant (a) to vacate the property of the
plaintiff and (b) to pay the plaintiff the amount of p300 a month as reasonable
compensation for the use of the land starting from the time she occupied the
same and until it is vacated by him; p10,000 as unrealized earnings; p7,000 as
moral damages; p5,000 as exemplary damages; and p3,000 as attorney’s fees.
The defendant contends that the decision is improper. Decide. (1989)

Suggested answer:

The metropolitan trial court exceeded its jurisdiction in awarding damages, other
that the reasonable compensation for the use and occupation of the land, totaling
p25,000.00. Hence, the decision should be nullified as to the excess of p5,000
over the jurisdictional amount of p20,000 (ausgustin vs bocalan, 135 scra 340)

Alternative answer:

Only rentals or reasonable compensation for the use and occupation of the
premises and attorney’s fees may be awarded in an ejectment case.

73. In an ejectment case, the municipal trial court ordered ellery to vacate the nipa
house standing on a residential lot, restore possession thereof to indit and pay the
sum of p340 as back rentals at the rate of p20 per month. Ellery appealed to the
regional trial court and posted a supersede as bond of p400. Subsequently, indit
filed a motion in the regional trial court for the execution of the judgment on the
ground that ellery had not deposited the current rentals ogp20 per month. Ellery
opposed the motion, alleging that the municipal trial court did not fix in its
judgment the monthly rental to be paid during his continued stay in the premises
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

so that he is not duty bound to pay the same. Decide the motion for execution of
the judgment filed by indit. (1989)

Suggested answer:

Motion for execution is granted. Although the decision did not specifically order
ellery to pay the monthly rentals of p20 per month from the date thereof until he
vacated the leased premises, the omission does not preclude the regional trial
court from ordering the execution of the decision for failure of the defendant to
deposit in court the current monthly rentals. The fact that ellery posted a
supersede as bond of p400 in order to stay execution pending appeal is a
commitment on his part to deposit the current rentals of p20 per month. (sec. 8 of
the rule 70; dahesa vs. Maclalag, 81 scra 53)

74. Luis is the owner of a five-door apartment unit three doors of which he has leased
to fe, gary, and marilou for a monthly rental of 250.00 per door. Fe, gary, and
marilou have been his tenants for close to thirty years at that rate. He occupies
the fourth door as his own residence. The fifth door is vacant. Alleging that he nee
to repossess all three doors for the use of his son, fern, who had recently gotten
married, and who does not allegedly have a residence of his own, he sued, after
the requisite letters to vacate, fe, gary, and marilou before the metropolitan trial
court for unlawful detainer, fe, gary, and marilou answered the complaint and set
up the defense that ejectment was not proper because the fifth door was available
for fern’s residence. At the trial, they likewise endeavored to prove that fern has in
fact a residence of his own and that the suit was luis mere strategy to force them
to agree to a rental hike of 1,500.00 a door, in violation of the rental laws. The trial
judge, however, decreed ejectment. On appeal, to the regional trial court, fe gary,
and marilou alleged that the decision was null and void, for lack of jurisdiction,
there having been no prior confrontation among the parties before the lupong
tagapamayapa pursuant to presidential decree no. 1508. Luis countered that the
jurisdictional question not having been raised below, it cannot be raised for the
first time on appeal.
a. Can fe, gary, and marilou validly challenge the 65 jurisdiction of the
metropolitan trial court? Explain
b. What is the effect of luis failure to resort to the conciliation process before
the lupong tagapamayapa provided for in pd no. 1508? Explain (1988)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

A. No, because lack of prior confrontation among the parties before the lupong
tagapamayapa pursuant to presidential decree no. 1508 does not affect the
jurisdiction of the metropolitan trial court over the action for unlawful detainer. (it
is presumed that the complaint was filed within one year from the demand to
vacate) (rayales vs iac, 127 scra 470)
Moreover, by answering the complaint and setting up their defense without
objecting to the jurisdiction of the court, they are estopped from raising the
question of jurisdiction. (tijam vs sibonghanoy, 23 scra 29)
B. Luis failure to resort to the conciliation process affects the sufficiency of his
cause of action and makes his complaint subject to dismissal on the ground of
lack of cause of action or prematurity. (rayales vs iac, supra)

75. Andres filed a case for unlawful detainer before the metropolitan court of manila
against lito for refusing to vacate the leased premises after the expiration of his
lease contract and for non-payment of rentals. As counterclaim, lito claimed moral
damages in the amount of 15,000.00.
a) May the metropolitan court proeed to try and decide the case including the claim
of 15,000.00? Explain.
b) In case lito is adjudged to vacate the leased premises and to pay the accrued
rentals in arrears, how can he stay the execution of the judgment?
c) How does unlawful detainer differ from forcible entry? (1988)

Suggested answer:

a) Yes, because the amount of the counterclaim, 15,000.00, is within the jurisdiction
of the metropolitan court which has also exclusive original jurisdiction over the
unlawful detainer case. (agustin vs. Bocalan, 135 scra 340)
b) Lito must appeal; file a supercede as bond in an amount equivalent to the rents,
damages and costs accruing down to the time of the judgment; and deposit with
the rtc the amount of the reasonable value of the use and occupation of the
premises for the preceding month or period at the rate determined by the
judgment, on or before the tenth day of each succeeding month or period.
(section 8, rule 70)
c) In unlawful detainer, the possession is legal at the beginning but subsequently
becomes illegal after the expiration or termination of the right to hold possession,
whereas in forcible entry the possession is illegal from the beginning because the
entry was made by force, intimidation, threat, strategy or stealth.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

76. A” leased his commercial land and building in malate, manila, to “b”, a resident of
malolos, bulacan. The contract of lease provided that in the event “a” violates the
contract, “b” may file suit in manila. “a’s” residence, and if “b” violates the contract,
“a” may sue “b” in malolos. “b” violated the contract, entitling “a” to sue for
ejectment.
If you were the lawyer of “a”, where and which court can you lawfully file the
action for ejectment? Explain. (1987)
Suggested answer:

