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?
    

Administrative Code of 1987

For administrative law midterms (under Dean Manriquez), get a copy of the Administrative Code of 1987.


view full text of Administrative Code of 1987

Good luck!

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?

Transportation Law Prelims

First of all, if you haven't read the digests, please feel free to browse them at the following links:

Dangwa Transportation

Japan Airlines V. Asuncion

I actually did not finish digesting all the required cases but if you're interested to browse other case digests in transportation law, please visit arellanolaw.net. You can find about 200 case digests concerning Transportation Law.

Ok, let's begin.

Contract of Transportation - a contract whereby a person obligates himself to transport persons or property from one place to another for a consideration. It may involve either the carriage of goods or carriage of passengers. The person who obligates to transport the goods or passengers may be a private carrier or common carrier.

Perfection of the contract.
There are actually two types of contract involved in here:

1. Contract to carry - perfected by mere consent
2. Contract of carriage (or of common carriage) - perfected once the passenger has already purchased a ticket and boarded the carrier (in case of airplanes and trains), attempted to board the conveyances (in cases of buses, jeepneys, taxi), or once the goods are unconditionally placed in the possession and control of the carrier

What are common carriers?
Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services to the public. They are public utilities impressed with public interest and concern.

Tests in determining whether a a party is a common carrier:

1. He must be engaged and holds himself out as ready to engage in the business of carrying goods for others as a public employment;
2. He must undertake to carry goods of the kind to which his business is confined;
3. He must undertake to carry by the method by which his business is conducted and over his established roads;
4. The transportation must be for hire.
   

Characteristics of common carriers:

1. carrying of persons or goods or both may be the principal business activity or merely an ancillary activity;
2. transportation service may be offered on a regular, scheduled, occasional, episodic, or unscheduled basis;
3. the services may be offered to the general public or only to a narrow segment of the general population;
4. with or without a Certificate of Public Convenience;
5. no distinction as to means of transporting, as long as it is by land, water or air;
6. it does not only have to be transportation by motor vehicle;
7. a common carrier may have no fixed or publicly known route, maintains no terminal, and doesn't issue tickets;
8. a person or entity need not be engaged in the business of public transportation for the provisions of the Civil Code on common carriers to apply to them.

Effect of Charter Party
A charter party may transform a common carrier into a private carrier in case of a bareboat or demise charter where the charterer mans the vessel with its own people and becomes, in effect, the owner for the voyage or service stipulated.


Towage - where one vessel is hired to bring another vessel to another place
Arrastre - receive, handle, care for and deliver merchandise passing through ports
Stevedoring - loading and unloading of coastwise vessels calling at the port

GOVERNING LAWS (sus, kung si Manriquez pa atong professor sigurado ko mugawas jud ni!)

1. Code of Commerce and other special laws
2. Law of the country of destination applies
3. Warsaw Convention (Convention for the Unification of Certain Rules Relating to the International Carriage by Air

Summary of Rules:

1. Coastwise Shipping
• New Civil Code (Art. 1732-1766) - primary law
• Code of commerce - suppletorily
2. Carriage from Foreign Ports to Philippine Ports
• New Civil Code - primary law
• Code of Commerce - all matters not regulated bu the Civil Code
• Carriage of Goods by Sea Act (COGSA) - suppletorily to the Civil Code
3. Carriage from Philippine Ports to Foreign Ports
• The laws of the country to which the goods are to be transported
4. Overland Transport
• Civil Code - primary
• Code of Commerce - suppletorily
5. Air Transportation
• Civil Code
• Code of Commerce
• For International Carriage - COGSA, as amended

I AM SICK! DI NAKO MAG-UPDATE.. TULOG SAKO! 12/21/07

Credit Transactions Prelims

Exam Coverage

-Loans
-Deposit
-Warehouse Receipts

LOANS
Two kinds of loan:

1. Commodatum – where one person called the bailor (lender) delivers to another called the baille (borrower) a non-consumable thing so that the latter may use it for a certain time and return the identical thing.
2. Mutuum – where the lender delivers to the borrower money or other consumable thing upon the condition that the latter shall pay the same amount of the same kind and quality.

