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UNIVERSITY OF THE CORDILLERAS

COLLEGE OF LAW
CIVIL PROCEDURE SY 2005-2006
PRELIMINARY EXAMINATION
PART I -

IDENTIFY THE FOLLOWING: (3 pts each)

1.
Is an allegation of new matter, which although hypothetically admitting the
material allegations in the pleading would nevertheless bar or prevent recovery.
2.
Is a claim by one party against a co-party arising out of a
transaction/occurrence that is the subject matter either of the original action or
the counter-claim.
3.
Is an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge and/or is
based on authentic records.
4.
Occurs when a party attempts to have his action tried in a particular court
or jurisdiction where he feels he will receive the most favorable judgment.
5.
The institution by a party of more than one suit where the filing of one or a
judgment upon the merits in anyone is available as a ground for the dismissal of
the others.
6.
An action brought against a person based on personal liability to the
person bringing it.
7.
The right to commence and maintain an action, it is a remedial right that
depends on substantive law.
8.
Is one who has a correlative obligation, whose act or omission violates the
legal rights of another.
9.

Exists when the plaintiff is not the real party in interest.

10.
An action that affects title to or possession of real property, or interest
therein,
PART II -

TRUE OR FALSE- RIGHT MINUS WRONG (2 pts each)

1.
A necessary party is to be impleaded as a party for complete
determination of an action, while an indispensable party is impleaded for a final
determination of an action.
2.
A dismissal on the ground of improper venue may require the
filing of motion to dismiss.
3.
A counterclaim existing at the time of the filing of an answer may
be set up by way of a supplemental pleading with the permission of the
court, before judgment.
4.

A specific denial must always be made under oath

5.
An answering defendant cannot be allowed to litigate as an
indigent party.
PART III 1.
pts)

DEFINE OR ENUMERATE

What are the requisites for the valid exercise of jurisdiction? (5

2.
What are the effects of the death of a defendant during the
pendency of an action? (5 pts.)
3.

What are the effects of a transfer pendente lite? (5 pts.)

4.

Define a cause of action. (5 pts)

PART IV -

PROBLEMS

1.
A is indebted to B. The indebtedness is evidenced by a loan
agreement, where C has affixed his signature as a solidary debtor. A
does not pay on the due date. Against whom should B bring an action?
Why? (5 pts)
2.
X sued Y for the delivery of computers and accessories valued at
PHP 500,000.00. The action is filed in the RTC of Baguio City. X is a
resident of Manila, while Y is a resident of Baguio City. Is venue
properly laid in Baguio City? (5pts) Will your answer be the same
notwithstanding a written stipulation between the parties providing
that venue should be in Manila? (5pts)
3.
May a party bring suit against multiple parties when he can only
recover against one? (5 pts)
4.
A sued B to compel delivery of a motor vehicle. In his suit, A
based his claim on a deed of absolute sale executed by B in his favor.
In his unverified answer, B maintains that he has no such obligation to
deliver a motor vehicle to A. During the trial, is B allowed to prove that
he had returned the amount paid by A? Explain. (5 pts)
5.
Jose is the owner of a parcel of land with an area of 1 hectare.
Said parcel of land is occupied by 100 people, each occupying a
distinct portion of the property. Jose subsequently filed 1 suit against
all 100 occupants. Can the joinder of the 100 defendants be deemed
proper? (5 pts)
PART V.

10 BONUS POINTS

1.
Yes, the action arises out of the same transaction or series of
transactions and there is a question of law or fact which may arise
common to all the defendants. (Section 6, Rule 3)
2.
Both motions will prosper. Jurisdiction is vested in the Municipal
Trial Court. Each cause of action is below the jurisdictional amount
UNIVERSITY OF THE CORDILLERAS

COLLEGE OF LAW

Civil Procedure - Preliminary Examination


December 14, 2006
PART I: True or False (20 pts)
1.
The defendants recourse against a complaint which fails to include an
indispensable party is to move for the dismissal of the complaint.
2.
A counterclaim existing at the time of the filing of an answer may be
set up by way of a supplemental pleading with the permission of the court,
before judgment.
3.
Jane has to separate credits against John, one for PHP 20,000.00 and
another for PHP 15,000.00. Since both credits are due and demandable, Jane
must file only one complaint against John.
4.
A dismissal on the ground of improper venue may require the filing of
motion to dismiss.
5.

A specific denial must always be made under oath.