Rule 71: contempt

Contempt (2015)
Aldrin entered into a contract to sell with neil over a parcel of land. The contract
stipulated a p500,000.00 down payment upon signing and the balance payable in
twelve (12) monthly installments of p100,000.00. Aldrin paid the down payment and had
paid three (3) monthly installments when he found out that neil had sold the same
property to yuri for p1.5 million paid in cash. Aldrin sued neil for specific performance
with damages with the rtc. Yuri, with leave of court, filed an answer-in-intervention as he
had already obtained a tct in his name. After trial, the court rendered judgment ordering
aldrin to pay all the installments due, the cancellation of yuri’s title, and neil to execute a
deed of sale in favor of aldrin. When the judgment became final and executory, aldrin
paid neil all the installments but the latter refused to execute the deed of sale in favor of
the former. Aldrin filed a “petition for the issuance of a writ of execution with proper
notice of hearing. The petition alleged, among others, that the decision had become
final and executory and he is entitled to the issuance of the writ of execution as a matter
of right. Neil filed a motion to dismiss the petition on the ground that it lacked the
required affidavit against forum shopping.
(a) should the court grant neil’s motion to dismiss? (3%)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Despite the issuance of the writ of execution directing neil to execute the deed of sale in
favor of aldrin, the former obstinately refused to execute the deed.
(b) what is aldrin’s remedy? (2%)

Suggested answer
(a) no. The motion to dismiss should be denied because certification against forum
shopping is only required in a complaint or other initiatory pleading (section 5, rule 7,
rules of court; arquiza v. Ca, g.r. No 160479, june 8, 2005). Since a petition for the
issuance of a writ of execution is not an initiatory pleading, it does not require a
certification against forum shopping.
[note: the committee respectfully recommends a liberal approach in checking the
answer to question viii, should the examinees consider the “petition for the issuance of a
writ of execution” an initiatory pleading or question the correct ness of the trial court’s
decision. The contract with aldrin is a contract to sell with the purchase price not fully
paid, while that of yuri is a perfected contract of sale, plus delivery of the public
document and issuance of tct, making yuri the owner of the land].
(b) aldrin may move for the issuance of a court order directing the execution of the deed
of sale by some other person appointed by it. Under section 10, rule 39 of the rules of
court, if a judgment directs a party to execute a conveyance of land or personal
property, or to deliver deeds or other documents, or to perform, any other specific act in
connection therewith, and the party fails to comply within the time specified, the court
may direct the act to be done at the cost of the disobedient party by some other person
appointed by the court and the act when so done shall have like effect as if done by the
party. If real or personal property is situated v:ithin the philippines, the court in lieu of
directing a conveyance thereof may by an order divest the title of any party and vest it in
others, which shall have the force and effect of a conveyance executed in due form of
law.
The phrase “some other person appointed by the court” may refer to the branch clerk of
court, sheriff or even the register of deeds, and their acts when done under such
authority shall have the effect of having been done by neil himself.
Alternative answer
(b) aldrin may also move that neil be cited for contempt because of his obstinate refusal
to comply with the judgment of the court to execute a deed of sale.
Available remedies (2014)
Mr. Avenger filed with the regional trial court (rtc) a complaint against ms. Bright for
annulment of deed of sale and other documents. Ms. Bright filed a motion to dismiss the
complaint on the ground of lack of cause of action. Mr. Avenger filed an opposition to
the motion to dismiss.

State and discuss the appropriate remedy remedies under each of the following
situations: (6%)
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

(a) if the rtc grants ms. Bright’s motion to dismiss and dismisses the complaint on the
ground of lack of cause of action, what will be the remedy/remedies of mr. Avenger?

Suggested answers:

Mr. Avenger can choose any of the following remedies:

(1) mr. Avenger may file a motion for reconsideration.

If denied, he could file an appeal to the court of appeals under rule 41 since a dismissal
based on lack of cause of action (under rule 33) is appealable.

(2) mr. Avenger may file a motion for reconsideration.

If the same is denied, he could file a petition for certiorari under rule 65 because a
dismissal based on failure to state a cause of action is considered without prejudice and
therefore an interlocutory order which cannot be a subject of an appeal under

Rule 41 of the rules of court.

(3) mr. Avenger may file a motion for reconsideration.

If the same is denied, he can simply re-file the complaint because an order granting a
motion to dismiss based on failure to state a cause of action is without prejudice to the
filing of another complaint (section 5, rule 16, rules of court).

(4) mr. Avenger may amend his complaint, as a matter of right, since a motion to
dismiss is not a responsive pleading (irene marcos araneta v. Court of appeals, g.r. No.
154096, august 22, 2008).

If the rtc denies ms. Bright’s motion to dismiss, what will be her remedy/remedies?

Suggested answers:

(1) ms. Bright may file a motion for reconsideration.

If the same is denied, she could file a special civil action for certiorari under rule 65 of
the rules of court.

An order denying a motion to dismiss is interlocutory because it does not finally dispose
of the case, and, in effect, directs the case to proceed until final adjudication by the
court. Hence, a special civil action on certiorari is the appropriate remedy (section 1,
rule 41, rules of court; marmo v. Anacay, g.r. No.182585, november 27, 2009).

(2) ms. Bright may file an answer within the balance of
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The period from the filing of his motion to dismiss but not less than five (5) days, and
raise affirmative defenses therein (sections 4 and 6, rule 16, rules of court).

(c) if the rtc denies ms. Bright’s motion to dismiss and, further proceedings, including
trial on the merits, are conducted until the rtc renders a decision in favor of mr. Avenger,
what will be the remedy/remedies of ms. Bright?