Distinctions of commodatum and mutuum:

1. Commodatum ordinarily involves something not consumable, while in mutuum, the subject matter is money or other consumable thing;
2. In commodatum, ownership of the thing loaned is retained by the lender, while in mutuum, the ownership is transferred to the borrower;
3. Commodatum is essentially gratuitous, while mutuum may be gratuitous or may be onerous, that is, with stipulation to pay interest;
4. In commodatum, the borrower must return the same thing loaned, while in mutuum, the borrower need only pay the same amount of the same kind and quality;
5. Commodatum may involve real or personal property, while mutuum refers only to personal property;
6. Commodatum is a loan for use or temporary possession, while mutuum is a loan for consumption;
7. In commodatum, the bailor may demand the return of the thing loaned before the expiration of the term in case of urgent need, while in mutuum, the lender may not demand the return of the thing before the lapse of the term agreed upon;
8. In commodatum, the loss of the thing loaned is suffered by the bailor since he is the owner, while in mutuum, the borrower suffers the loss even if it is caused by a fortuitous event and he is not therefore discharged from his duty to pay;
9. Commodatum is purely personal in character, while mutuum is not so.

Kinds of Commodatum

1. Ordinary commodatum – (as defined above)
2. Precarium – where the bailor may demand the thing loaned at will

Characteristics of commodatum:

1. Real – delivery is necessary for the perfection of the contract.
2. Unilateral – once the subject matter has already been delivered, it creates on the part of the borrower the obligation to return the identical thing

Commodatum notes-

1. Similar to donation in that in confers a benefit to the recipient
2. The borrower may not use the fruits of the thing loaned, unless there is a stipulation to the contrary.
3. The bailor need not be the owner of the thing loaned since by loan, ownership does not pass to the borrower.
4. The death of either the bailor or the bailee extinguishes the commodatum, being a contract which is purely personal in character.
5. The borrower may not lend the thing loaned to a third person. However, it may extend to the members of his household, unless there is a stipulation to the contrary or unless the nature of the thing forbids such use.

Obligations of the Bailee

1. To pay for the ordinary expenses for the use and preservation of the thing loaned.
2. To pay for the loss of the thing even if it is caused by fortuitous event in the following cases:
• If he devotes the thing to any purpose other than that intended (he acts in bad faith)
  
• If he retains the thing beyond the agreed term or after the accomplishment of its use (he incurs delay)
  
• If the thing loan was delivered with an appraisal of its value, unless there is a stipulation exempting the bailee from liability in case of fortuitous event (presumed by law)
  
• If he lends or leases the thing to third persons (commodatum is purely personal)
• If, being able to save the thing borrowed or his own thing, he chooses to save the latter (ingratitude).
  
3. To return the thing loaned. The bailee may only retain the thing IF he suffered losses or damages because of the flaws of the thing loaned.
4. To be solidarity liable in case there are two or more bailees.
   

Obligations of the Bailor

1. To respect the duration of the loan, unless he should have urgent need of the thing.
2. To refund the extraordinary expenses.
3. To pay the damages caused by known hidden flaws. Requisites:
• There is a flaw or defect in the thing loaned;
• The flaw or defect is hidden
• The bailor is aware thereof
• He does not advise th bailee of the same; and
• The bailee suffers damages by reason the the said flaw or defect
  

Mutuum, notes-

1. The borrower acquires ownership of the thing loaned.
2. The relationship of the parties is that of obligor-obligee.
3. Muttum involves money or any other fungible things.
4. It may be gratuitous.
5. No interest shall be due unless it has been expressly stipulated in writing. In case the payment of interest is agreed and in writing, but the interest rate is not indicated, the legal interest rate of 12% shall apply. Exceptions to the rule when interest may be due even in the absence of stipulation:
• Indemnity for damages due to delay
• Interest accruing from unpaid interest - when judicially demanded or stipulated (presupposes a stipulated interest, the interest contemplated in this exception is the interest of the defaulted interest payments)

DEPOSITS
A deposit is constituted from the moment a person receives a thing belonging to another with the obligation of safly keeping it and of retuning the same.