6.
Juan, claiming to be the owner of a parcel of land, may file a single
complaint for its recovery against 50 persons who each occupied a distinct
portion of the land.
7.
Plaintiff may file an action for rescission of a contract in the RTC sitting
in the place where he resides, even if the contract provides that an action
thereon may be brought by the parties at the exclusive option of the plaintiff
in the RTC of Manila.
8.
A necessary party is to be impleaded as a party for complete determination of an
action, while an indispensable party is impleaded for a final determination of an action.
9.
An ultimate fact is an essential fact constituting the plaintiffs cause of
action.
10.
A third party claim is any claim by one party against another person
not yet a party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counter-claim therein
PART II: Fill in the blanks (20 pts)
Sec. 2 Parties in interest A real party in interest is the party who (1) _____ to
be benefited or injured by the judgment in the suit, or the party (2) _____ to
the (3) _____ of the suit. Unless otherwise authorized by law or these Rules,

every action must be prosecuted or defended in the name of the real party in
interest.
Sec. 8 Necessary party A necessary party is one who is not (4) ______ but
who ought to be joined as a party if (5) _____ relief is to be accorded as to
those already parties, or for a complete determination or (6) _____ of the
claim subject of the action.
Sec. 12 Class suit When the subject matter of the (7) _____ is one of
common or general interest to many persons so numerous that it is (8) _____
to join all as parties, a (9) _____ of them which the court finds to be
sufficiently numerous and representative as to fully protect the interest of all
(10) _____ may sue or defend for the benefit of all. Any part in interest shall
have the right to (11 _____ to protect his (12) _____ interest.
Sec. 18 Incompetency or incapacity If a party becomes incompetent or
incapacitated, he court, upon (13) _____ with notice, may allow the action to
be continued by or (14) ____ against the incompetent or incapacitated person
assisted by his legal guardian or guardian ad litem.
Sec. 20 Action on contractual money claims When the action is for recovery
of money arising from (15) _____, express or implied, and the defendant dies
before (16) _____ of final judgment in the court in which the action was (17)
_____ at the time of such death, it shall not be dismissed but shall (18) _____
be (19) _____ to continue until entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be (20) _____ in the manner especially
provided in these Rules for prosecuting claims against the estate of a
deceased person.
PART III: Identify the following (20 pts)
1.
Is an allegation of new matter, which although hypothetically admitting
the material allegations in the pleading would nevertheless bar or prevent
recovery.
2.
Is a claim by one party against a co-party arising out of a
transaction/occurrence that is the subject matter either of the original action
or the counter-claim.
3.
Is an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge and/or is
based on authentic records.
4.
Occurs when a party attempts to have his action tried in a particular
court or jurisdiction where he feels he will receive the most favorable
judgment.
5.
The institution by a party of more than one suit where the filing of one
or a judgment upon the merits in anyone is available as a ground for the
dismissal of the others.
6.
An action brought against a person based on personal liability to the
person bringing it.
7.
The right to commence and maintain an action, it is a remedial right
that depends on substantive law.
8.
Is one who has a correlative obligation, whose act or omission violates
the legal rights of another.

9.

Exists when the plaintiff is not the real party in interest.

10.
An action that affects title to or possession of real property, or interest
therein.
PART IV: Choose the best answer. (15 pts)
1.
May a court adjudge a defendant liable to a plaintiff for more than
what is specifically prayed for in the complaint?
a.
b.
c.
d.

Yes, if the facts warrant and there is a general prayer for relief
Yes, as the complaint can be amended to conform to the evidence
Yes, if presentation of evidence on the matter is allowed
All of the above

2.
Johnnie files a case against Brian to enforce the terms of a contract
that requires the latter to complete construction of a house for the former. In
his answer, Brian pleads incomplete payment and demands payment of an
alleged balance of PHP 1,000,000.00. Brian is interposing:
a.
b.
c.
d.

a compulsory counterclaim
a permissive counterclaim
a negative defense
an affirmative defense

3.
P files an action against D for recovery of possession of real property. In
his answer, D states that he was occupying the property as the tenant of A. A
is:
a.
b.
c.
d.

a party in interest
a third party defendant
an indispensable party
a necessary party

4.
During a meeting, A and B notifies E of their intent to file an action for
breach of contract against him. They all agree that the suit can only be filed
in the RTC of Baguio City. A is a resident of Burgos, La Union, B is a resident of
Sison, Pangasinan, and E is a resident of Tarlac City. The proper venue for the
suit is?
a.
b.
c.
d.

Baguio City
Burgos, La Union or Sison, Pangasinan
Burgos, La Union or Tarlac City only
Baguio City or Tarlac City

5.
A files an action against B. B fails to file an answer within the
reglamentary period. Subsequently, the court issues an order directing A to
present his evidence before the clerk of court in support of his allegations.
The action of the court is:
a.
Proper, as B is now in default
b.
Proper, as the court is allowed to require presentation of evidence in
lieu of rendering judgment
c.
a and b
d.
Neither a,b, or c
PART V

1.