Suggested answers:

Ms. Bright may avail of the following remedies before the finality of the decision:

1. A motion for reconsideration (section 1 rule 37)

2. A motion for new trial (section 1 rule 37)

3. Appeal (rules 40, 41, 42, 43 and 45).

After the finality of the decision, ms. Bright can avail of the following:

1. Petition for relief (rule 38)

2. Annulment of judgment (rule 47)

3. Petition for certiorari (rule 65)

Question no. 5(1995)

3. Suppose that by virtue of an execution of the judgment in an ejectment case
defendant was successfully ousted from the property in litigation and plaintiff was lawfully
placed in possession thereof, but seven (7) years later defendant re-entered the property
and forcibly took over possession, can plaintiff move that defendant be declared in
indirect contempt? Explain.
Answer:

3. Yes, because the defendant violated sec. 3(14 of rule 71 when after being ousted from
the property in litigation and the plaintiff was lawfully placed in possession. He re-enters
the property and forcibly took over possession.

Question no. 13 (1993)

In an action for injunction and damages. The plaintiff applied for a temporary
restraining order (or m10") and preliminary injunction. Upon filing of the complaint, the
court issued a tro and set the application for preliminary injunction for hearing.

As the 20-day lifetime (january 3 to 23, 1993) of the tro was about to expire. The court
issued an order dated january 21. 1993 extending the effectivity of the tro for another
twenty days (january 24, 1993 to february 13. 1993).
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

On march 5, 1993, the court, after hearing, dented the application for preliminary
injunction.

Supposing that on january 28. 1993, the defendant committed an act in violation of
the tro. Is he guilty of indirect contempt? Explain.

Answer:

No. Because in order to constitute indirect contempt, the writ disobeyed must be lawful
in thisease, the court had no authority to extend the effectivity of the tro for another twenty
days.. Consequently, the defendant did not commit indirect contempt by committing an act
on january 28. 1993 in violation of tro. The extension was null and void. (carbungeo
us. Court of appeals. 181 scra 3131

The 1991 revised rule on summary procedure

Question (2017)
B. Rules on summary procedure

B. Two dismissal rule/ dismissal of action

Suggested answer
No, yana cannot successfully invoke the two-dismissal rule: in order for the two-
dismissal rule to apply, rule 17, section 1 of the rules of court requires that both
dismissals through plaintiff’s notices were made by a competent court.
Moreover, in ching v. Cheng (g.r. No. 175507, october 8, 2014), the supreme
court ruled that the following requisites should concur for the two-dismissal
rule to apply:
(a) there was a previous case that was dismissed by a competent courts
(b) both cases were based on or include the same claim;
(c) both notices for dismissal were filed by the plaintiff; and.
(d) when the motion to dismiss filed by the plaintiff was consented to by the
defendant on the ground that the latter paid and satisfied all the claims of the
former.
In this case, the makati city rtc had no jurisdiction over the first complaint which
was dismissed through agatha’s notice, because it is below its jurisdictional
amount of at least p 400,000.00. Therefore, the two-dismissal rule can not be
successfully invoked in this case.

Question: (2004)

information had no authority to do so. The metc denied the motion on the ground that it
is a prohibited motion under the said rule.

were the rtc’s orders denying due course to the petition as well as denying the
motion for reconsideration correct? Reason.

Suggested answer:

the rtc’s orders denying due course to the petition for certiorari as well as denying
the motion for reconsideration are both not correct. The petition for certiorari is a
prohibited pleading under section 19 (g) of the revised rule on summary procedure and
the motion for reconsideration, while it is not a prohibited motion (lucas v. Fabros, am
no. Mtj-99-1226, january 31, 2000, citing joven v. Court of appeals, 212 scra 700, 707-
70 [1992]), should be denied because the petition for certiorari is a prohibited pleading.
77.
for failure of the tenant, x, to pay rentals, a, the court appointed administrator of
the state of henry datu, decides to file an action against the former for the
recovery of possession of the leased premises located in davao city and for the
payment of due accrued rentals in the total amount of p25,000.
a. What is the court of proper jurisdiction and venue of the intended action?
b. Supposing that referral is necessary, but the complaint is filed without
such referral, may it be dismissed on the ground of lack of jurisdiction?
c. If the case is filed with the municipal trial court in cities (mtcc), is it
covered by the rule on summary procedure?
d. Supposing that a filed the complaint in the mtcc, and x filed an answer
wherein he interposed a counterclaim for moral damages in the amount of
p50,000 alleging that the complaint is unfounded and malicious, would
the mtcc have jurisdiction over the counterclaim? If x did not set up the
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

counterclaim, can he file a separate action to recover the damages? Can

a file a counterclaim to the counterclaim? (1991)

Suggested answer:

a. The court of proper jurisdiction and venue is the municipal trial court of
davao city, since this is an action of illegal detainer and the leased
premises are located in davao city.
b. No, because lack of referral affects only the cause of action, not
jurisdiction, and the former may be deemed waived if not raised in a
motion to dismiss or an answer.
c. No, it is not covered by the rule on summary procedure in any of the lower
courts, because the unpaid rentals exceed p20,000.00 (sec. 1-a-1 of rule
on summary procedure)
d. No, because the counterclaim exceeds the jurisdictional amount of
p20,000.00.
e. since the claim for damages is not within the jurisdiction of the
mtcc, it is not compulsory counterclaim and x can file a separate action in
the rtc to recover the damages. (reyes v. Ca, 38 scra 130)
yes, a can include a counterclaim in his answer to counterclaim.
(sec. 10 of rule 6)

Alternative answer:

a. If the action filed is for recovery of possession or accion publiciana, the

regional trial court of davao city would have jurisdiction and the venue
would also be in davao city.
b. No, because lack of referral would merely render the action premature for
failure to comply with a condition precedent.
c. N/a
d. The mtcc would have jurisdiction over the counterclaim if the excess of the
amount thereof over p20,000.00 is waived by x. (agustin v bocalan, 135
scra 340)