Characteristics of deposit:

1. Real - delivery is necessary for the perfection of the contract
2. Unilateral (when gratuitous) - only the depositary has the obligation of safely keeping the thing deposited
   
3. Bilateral (when onerous) - the depositary has the obligation of safely keeping the thing deposited and the depositor has the obligation therefor to pay the fees associated with the deposit.

Distinctions between deposit and mutuum

1. In deposit, the principal purpose is the safekeeping or mere custody, while in mutuum, the consumption of the subject matter;
2. In deposit, the depositor can demand the return of the subject matter at will, while in mutuum, th lender must wait until the expiration of the period granted to the debtor;
3. In deposit, both movable and immovable property may be the object, while in mutuum, only money and other fungible thing.

Disctinctions between deposit and commodatum

1. In deposit, the principal purpose is the safekeeping or mere custody, while in commodatum, the transfer of the use;
2. Deposit may be gratuitous or onerous, while commodatum is essentially and always gratuitous;
3. In extrajudicial deposit, only movable things may be the object, while in commodatum, both movable and immovable property may be the object.

Kinds of deposit

1. Judicial - one which takes place when an attachment or seizure of property in litigation is ordered; it may involve movable or immovable property
   
2. Extrajudicial - which may be further classified into:
• Voluntary - one wherein the delivery is made by the will of the depositor/s
• Necessary - one made in compliance with a legal obligation, or on th occasion of a calamity, or by travelers in hotels and inns or with common carriers.

Deposit, notes-

1. A deposit is a gratuitous contract, except
• when there is contrary stipulation
• where the depositary is engaged in the business of storing goods
• where the property is saved from the destruction without knowledge of the owner - negotiorum gestio applies
2. Deposit only contemplates corporeal things
3. Interpleader is an action to compel the depositors to settle their conflicting claims among themselves.
4. A contract of deposit may be entered into orally or in writing.
5. When the deposit is made by an incapacitated person to a depositary who is a capacitated person, the latter incurs all the obligations of a depositary and must return the property to the legal representative of the incapacitated or to the depositor himself if he should acquire capacity.
6. When the deposit is made by a capacitated person to a depositary who is incapacitated, the latter does not incur all the obligations of a depositary but he must return the thing deposited while it is still in his possession, and to pay the depositor the amount by which he may have benefited himself with the thing or its price subject to the right of any third person who acquired the thing in good faith.
7. Permission is not presumed. The burden of proof is on the depositary to prove that permission has been given.
8. Fault on the part of the depositary is presumed, unless there is proof to the contrary.
9. The depositary cannot demand that the depositor prove the ownership of the thing. But, if he discovers that the thing deposited has been stolen, the depositary has the duty to inform the true owner of such fact.
   

Obligations of the Depositary

1. To keep the thing deposited and return it.
2. Not to transfer the deposit, unless there is stipulation to the contrary.
3. Not to change the way of deposit, unless consented by the depositor.
4. To collect interest on choses in action deposited.
5. Not to co-mingle things if such is stipulated.
6. Not to make use of the things deposited unless authorized.
7. Liability for th loss of the thing through a fortuitous event if:
• it is so stipulated
• if he uses the thing without permission
• if he incurs delay in returning the thing
• if he allows other persons to use the thing deposited
8. Return the thing deposited when delivered closed and sealed, in the same condition.
9. Pay for damages should the seal or lock be broken through his fault.
10. Keep the secret of the deposit when the seal or lock is broken, with or without his fault.
11. Return the deposit with its products, accessions, and accessories.
12. Pay interest on sums converted for personal use.
    