Distinguish between jurisdiction and venue. (10 pts)

2.

What are the effects of a transfer pendente lite? (5 pts)

3.

What are the parts of a pleading? (5 pts)

4.

Bonus. (5 pts)

F- he should to have the plaintiff ordered to amend. It is only when


there is failure to do so can he move to dismiss.
F- if amended after an answer is filed, the period is 10 days
F- joinder of causes of action is permissive, not mandatory.
F- a motion to dismiss on improper venue always requires a motion

T- the action arises out of the same transaction or series of


transactions and there is a question of law or fact which may arise that
is common to all the defendants.
T- the provision does not provide for exclusive venue.
T- a necessary party.

UNIVERSITY OF THE CORDILLERAS

COLLEGE OF LAW

CIVIL PROCEDURE- FINAL EXAMINATIONS


MARCH 20, 2006
INSTRUCTIONS: This examination consists of TWELVE (12) questions
written on two (2) pages. Read each question carefully before
answering. A mere yes or no without any discussion will not be given
credit. Be concise. Begin every answer on a separate page. Answers to
sub-questions may be continued on the same page. Should you
commit a mistake, simply draw a line across the mistake. Do not make
any other marks on your booklet. Do not fold or tear out any page. A
deduction of five points will be indicated if these instructions are not
followed. GOOD LUCK!
1.
Plaintiff has sought the taking of the deposition of the defendant.
The deposition of the defendant is taken by written interrogatories.
Can the plaintiff still serve written interrogatories under Rule 25 upon
the defendant? (5 pts)
2.
Plaintiff obtained a judgment against the defendant for a sum of
money. For failure to take an appeal, the judgment became final on
July 5, 1995. Writs of execution subsequently obtained by the plaintiff
were all returned unsatisfied as the sheriff could not locate any
property of the defendant. On June 30, 2005, plaintiff was able to
locate properties of the defendant. Plaintiff immediately filed a motion
for the issuance of an alias writ of execution. Assuming you are the
judge, what will your ruling be? (5 pts)
3.
How and when can an MTC dismiss a case covered by the Rules
on Summary Procedure on the ground of improper venue? (5 pts)
4.
What is meant by the Prior or Contemporaneous Rule? (3 pts)
What are the effects of a transfer pendente lite? (3 pts) When is a
court allowed to award more than what is prayed for in the original
complaint? (4 pts)
5.
Due to a vehicular accident, Pepe sued Pilar for PHP 350,000.00
for actual damages, PHP 1,000,000.00 for moral damages, and PHP
1,000,000.00 for exemplary damages. If Pilar does not file an answer

and is subsequently declared in default, what can the court award to


Pepe? (5 pts)
6.
Mike extended a loan of PHP 300,000.00 to Lito that was secured
by a real estate mortgage. Subsequently, Mike extended another loan
for PHP 250,000.00. When both loans fell due, Lito was unable to pay.
Can Mike join his action to foreclose on the mortgage and the action to
collect on the subsequent unsecured loan? (5 pts)
7.
Enumerate: (a) 3 grounds for a motion to dismiss (6 pts) (b) 2
grounds for the issuance of a writ of preliminary attachment (4 pts) (c)
grounds for a petition to annul judgment (4 pts) (d) requisites for the
issuance of a writ of preliminary injunction (4 pts)
8.
In an action by Butch against James, the RTC judgment in favor
of Butch was served on James on May 3, 2005, and on May 18 2005,
James filed a motion for new trial on the ground of newly discovered
evidence. The RTC denied the motion for new trial in an order which
was served on James on July 1, 2005. On July 16, 2005, James filed
his notice of appeal. The RTC subsequently denied the appeal for being
filed out of time. On July 25, 2005, James filed a petition for relief
from judgment on the ground of accident and excusable neglect? Has
the right to appeal been lost? (5 pts) Assuming that the right to appeal
has been lost, is a petition for relief an appropriate remedy? (5 pts)
Assuming that the RTC denies the petition for relief, what remedy is
available to James to challenge the denial of the petition? (5 pts)
9.
Distinguish between: (a) jurisdiction and venue? (5 pts) (b)
order of partition and judgment of partition (5 pts) (c) Bonus (5 pts)
10. How may a party have a judgment by compromise set aside?
Discuss fully. (5 pts)
11. When does a court lose its jurisdiction upon an appeal? (4 pts)
When is it allowed to exercise residual jurisdiction? (3 pts)
12. In an action by Gloria against Dinky, the RTC affirmed the
judgment of the MTC ordering Dinky to pay Gloria PHP 50,000.00.
Dinky was served a copy of the RTC judgment on January 15, 2006.
On January 25, Dinky filed a notice of appeal with the RTC. Was
Dinkys appeal timely and perfected? (5 pts)