78. Juan santos appeals the decision against him to the regional trial court (rtc) which
affirmed in toto the lower court’s decision. Juan santos then filed a motion for
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

reconsideration. Maria cruz moves to strike out the motion for reconsideration as it
is a prohibited pleading under the rules on summary procedure.

is this tenable? Decide with reasons. (1990)

Suggested answer:

No, because the rule on prohibited pleadings in summary procedure is applicable

only to the metropolitan and municipal trial courts (jakihaca v. Aquino, jan. 12,
1990)

79. Dalmacio filed a civil case against cadio for the collection of p5,000 in the mtc of
bacoor. After an examination of the complaint, the judge dismissed the case
outrightdue to improper venue. Dalmacio filed a motion for reconsideration of the
order of dismissal , contending that a provision in the promissory note attached to
the complaint and made as the basis thereof clearly shows that the case must be
filed with the bacoor court. Although realizing and admitting that he committed an
error in dismissing the case, the judge said that he could not revoke his previous
order because no action can be taken on the motion for reconsideration, which is
prohibited under the summary rules. Is the judge correct? Explain. (1989)

Suggested answer:

No, because while a motion for reconsideration is not allowed under summary
procedure rules in order to avoid undue delay, a revocation of the erroneous
order would avoid the delay occasioned by an appeal by dalmacio from the order
of dismissal and a reversal of the said order by the regional trial court. (cf. Heirs
of ricardo olivas vs. Flor, 161 scra 393)

Alternative answer:

1. No, because the judge may correct his error under the inherent powers of the
court to make the order conforms to law and justice.
2. Yes, because the summary procedure rules do not allow the filling of a motion
for reconsideration. The remedy of the plaintiff is to appeal from the order.

80. Distinguish between the effects of the failure to file an answer in a civil case
governed by summary rules and in a civil case governed by the regular provisions
of the rules of court. (1989)

Suggested answer:
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Under rules on summary procedure, upon the failure to file an answer in a civil
case, the court, motu proprio, or upon the motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and limited
to what is prayed for therein except as to the amount of damages which the court
may reduce in its discretion. (sec. 5)
Under the regular procedure, upon the failure to file an answer, the court shall,
upon the motion of the plaintiff and proof of such failure, declare the defendant in
default. Thereupon, the court shall proceed to receive the plaintiff’s evidence and
render judgment granting him such relief as the complaint and the facts proven
may warrant. Such judgment shall not exceed the amount or be different in kind
from that prayed for. (sec.1 and 5 of rule 18)

81. A. In what civil cases is the summary procedure before metc, mtc and mctc
applicable?
B. In what criminal cases is the summary procedure before the metc, mtc and
mctc applicable?

Suggested answer:

(a) Summary procedure is applicable in the following civil cases:

1) Cases of forcible entry and unlawful detainer, except where the question of
ownership is involved, or where the damages or unpaid rentals sought to be
recovered by the plaintiff exceed 20,000.00 at the time of the filing of the
complaint;
2) All other civil cases, except probate proceedings, falling within the jurisdiction
of the abovementioned courts, where the total amount of the plaintiff’s claim
does not exceed 10,000.00, exclusive if interest and costs

(b) It is applicable in the following criminal cases:

1) Violations of traffic laws, rules and regulations;
2) Violations of rentals laws
3) Violation of city or municipal ordinances
4) All other criminal cases where the penalty prescribed by law for the offense
charged does not exceed six moths of imprisonment, or a fine of 1,000.00 or
both, irrespective of other imposable penalties, accessory or otherwise, or of
the civil liability arising therefrom; provided, however, that in offenses involving
damage to property thru criminal negligence, this rule shall govern where
imposable fine does not exceed 10,000.00
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

The 2016 revised rules of procedure for small claims cases

Question (2018)
Danica obtained a personal loan of php 180,000 from dinggoy, payable in 18 equal
monthly) installments of php 10,000 until fully paid. In order to complete her payment at
an earlier date, danica instead paid php 20,000 monthly, and continued doing so until
the 15th month, which payments dinggoy all accepted. Later on, she realized that she
had overpaid dinggoy by 100% as she should have already completed payment in nine
(9) months. She demanded the return of the excess payment, but dinggoy completely
ignored her. Thus, danica availed of the rules of procedure for small claims cases by
filing before the municipal trial court (mtc) a statement of claim, together with the
required documents.
Should the mtc proceed with the case under the: (i) revised rules summary procedure;
(ii) the rules of procedure for small claims; or (iii) the regular procedure for civil cases?
(5%)

Suggested answer:
The municipal trial court (mtc) should try the case under the revised rules of procedures
for small claims (the revised rules). As the latest amendment of said rules (en banc
resolution dated 10 july 2018 in a.m. No. 08-8-7-sc), the mtc shall apply the revised
rules in all actions which are purely civil in nature where the claim or relief prayed for is
solely for payment or reimbursement of sum of money not exceeding php300,000,
exclusive of interest and cost.