Irregular deposit distinguished from mutuum

1. In an irregular deposit, the consumable thing deposited may be demanded at will by the irregular depositor, while in mutuum, the lender is bound to respect the time agreed upon by the parties.
2. In an irregular deposit, the only benefit is that which accrues to the depositor, while in mutuum, the essential cause for the transaction is the necessity of the borrower.
3. The depositor in an irregular deposit has preference over other creditors with respect to the thing deposited, while common creditors enjoy no preference in the distribution of the debtor's property.

i am tired of reading deposits... let's jump to....

WAREHOUSE RECEIPTS
A warehouse receipt is a written acknowledgment by a warehouseman that he has received and holds certain goods therein described in store for the person to whom it is issued. It is also the simple written contract between the owner of the goods and the warehouseman to pay the compensation for that service.

Contents of the warehouse receipt:

1. Location of the warehouse
   
2. Date of issue of receipt
3. Consecutive number of receipt
4. Person to whom goods are deliverable
5. Rate of storage charges
6. Description of goods or packages
7. Signature of warehouseman
8. Warehouseman's ownership of or interest in goods
9. Statement of advances made and liabilities incurred.

Obligations of the warehouseman:

1. to take good care of the goods entrusted to his safekeeping
2. to deliver them to the holder of the receipt or the depositor provided the following conditions are complied:
• demand was made, accompanied by:
• an offer to satisfy the warehouseman's lien
• an offer to surrender the receipt
• a readiness and willingness to sign the receipt

Person to whom goods must be delivered:

1. person lawfully entitled to possession of goods or his agent
2. person entitled to delivery under a non-negotiable receipt or with written authority
3. person in possession of a non-negotiable receipt

Acts for which warehouseman is liable:

1. Failure to stamp "duplicate" on copies of a negotiable receipt
• the warehouseman shall be liable for all damages caused to any one who purchased the subsequent receipt for value
  
2. Failure to place "non-negotiable" or "not-negotiable" on a non-negotiable receipt
• the warehouse receipt shall be considered negotiable provided the holder of such unmarked receipt purchased it for value supposing it to be negotiable
  
3. Misdelivery of the goods
• the warehouseman has a liability similar to a bank paying a forged check and also a liability as for conversion (whatever that means?)
  
4. Failure to effect cancellation of a negotiable receipt upon delivery of the goods
• the warehouseman shall be liable to anyone who purchases for value in good faith such receipt which have not been cancelled, after such purchaser acquired title to the receipt
  
5. Issuing receipt for non-existing goods or misdescribed goods
• warehouseman shall be liable for damages
  
6. Failure to take care of the goods
• the warehouseman in liable for any loss or injury to the goods caused by his failure to exercise ordinary or reasonable care in the custody of the goods
  
7. Failure to give notice in case of sale of goods to satisfy his lien or because goods are perishable or hazardous.
• the warehouseman shall be severally liable to each depositor for the care and redelivery of his share of such mass to the same extent and under the same circumstances as if the goods had been kept separate.

NO MORE UPDATES FOR TODAY... (--, ) 12/20/2007

Take a break

I found this video on youtube, you might find it interesting... Can you relate?



I know law students all over the world can relate to this

Administrative Law Prelims

ADMINISTRATIVE LAW.

As defined by Goodnow, Administrative Law is that branch of public law which deals with three things:

1. fixes the organization of the government;
2. determines the competence of administrative authorities;
3. indicates to the individuals remedies for the violation of their rights.

Administrative law covers all the portion of the public law of the land concerning executive and administrative officials. It deals with the enforcement and execution of the laws of the State, its powers and duties, the law on public officers, their election, appointment, and removal, their rights, duties, and liabilities. It also covers the law of public corporations, the laws that provide for the grant of rights, privileges, bounties of government to private individuals.

The following are the sources of administrative law:

1. Statute of legislation – these are the laws passed by congress;
2. Decisions/Interpretations made by the courts – Jurisprudence or court decisions involving administrative law and procedures
3. Rules and regulations made by the administrative agency or body charged of implementing the law – these are what we call the Implementing Rules and Regulation of laws passed by congress. Administrative bodies have this quasi-legislative power in making the rules and regulations for statutes.
4. Decisions/Interpretations made by the administrative body/agency tasked to implement the law – Aside from the quasi-legislative power, administrative agencies/bodies also have quasi-judicial power which shall be later on discussed.

