Civil Procedure Assignment 01/22/08

1. What are the 2 kinds of execution?
2. May an execution issue upon an interlocutory order?
3. What is a final order?
4. What is an interlocutory order?
5. What is the effect of a timely appeal on the judgment appealed from?
6. How may a final and executory judgment be enforced?
7. What court must execution be filed?
8. What is the remedy of the judgment obligee if the trial court refuses to issue writ?
9. What are the instances where even if judgment is already final and executory, court may still refuse to issue writ?
10. What is a dormant judgment?
11. What is the remedy if judgment is not executed within 5 years?
12. What are the requisites pending appeal?
13. What court should the motion pending appeal be filed?
14. May execution pending appeal be stayed? How?
15. Cite reasons that may justify execution pending appeal.
16. How may execution be enforced in case of death of a party?
17. Who is a third party claimant?
18. What is a third party claim? A claim by the civil defendant/respondent against a party not already named in a court or other adversarial proceeding.
19. Is there a right of redemption when the property of the judgment debtor has been sold?
20. Who can redeem?
    

Civil Procedure Assignment

Assignment for January 8-11, 2007:

Read Rule 17 to 21.

1. What is the effect of two-dismissal rule?
• The second dismissal shall be with prejudice
• Two dismissal rule - when the same complain had been twice dismissed by the plaintiff simply by filing a notice of dismissal nder Sec. 1 Rule 17, th second dismissal shall be with prejudice.
  
2. May the court dismiss the complaint on the complainant's motion?
• Yes, on the following grounds:
1. the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint (o.k.a. plaintiff is NON-SUITED)
2. the plaintiff fails to prosecute his action for an unreasonable length of time
3. the plaintiff fails to comply with the Rules of Court
4. the plaintiff fails to comply with any order of the Court
3. May the court dismiss the complaint on the plaintiff's motion?
• Yes, by filing a:
1. Notice of Dismissal - if the defendant's answer or counterclain has not yet been filed
2. Motion to Dismiss - if the defendant's answe or counterclaim has already been filed
   
4. What is the effect of dismissal by the court where there is no statement "with prejudice"?
• It depends
1. It shall be without prejudice if the dismissal was upon notice by the plaintiff, except when the dismissal operates as an adjudication upon the merits (Rule 17, Sec. 1)
2. It shall be without prejudice if the dismissal was upon motion by the plaintiff (Rule 17, Sec. 2)
3. It shall be with prejudice if the dismissal is ion motion by the defendant, or upon the court motu propio, on the grounds due to plaintiff's fault(Rule 17, Sec. 3)
   
5. What is pretrial?
6. What is the purpose of pretrial?
7. What is the effect of failure to mark exhibits during the pretrial?
   
8. What is the effect of failure by the plaintiff to appear at the pretrial conference?
   
9. What is the effect of failure by the defendant to appear at the pretrial conference?
10. Can the court set the pretrial?
11. What is a pretrial brief?
12. What is a pretrial order?
13. What is a motion for intervention?
14. Who may intervene?
15. What are the requisites for intervention?
16. What is a subpoena?
17. What are the different kinds of subpoena?
18. What do you mean by the 100-km rule?
19. Who may serve the subpoena?
20. What is the effect of disobedience to subpoena?

Civil Procedure Questions

1. What are the remedies of the plaintiff if the motion to dismiss is granted?

It depends on the ground specified in his motion to dismiss.
(a) If dismissal is without prejudice, the defendant may REFILE
(b) File an APPEAL if the grounds in the motion are based on prescription, res adjudicata, lis
pendens, or statute of frauds
(c) File for Certiorari under Rule 65 when there is grave abuse of discretion (Rule 16)


2. What are the effects of dismissal of complaint on the counterclaim?

When the complaint is dismissed upon motion of the plaintiff, The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action.

When the complaint is dismissed upon motion of the defendant or upon the court's own motion, it is without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (Rule 17)


3. A. What are the requisites before a party may be declared in default?

The following are the requisites before a party may be declared in default:
(a) failure of the party to file his answer within the time allowed;
(b) Motion of the claiming party;
(c) notice to the defending party;
(d) proof of failure to file answer;
(e) proof that the summons have been validly served;
(f) Hearing on the Motion to declare the party in default

Rule 9, Section 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, 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. Such reception of evidence may be delegated to the clerk of court.

B. What are the remedies of a party declared in default?

(a) file a Motion under oath to set aside the order of default if the default was due to fraud, accident, mistake, or excusable negligence
(b) file a Motion for New Trial if there is new evidence
(c) Petition for relief of judgment

4. What are the effects of a declaration or order of default?

(a) The party declared in default loses standing in trial
(b) Notice of subsequent proceedings must still be served to the default party
(c) He may participate in the trial but only as a witness for the other parties
(d) Declaration of default is not tantamount to an admission of the truth of the plaintiff's complaint because the former still has to present evidence

A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. [Rule 9, Section 3, sub-paragraph (a)]


5. What are the cases where an order of default cannot be made?

(a) Annulment of marriage;
(b) Declaration of nullity of marriage;
(c) Legal separation.

An order of default cannot be made in cases involving the annulment or declaration of nullity of marriage, or for legal separation. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. [Rule 9, Section 3, sub-paragraph (e)]


6. What are the modes of extra-territorial service?

(a) Personal service
(b) Publication plus registered mail
(c) Any other manner that the court may deem sufficient

Rule 14, Section 15. 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 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) days after notice, within which the defendant must answer.


7. What is the remedy of the defendant if the motion is denied?

Rule 16, Section 4. Time to plead. � If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period.


8. How is substituted service made?

Rule 13, Section 8. If service of pleadings, motions, notices, resolutions, orders and other papers filed with the court cannot be made either personally or by mail, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.

Rule 14, Section 7. If, for justifiable causes, the defendant cannot be served with summons within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.


9. What are the 3 options available to defendant upon receipt of complaint?

(1) File Motion to Dismiss
(2) File a Motion for Bill of Particulars
(3) File an Answer (may be with counter-claim, third-party claim, etc.)