Question (2016)
Pedro and luan are residents of barangay ifurug, municipality of dupac, mountain
province. Pedro owes juan the amount of p50,000.00. Due to non-payment, juan
brought his complaint to the council of elders of said barangay which implements the
bodong justice system. Both appeared before the council where they verbally agreed
that pedro will pay in installments on specific due dates. Pedro reneged on his promise.
Juan filed a complaint for sum of money before the municipal trial court (mtc). Pedro
filed a motion to dismiss on the ground that the case did not pass through the barangay
conciliation under r.a. No. 7160 and that the rtc, not the mtc, has jurisdiction. In his
opposition, juan argued that the intervention of the council of elders is substantial
compliance with the requirement of r.a. No. 7160 and the claim of p50,000.00 is clearly
within the jurisdiction of the mtc. As mtc judge, rule on the motion and explain. (5%)
Suggested answer
The motion to dismiss should be denied. As a general rule, no complaint involving any
matter within the authority of the lupon shall be instituted or filed directly in court for
adjudication unless there has been a confrontation between the parties in the barangay
and no settlement was reached (section 412(a) of republic act no. 7160; april martinez,
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

v. Rodolfo g. Martinez, g.r. No. 162084, june 28, 2005). However, in barangays where
majority of the inhabitants are members of indigenous cultural communities, local
systems of settling disputes through their councils of datus or lders shall be recognized
without prejudice to the applicable provisions of e local government code (sections 399,
r.a. 7160). As a consequence, customs and traditions of indigenous cultural
communities shall be ned in settling disputes between members of the cultural
communities (sections 412, r.a. 7160), thus, the confrontation between pedro and
juan before the council of elders of their barangay is sufficient compliance with the
precondition for filing the case in court under section 412 of r.a. No. 7160 (zamora v.
Heirs of izquierdo, g.r. No. 146195, november 18, 2004).
Be that as it may, it is well-settled that the mode of enforcement of an amicable
settlement under the katarungan pambarangay law does not rule out the right of
rescission under art. 2041 of the civil code (crisanta miguel v. Montanez, g.r. No.
191336, january 25, 2014). Accordingly, when juan filed a complaint for sum of money
in the mtc, he is deemed to have rescinded the compromise agreement reached before
the council of elders of the barangay. Henceforth, pedro is incorrect in alleging that the
rtc, not the mtc, has jurisdiction over juan’s claim. Considering that the claim is only for
p50,000.00, the case is within the exclusive jurisdiction of the mtc under b.p. Blg. 129
and may proceed pursuant to a.m. No. 08-8-7-sc or the “rules of procedure for small
claims cases.” Notably, a motion to dismiss is among the prohibited pleadings under
section 14(a) of said rules. Similarly, juan’s claim of p50,000.00 may be governed by the
1991 rules on summary procedure which clearly falls within the jurisdiction of the mtc,
ergo, the motion to dismiss based on lack of jurisdiction over the subject matter should
be denied (section 19 (a), 1991 rules on summary procedure).
Small claims (2013)
While leisurely walking along the street near her house in marikina, patty unknowingly
stepped on a garden tool left behind by ccc, a construction company based in makati.
She lost her balance as a consequence and fell into an open manhole. Fortunately,
patty suffered no major injuries except for contusions, bruises and scratches that did not
require any hospitalization. However, she lost self-esteem, suffered embarrassment and
ridicule, and had bouts of anxiety and bad dreams about the accident. She wants
vindication for her uncalled for experience and hires you to act as counsel for her and to
do whatever is necessary to recover at least php100,000 for what she suffered.

What action or actions may patty pursue, against whom, where (court and venue), and
under what legal basis? (7%)

Suggested answer:

Patty may undertake the following remedies:

A) she may file a small claims case against ccc company for damages arising from fault
or negligence before the mtc where she or the defendant resides, at her option (a.m.
No. 8-8-7-sc in relation to section 2, rule 4, rules of court).
B) she may also file an independent civil action against the company based on quasi-
delict under article 2176 of the civil code. The law states that, whoever by act or
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

omission causes damage to another, there being fault or negligence is obliged to pay
for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict.
C) patty can also file a civil action for damages against the city of marikina for
maintaining an open manhole where she unfortunately fell. Under article 2189 of the
civil code, provinces, cities and municipalities shall be liable for damages for the death
of, or injuries suffered by, any person by reason of the defective condition of roads,
streets, bridges, public buildings, and other public works under their control or
supervision.

Small claims (2013)

As a new lawyer, attorney novato limited his practice to small claims cases, legal
counseling and the notarization of documents. He put up a solo practice law office and
was assisted by his wife who served as his secretary/helper. He used a makeshift hut in
a vacant lot hear the local courts and a local transport regulatory agency. With this
practice and location, he did not have big-time clients but enjoyed heavy patronage
assisting walk-in clients.

(a) what role can attorney novato play in small claims cases when lawyers are not
allowed to appear as counsel in these cases? (3%)

(b) what legal remedy, if any, may attorney novato pursue for a client who loses in a
small claims case and before which tribunal or court may this be pursued? (4%)

Suggested answer:

(a) atty. Novata may only give counseling and assist claimants in accomplishing the
statement of claims and the affidavits necessary to initiate a small claims action. He can
also notarize the aforementioned documents since the statement of claims and
response are required to be verified (sec. 7, rules of procedure for small claims, a.m.
No. 8-8-7 sc).

Suggested answer:

(b) atty. Novata may fille a petition for certiorari before the rtc since a decision in small
claims cases is final and unappealable (sec. 23, a.m. No. 8-8-7 $c). The petition for
certiorari should be filed before the rtc conformably to the principle of judicial hierarchy.

Barangay conciliation proceedings(revised katarungang pambarangay law

Question no. 14 (1995)

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Alice, a resident of valenzuela. Metro manila, filed with the metropolitan:ft-

After pre-trial the court motu proprio referred the case for amicable
settlement between the parties to the lupon tagapayapa of barangay 2, zone
3, of valenzuela, where the factory is located rosa questioned the order
contending that the court had no authority to do so as both parties had already
gone through pre-trial where amicable settlement was foreclosed and the parties
were already going to trial.

1. Comment on rosa's contention. Explain.

2. Rosa also opposed the referral to the lupon tagapayapa of barangay 2.

Zone 3. Claiming that the venue was wrong as the proper lupon was that of barangay
1. Zone 5, where she and alice reside.

Is rosa's opposition valid? Explain.

3. Suppose that the lupon of barangay 2, zone 3. Is successful in forging an

amicable settlement between alice and rosa, is the compromise immediately
executory? Explain.

4. How, when and by whom shall the compromise agreement be enforced?

Explain.