What is the purpose of administrative law?

The chief concern of administrative law is the protection of private rights. Its subject matter is the nature and mode of exercise of administrative power and the system of relief against administrative action.

What is the function of administrative law?

Its function is to make the government machinery work well in an orderly manner. It is the body of rules that makes every component part of the government perform its assigned tasks.

ADMINISTRATIVE BODY

An administrative body is a body composed of one or more officials designed to carry on certain business of government, to dispense certain services or privileges accorded by government, to regulate certain public callings, to promote the general welfare through police regulations, to determine rights of individuals in certain cases where a strong social policy is involved, to use a varying degree of discretion in arriving at decision and, often to proceed without being bound by some of the so-called technical procedures of law courts.

Types of administrative bodies:

Those set-up to function when the government is ---

1. offering some gratuity grant or social privilege (such as Phil. Veterans Administration)

2. seeking to carry on certain business of the government (such as BIR, Bureau of Customs)

3. seeking to regulate business affected with public interest (such as Land Transportation Commission)

4. exercising police power to regulate private businesses and individuals (such as Securities and Exchange Commission)

5. adjusting individual controversies because of some strong social policy involved (such as National Labor Relations Commission, Court of Agrarian Relations)

6. setting up of bodies where the government becomes a private party (such as Commission on Audit and GSIS)

Powers of administrative bodies

The powers of administrative bodies may be classified into:

1. Ministerial Powers – this refers to the administrative body’s power to perform a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority without regard to the exercise of his own judgment. (Example, Register of Deeds with respect to the registration of properties)

2. Discretionary Powers – this refers to the administrative body’s authority to do any act, the doing of the same being dependent upon his sound discretion (Example, the Commission on Audit, an auditor exercises his discretion in the performance of his duties)

3. Determinative Powers – further classified into:

a. Directing power – refers to corrective powers, power of assessment, abstract determination such as definition, valuation, classification, and fact-finding (Example, power of assessment of BIR)

b. Dispensing power – consists of the granting of exemptions from or relaxing of a general prohibition (Example, authority of the zoning boards to vary the provision of zoning statute or ordinance)

c. Enabling power- the power to approve something which the law undertakes to regulate; manifested in the granting or denial of licenses to engage in a particular business or occupation (Example, LTFRB, Board of Censors, Central Bank)

d. Examining power – also called the investigatory power, which consists in requiring the production of books, papers, records for inspection, the attendance of witnesses and compelling their testimony and the filing of statements (Example, Commission on Elections)

e. Summary power – the power to apply compulsion or force against a person or property to effectuate a legal purpose without a judicial warrant to authorize such action

4. Quasi-legislative Power (rule-making power) – the power of making rules and regulations to govern a certain subject within its jurisdiction. This grant of rule-making power is a relaxation of the principle of separation of power and serves an as exception to the non-delegation of legislative power. Administrative relations adopted under legislative authority by particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions, without extending, expanding, or amending the law itself.

a. Requisites for the validity of administrative rules and regulations:

i. It must have been issued under the authority of law

ii. It must be within the scope and purview of the law

iii. It must be reasonable

iv. Must be published in the official gazette and newspaper of general circulation

v. Must be registered with the UP Law Center

b. Exceptions:

i. Those which are merely internal in nature regulating personnel of the agency and not the public

ii. Letters of instructions issued by an administrative superior to be followed by subordinates

c. Categories of rules and regulations that may be promulgated:

i. Those intended to supply the details of a legislation

ii. Those that are intended to construe or interpret the particular law or statute being enforced

iii. Those that are intended to determine some facts or state of things from which the enforcement of the law shall depend