Answer:

2. No, because the law also provides that the venue of disputes arising at the
workplace of the contending parties shall be brought in the barangay where such
workplace is located. (sec. 409[d])

3. No. Because any compromise settlement shall be submitted to the court which
referred the case for approval. (sec. 416)

4.Upon approval thereof. It shall have the force and effect of a judgment of the court
and shall be enforced in accordance with section 6. Rule 39.
1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

Remedial Law Bar Exam 2017 Questions and Answers
No ratings yet
Remedial Law Bar Exam 2017 Questions and Answers
8 pages
2017 Bar Examinations Remedial Law: Suggested Answers To
100% (5)
2017 Bar Examinations Remedial Law: Suggested Answers To
11 pages
Bar Question
No ratings yet
Bar Question
9 pages
Civil Procedure Bar Question 16
100% (2)
Civil Procedure Bar Question 16
2 pages
Labor Relations Bar Questions
100% (1)
Labor Relations Bar Questions
59 pages
Remedial Law Suggested Bar Answers
100% (10)
Remedial Law Suggested Bar Answers
56 pages
Legal Insights: Civil Action & Arrest
No ratings yet
Legal Insights: Civil Action & Arrest
4 pages
Corporation 2018 2019 Bar Q and A
100% (4)
Corporation 2018 2019 Bar Q and A
8 pages
Bar Questions - 10 Years
No ratings yet
Bar Questions - 10 Years
28 pages
31 Civil Procedure Bar Questions With Answers (EASY-TO-FOLLOW FORMAT)
100% (4)
31 Civil Procedure Bar Questions With Answers (EASY-TO-FOLLOW FORMAT)
23 pages
AMBOY-Civil Procedure Midterm Exam
No ratings yet
AMBOY-Civil Procedure Midterm Exam
4 pages
Bar Exam Questions On Preliminary Attachment
100% (2)
Bar Exam Questions On Preliminary Attachment
20 pages
Suggested Answers To 2016 Remedial Law Bar Exam
No ratings yet
Suggested Answers To 2016 Remedial Law Bar Exam
7 pages
2020/2021 Bar Examinations 2
No ratings yet
2020/2021 Bar Examinations 2
11 pages
Civil Procedure Prelims Bar Questions
100% (1)
Civil Procedure Prelims Bar Questions
88 pages
Civil Procedure Exam 2021
100% (1)
Civil Procedure Exam 2021
4 pages
Compilation of Bar Questions and Suggested Answers Civil Law
100% (7)
Compilation of Bar Questions and Suggested Answers Civil Law
118 pages
Commercial Law Suggested Answers To Bar Exams
88% (8)
Commercial Law Suggested Answers To Bar Exams
79 pages
CIVIL-PROCEDURE-question and Answer-2
80% (5)
CIVIL-PROCEDURE-question and Answer-2
49 pages
Remedial Law Bar 2023
50% (2)
Remedial Law Bar 2023
8 pages
Civil Law Bar Exam Answers
100% (1)
Civil Law Bar Exam Answers
13 pages
Remedial Law 2022 Questions and Suggested Answers Nos. 1 and 2
100% (3)
Remedial Law 2022 Questions and Suggested Answers Nos. 1 and 2
1 page
Bar Questions - Appeals
100% (3)
Bar Questions - Appeals
6 pages
Suggested Answers To 2013 Remedial Law Bar Essay Exam
100% (1)
Suggested Answers To 2013 Remedial Law Bar Essay Exam
14 pages
Consolidated Bar Questions and Suggested Answers: Judge Cheryll Ann Chamen-Paronda JMC College of Law SY 2020-2021
100% (4)
Consolidated Bar Questions and Suggested Answers: Judge Cheryll Ann Chamen-Paronda JMC College of Law SY 2020-2021
27 pages
Suggested Answers PUBLIC INTERNATIONAL LAW
100% (5)
Suggested Answers PUBLIC INTERNATIONAL LAW
51 pages
CRIMPRO Bar Exam Questions 2015-2016
No ratings yet
CRIMPRO Bar Exam Questions 2015-2016
6 pages
Remedial Law Bar Q&A 1987-2010
75% (4)
Remedial Law Bar Q&A 1987-2010
295 pages
Answer Ni Pasaway Haha
100% (2)
Answer Ni Pasaway Haha
17 pages
Bar Questions Paras Bar Question
No ratings yet
Bar Questions Paras Bar Question
8 pages
Suggested Answers To 2013 Remedial Law Bar Exam Essay Questionsvbcgxhgh
100% (2)
Suggested Answers To 2013 Remedial Law Bar Exam Essay Questionsvbcgxhgh
13 pages
2019 Remedial Law Bar Exam Guide
100% (2)
2019 Remedial Law Bar Exam Guide
17 pages
Bar Questions and Answers (Political Law)
100% (1)
Bar Questions and Answers (Political Law)
6 pages
Remedial Law Bar Questions
0% (1)
Remedial Law Bar Questions
13 pages
Bar Q and A
No ratings yet
Bar Q and A
4 pages
Credit Bar Questions
100% (3)
Credit Bar Questions
21 pages
Remedial Law Concept Part1
No ratings yet
Remedial Law Concept Part1
106 pages
Bar Questions and Answers For Credtrans PDF
100% (1)
Bar Questions and Answers For Credtrans PDF
120 pages
Bar Questions in Legal Ethics
No ratings yet
Bar Questions in Legal Ethics
75 pages
Political Law Bar Q&A
100% (3)
Political Law Bar Q&A
88 pages
Final Exam in Corp. Law. - June 14, 2021
No ratings yet
Final Exam in Corp. Law. - June 14, 2021
6 pages
Mercantile Law Mock Bar Answers
100% (2)
Mercantile Law Mock Bar Answers
7 pages
Credit Transactions Reviewer Bar Q A PDF Free
No ratings yet
Credit Transactions Reviewer Bar Q A PDF Free
10 pages
Property Relations in Void Marriages
No ratings yet
Property Relations in Void Marriages
9 pages
Procedure and Ethics (Suggested Answers) - RSE
67% (3)
Procedure and Ethics (Suggested Answers) - RSE
19 pages
Bar Questions and Suggested Answers Provisonal Remedies and Special Civil Actions - 2003-2015
100% (6)
Bar Questions and Suggested Answers Provisonal Remedies and Special Civil Actions - 2003-2015
22 pages
COL (Finals) Bar Q and A PDF
No ratings yet
COL (Finals) Bar Q and A PDF
6 pages
Bar Answeers
No ratings yet
Bar Answeers
9 pages
Answers To 2018 Bar Exam in Commercial Law
67% (3)
Answers To 2018 Bar Exam in Commercial Law
2 pages
Tax1 Dimaampao Lecture Notes
100% (1)
Tax1 Dimaampao Lecture Notes
61 pages
Bar Questions and Answers On Provisional Remedies 1997-2006
100% (4)
Bar Questions and Answers On Provisional Remedies 1997-2006
6 pages
Oblicon Bar Questions and Suggested Answers
100% (3)
Oblicon Bar Questions and Suggested Answers
6 pages
Partnership and Agency Bar Qa
95% (21)
Partnership and Agency Bar Qa
58 pages
Bar Q & A On Property
100% (1)
Bar Q & A On Property
8 pages
2017 Remedial Law
No ratings yet
2017 Remedial Law
13 pages
Questionnaire
No ratings yet
Questionnaire
34 pages
Bar Exam Civil Procedure Q&A
No ratings yet
Bar Exam Civil Procedure Q&A
7 pages
Bar Q & A in Remedial Law
No ratings yet
Bar Q & A in Remedial Law
3 pages
2017 Remedial Suggested Answer
100% (1)
2017 Remedial Suggested Answer
24 pages
2018 Rem Bar Q and A
No ratings yet
2018 Rem Bar Q and A
16 pages
Corpo
No ratings yet
Corpo
7 pages
Bar Questions - Civil Law
100% (2)
Bar Questions - Civil Law
119 pages
CLAC Method
No ratings yet
CLAC Method
1 page
DIGESTS Intl Corporate Bank vs. IAC
No ratings yet
DIGESTS Intl Corporate Bank vs. IAC
3 pages
Lacayanga Midterm Legal Forms
No ratings yet
Lacayanga Midterm Legal Forms
10 pages
Republic v. Roasa G.R. No. 176022 PDF
No ratings yet
Republic v. Roasa G.R. No. 176022 PDF
4 pages
Manalansang v. Manalong G.R. No. L-13646
No ratings yet
Manalansang v. Manalong G.R. No. L-13646
2 pages
Associated Insurance v. Iya G.R. No. L-10837-38 PDF
No ratings yet
Associated Insurance v. Iya G.R. No. L-10837-38 PDF
2 pages
Mindanao Pres Co. v. City Assessors G.R. No. L-17870
No ratings yet
Mindanao Pres Co. v. City Assessors G.R. No. L-17870
2 pages
Tumalad v. Vicencio G.R. No. L-30173 PDF
No ratings yet
Tumalad v. Vicencio G.R. No. L-30173 PDF
4 pages
Customs vs. Capistrano Case 1960
No ratings yet
Customs vs. Capistrano Case 1960
2 pages
Valley Golf v. Caram G.R. No. 158805 PDF
No ratings yet
Valley Golf v. Caram G.R. No. 158805 PDF
7 pages
Bill of Lading I. Prohibited and Limiting Stipulations Invalid Stipulations Valid Stipulations
100% (1)
Bill of Lading I. Prohibited and Limiting Stipulations Invalid Stipulations Valid Stipulations
4 pages
PAL V COA 245 - SCRA - 39
No ratings yet
PAL V COA 245 - SCRA - 39
7 pages
United States v. Omar Bennett, 3rd Cir. (2014)
No ratings yet
United States v. Omar Bennett, 3rd Cir. (2014)
6 pages
Most Corrupt 2011: Rep. Nick Rahall (D-WV)
No ratings yet
Most Corrupt 2011: Rep. Nick Rahall (D-WV)
7 pages
Floridablanca Pampanga
No ratings yet
Floridablanca Pampanga
7 pages
Act 92 - Subordinate Courts Act 1948
No ratings yet
Act 92 - Subordinate Courts Act 1948
53 pages
Legal Implications of Party Death
No ratings yet
Legal Implications of Party Death
11 pages
Cases Full
No ratings yet
Cases Full
96 pages
Death Penalty Arguments Brief of Debate
No ratings yet
Death Penalty Arguments Brief of Debate
17 pages
Equal Pay Lawsuit: Mullenix vs. UT Austin
No ratings yet
Equal Pay Lawsuit: Mullenix vs. UT Austin
28 pages
R. v. Big M Drug Mart LTD., (1985) 1 S.C.R. 295
No ratings yet
R. v. Big M Drug Mart LTD., (1985) 1 S.C.R. 295
81 pages
Filipino Grievances Against Governor Wood
100% (1)
Filipino Grievances Against Governor Wood
3 pages
NMCC III Moot Proposition
No ratings yet
NMCC III Moot Proposition
14 pages
Your Right of Defense Against Unlawful Arrest 01
No ratings yet
Your Right of Defense Against Unlawful Arrest 01
10 pages
Aklfiling
No ratings yet
Aklfiling
8 pages
Hiyas Savings v. Acuna Case Digest
100% (1)
Hiyas Savings v. Acuna Case Digest
2 pages
Marquez vs. Hon. Secretary of Labor, G.R. No. 80685, March 16, 1989
No ratings yet
Marquez vs. Hon. Secretary of Labor, G.R. No. 80685, March 16, 1989
9 pages
Abilene Motion To Expunge 2
No ratings yet
Abilene Motion To Expunge 2
5 pages
Citizens and The Law Chapter 15 Vocabulary Builder
No ratings yet
Citizens and The Law Chapter 15 Vocabulary Builder
5 pages
Doctrine of Ultra Vires
100% (1)
Doctrine of Ultra Vires
13 pages
Equity & Trusts - The Nature of Fiduciary Liability in English Law
No ratings yet
Equity & Trusts - The Nature of Fiduciary Liability in English Law
14 pages
Florida Appellate Law Guide
No ratings yet
Florida Appellate Law Guide
412 pages
Law and Justice in Australia Foundations of The Legal System 3rd Edition Prue Vines PDF Download
100% (1)
Law and Justice in Australia Foundations of The Legal System 3rd Edition Prue Vines PDF Download
55 pages
Sanciangco vs. Rono
No ratings yet
Sanciangco vs. Rono
2 pages
Boris Stern California Appeal Opinion Regarding Reclassification Limited Civil To Unlimited Civil
No ratings yet
Boris Stern California Appeal Opinion Regarding Reclassification Limited Civil To Unlimited Civil
14 pages
MLCC Code and Rules 343265 7
No ratings yet
MLCC Code and Rules 343265 7
291 pages
Rules 1-71 Rules of Court
No ratings yet
Rules 1-71 Rules of Court
91 pages
2015 Bar Exam Suggested Answers in Civil Law by The UP Law Complex
100% (3)
2015 Bar Exam Suggested Answers in Civil Law by The UP Law Complex
9 pages
NCERT Polity Test: Key Constitutional Insights
No ratings yet
NCERT Polity Test: Key Constitutional Insights
14 pages
Bowater V Rowley Regis Corporation (1944) KB 476 - CA
No ratings yet
Bowater V Rowley Regis Corporation (1944) KB 476 - CA
9 pages
Understanding Arrest Procedures
100% (1)
Understanding Arrest Procedures
89 pages