5. Quasi-Judicial Power (power of adjudication) – the power to investigate facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature. Quasi-judicial adjudication is a determination of rights, privileges, and duties resulting in a decision or order which applies to a situation. (Example, the National Labor Relations Commission adjudicates labor cases)

a. Doctrine of Primary Jurisdiction – means that the judicial action of a case is deferred pending the determination of some issues which properly belong to an administrative body because their expertise, specialized skills, knowledge and resources as required for the resolution of the factual or non-legal matters. This requires substantial evidence, or such evidence that a reasonable mind might accept as adequate to support a conclusion, the quality of evidence necessary for a court to affirm a decision of an administrative body.

b. Trial-type hearing or a full blown hearing is needed when adjudicative fact is to be established.

c. Types of administrative investigation

i. Determinative – the purpose is to determine the facts which would qualify the positive application of the law being enforced, administered, or implemented

ii. Disciplinary administrative investigation

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Where the law provides for the remedies against the action of an administrative board, body or officer, relief to courts against such action can be sought only after exhausting all the remedies provided for. As a general rule, the doctrine of exhaustion of administrative remedies applies only when there is an express legal provision requiring such administrative step as a condition precedent to the taking of an action in court.

Exceptions to exhaustion of administrative remedies:

1. When no administrative review is provided by law
2. When the issue is purely legal
3. When the party invoking the doctrine is guilty of estoppel
4. When there is unreasonable delay of official action that will prejudice the complaint
5. When the amount involved is too small as to make the rule impractical and oppressive to the complainant
6. When there is no plain, adequate, and speedy remedy available
7. When there is “qualified political agency”
8. In land case, when the land in question is a private land
9. When it will result into the nullification of the claim or cause of action
10. When there is an official action demanded by public interest

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.)

Lacson vs Reyes GR No. 86250 February 26, 1990

Atty. Ephraim Serquina did not pay docket fees in his Motion for Attorney’s Fees, contending that such motion was only incidental to the probate of the will of Carmelita Farlin, he being the executor thereof. Thereafter, the heirs filed their answer and denied the claim for P68,000.00 attorney’s fees alleging that the sum agreed upon was only P7,000.00, a sum they had allegedly already paid.

The Supreme Court ruled that the court acquires jurisdiction over any case only upon payment of the prescribed docket fees. The payment of docket fees is required before the Motion for Attorney’s Fees could be validly tired.

Tacay vs RTC of Tagum GR Nos 88075-77 December 20, 1989

Tacay vs RTC of Tagum
GR Nos. 88075-77
December 20, 1989

Facts:
These were 2 separate cases originally filed by Godofredo Pineda at the RTC of Tagum for recovery of possession (acciones publiciana) against 3 defendants, namely: Antonia Noel, Ponciano Panes, and Maximo Tacay.

Pineda was the owner of 790 sqm land evidenced by TCT No. T-46560. The previous owner of such land has allowed the 3 defendants to use or occupy the same by mere tolerance. Pineda, having himself the need to used the property, has demanded the defendants to vacate the property and pay reasonable rentals therefore, but such were refused.

The complaint was challenged in the Motions to Dismiss filed by each defendant alleging that it did not specify the amounts of actual, nominal, and exemplary damages, nor the assessed value of the property, that being bars the determination of the RTC’s jurisdiction in deciding the case.

The Motions to Dismiss were denied but the claims for damages in the complaint were expunged for failure to specify the amounts. Thus, the defendants filed a Joint Petition for certiorari, mandamus, prohibition, and temporary restraining order against the RTC.

Issue:
Whether or not the amount of damages claimed and the assessed value of the property are relevant in the determination of the court’s jurisdiction in a case for recovery of possession of property?

Decision:
Determinative of the court’s jurisdiction in a recovery of possession of property is the nature of the action (one of accion publicaina) and not the value of the property, it may be commenced and prosecuted without an accompanying claim for actual, nominal or exemplary damages and such action would fall within the exclusive original jurisdiction of the RTC. The court acquired jurisdiction upon the filing of the complaint and payment of the prescribed docket fees.

(CLICK THE TITLE TO VIEW THE FULL TEXT OF THE CASE @ LAWPHIL.NET)
ANOTHER TACAY VS RTC OF TAGUM DIGEGST AT ARELLANOLAW.NET