Almost

Uploaded by

Almost

Uploaded by

1987-2018 CIVIL PROCEDURE BAR EXAM QUESTIONS

RULE 1 GENERAL PROVISIONS

Incapable of pecuniary estimation (2017)

Hierarchy of courts (2017)

Jurisdiction over personal/real actions (2016)

Jurisdiction over subject matter (2015)

It is well settled that jurisdiction is determined by the allegations contained in the

Besides, the rules allow provisional determination of ownership in ejectment cases

No. The regional trial court was not correct.

Jurisdiction over subject matter (2015)

a. Distinguish error of jurisdiction from error of judgment. (2012)

Jurisdiction; unlawful detainer

Jurisdiction; rtc; metc

May the action prosper? Explain. (2009)

Yes, if the defendant would not file a motion to dismiss on ground of

Jurisdiction; over the plaintiff, subject matter

T h e f i r st g r o u n d ra i se d l a ck s me ri t b e ca u se jurisdiction over the

May the action prosper? Explain. (2009)

Yes, if the defendant would not file a motion to dismiss on ground of

Jurisdiction; rtc; counterclaim

Other suggested answer:

Jurisdiction; unlawful detainer

1. Housing and land use regulatory board

a) The motion should be granted. The Metropolitan Trial Court of Manila

1. Distinguish civil actions from special proceedings.

2.) The Rules of Court should be liberally construed in order to promote

In an action for unlawful detainer in the Municipal Trial Court (MTC),

Does the MTC have jurisdiction over the counterclaim?

The counterclaim is within the jurisdiction of the Municipal Trial Court

In an action for unlawful detainer in the Municipal Trial Court (MTC),

Is X’s defense tenable?

What is meant by 'hierarchy of courts"?(1996)

c) Motion to dismiss on the ground of violation of the right to a speedy trial.

Question no. 2 (1994)

1) The plaintiff in a special civil action for mandamus?

2) The defendant in an action for unlawful detainer?

3) A non-resident defendant who is not found in the philippines. In an action for

2) Jurisdiction is acquired over the person of the defendant in an action for

3) Jurisdiction cannot be acquired over the person of a non-resident defendant

Such jurisdiction can be acquired by the voluntary appearance of the non-resident

Question no. 17 (1993)

'original and exclusive jurisdiction of labor arbiters. Considering, however, that

Question no. I (1992)

Question no. X (1992)

Pernito, also known in the community as peregrino, filed a petition for

Was the court correct in denying the motion to dismiss? Explain.

b. Supposing that referral is necessary, but the complaint is filed without

a. If the action filed is for recovery of possession or accion publiciana, the

4. Sammy magdalo, executor of the estate of the deceased rolando aceron,

no, because the probate court has no jurisdiction to adjudicate title to

5. distinguish between error of judgment and error of jurisdiction. (1989)

Moreover, by answering the complaint and setting up their defense without

7. Norma is the owner of love and peace enterprises, a sole proprietorship

On the strength of article 1701 of the civil code, as follows:

(a) In a decision penned by justice abad santos (medina vs castro bartolome,

a. Yes, because the amount of the counterclaim, 15,000.00, is

possession is illegal from the beginning because the entry was

Presidential decree 1508

No, because a motion to dismiss is not allowed in summary procedure.

RULE 2: CAUSE OF ACTION

Misjoinder of cause of actions (2018)

Misjoinder of cause of actions (2017)

Splitting of a single cause of action (2017)

Joinder of causes of action (2015)

Actions; specific performance

Cause of Action 1998

Rule on Splitting Cause of Action

Joinder of Causes of Action

A. What is the rule on joinder of causes of action?

action pertaining to different venues or jurisdictions provided one cause

Give the effects of the Splitting a single cause of action.

Question no. 4 (1996)

Rule 3: parties to a civil action

Death of party; duty of counsel (2016)

Joinder of parties (2015)

No, kin ii chong cannot move to dismiss the complaint.