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Remedial Law I Reviewer

Rem Rev 1 MT

MCQ.

1. B
2. B
3. C
4. D
5. C
6. A
7. A
8. B
9. C
10. A
11. D
12. D
13. C
14. A
15. C

ESSAY

16. The Motion of Defendant to first resolve the issue of whether the plaintiff is the proper
remedy should be granted. The defendant’s motion is not barred by the filing of an
answer. In fact, the defendant has raised it as an affirmative defense in the answer. Under
the Rules of Court, when a motion to dismiss is not availed of before the filing of the
responsive pleading, it may still be raised as an affirmative defense in the answer. (5
PTS)
17. Yes, the court is correct in ordering the dismissal of the case with prejudice because
prescription is a ground for the dismissal of the case with prejudice under the rules of
court (3 PTS)
18. With respect to C, No. C filed a responsive pleading and denied under oath the
document. Under the rules of court, in controverting an actionable document, it is the
necessary that the other party specifically deny under oath the document. Hence with
respect to C, there is a denial of the genuiness and due execution of the document.
However , with respect to B, he is deemed to have admitted the genuiness and due
execution of the document because of lack of verification (4 PTS)
19. Yes, the court is correct. Defendant’s motion to file amended answer will prejudice the
plaintiff who has already presented his evidence. Under the Rules of Court, Amendment
which is substantial shall be within the discretion of the court taking into consideration
the prejudicial effect of such document. (No points)
20. The judgement shall remain valid but it shall not bind C and D. Under the rules of court,
when there has been an improper service of summons, the court shall be deemed to have
not acquired jurisdiction over the person of the defendant and any judgement rendered
against those who were improperly served shall not bind them (No Points)
21. There are two cases which A may file against B. First, is the first and the second claim
and second, the return of the condo unit which B refused to vacate.

In the first case, the aggregate amount of such claims shall be the test of jurisdiction. The
total amount of P540,000 is within the jurisdiction of the RTC. Hence it shall file the
first case in the RTC where A or B resides at the option of A.

In the second case, a summary proceeding may be instituted by B on the ground of


unlawful detainer. It shall be filed in the MTC where the condo unit is situated (4 Points)
22. If A were to proceed against B, the action is an action in personam because an action for
the collection of sum of money is enforced against the personal liability of A.

The appropriate mode of service of summons is through publication because B is a


resident temporarily outside the Philippines (5 Points)

23. If A were to proceed against C, the action is Quasi in Rem because the respondent will
be named as a defendant for the purpose of subjecting his interest in a lien burdening the
property. A real estate mortgage is a Quasi in Rem Action.

There must be an extraterritorial service of summons upon C because C is a non-resident


and not found in the Philippines; He may be served with summons through personal
service of summons or through publication in a newspaper of general circulation. The
extra territorial service must be with leave of court (5 Points)

24. Yes, I can proceed against both B and C at the same time in the same case.

The contract of loan entered into between A and B is the principal contract to which a
real estate mortgage is attached. The two different contracts are intertwined with each
other and the accessory contract (Real Estate Mortgage) cannot be adjudicated fully in a
separate case. Being an accessory contract, the determination is dependent upon the
existence of the other, which is the principal contract (No Points)
25. No, he cannot join an action to recover the amount from B in the same case before the
MTC because such joinder of causes of actions are not allowed under the Rules of Court

Under the rules of court, if an action is governed by the special rules or by Special Civil
Actions, such joinder shall not be allowed.

The Joinder of an unlawful detainer case which is governed by the rules of summary
procedure may not be joined in an action for sum of money. (4 Points)

26. I will institute one case for the collection of the 10 PNs. The rule on the joinder of cause
of action is applicable in this case. Under the rules of court, the plaintiff may assert in one
pleading as many cause of action as he may have against the other party provided that the
rules of joinder of parties have been complied with. In this case, there may be a series of
transactions but it involves the same parties. (No Points)
27. Yes, B is correct. The court cannot motu propio dismiss the case on the ground of Litis
Pendentia because it is apparent that the court trying the first case does not have
jurisdiction over the person of the defendant. B was not aware of a pending case against
him. It can be presumed that B was not served with summons. Hence, there is prior case
pending to speak of which may warrant the motu priopio dismissal of the case. (No
Points)
28. Yes, Jack may interpose the PN as a counterclaim against Joe even if it is in excess of the
jurisdiction of the MTC.
Under the Rules of Compulsory counterclaims, when the compulsory counterclaim
exceeds the amount of jurisdiction of the main case (MTC), the compulsory counterclaim
shall be converted as a permissive counterclaim and the excess of the amount of
jurisdiction in the MTC shall be deemed waived (5 Points)
29. The court should have dropped one of the two causes of action because the two are
improperly joined

In this case, there are two cause of action, namely partition and annulment of donation
inter vivos. The two cause of action cannot be joined because an action for partition
cannot be joined because an action for partition is governed by the Special Civil Actions.
Under the rules of court, the joinder of cause of action shall not apply when involves
cases under Special Civil Actions or governed by special rules (No Points)

Rem Rev 1 FE

MCQ
1. B
2. B
3. C
4. B
5. E
6. E
7. A
8. A
9. C
10. B

ESSAY

N/A

Ate Joy’s Reviewer

25. Yes, the court is correct, res judicata by conclusiveness of judgement will apply in this case.
The requisites of such are (1) The judgement on the first case is final (2) It was adjudicated upon
its merits (3) The judgement was rendered by a court with jurisdiction and (4) There is identity
of parties and facts and issues.. The difference of res judicata by prior judgement is that in the
prior judgement there must be identity of cause of action, in conclusiveness it is not necessary.

What conclusiveness contemplates is that issues, matters and things already adjudged in a prior
action will constitute a bar to an institution of an action that will raise that same issue that was
already decided upon

In this case, although the first and second case are not the same, in order to dispose of the first
case, the court had to decide on the ownership of the property which is the same or what the
second case wants to prove or what the second case is questioning or submitting to the court for
resolution. Since the court already decided on such matter, although it is not in the judgement, it
still constitutes a bar by conclusiveness of judgement on the second action (No Points)

26. (A) The nature of the action will be an action in personam, as such the appropriate mode of
service to be resorted to are as follows:

First, personal service should be made. However, since B is a resident temporarily outside the
country , he may be served by substituted service by leave of court or through publication, also
by leave of court. (5 Points)
(B) The nature of the action will be quasi in rem and the proper service of summons for a non-
resident not found in the Philippines are as follows:

Personal service but since he cannot be found in the Philippines, extraterritorial service may be
resorted to by leave of court which includes personal service outside the country where he could
be found, substituted service, publication in the general area where he may be found or other
manner deemed by the court as appropriate(5 Points)

(C) Yes, A can go against B and C at the same time in the same case. This will constitute a
joinder of parties which has the following requisites. (No Points)

1. Identity of Causes of Action arising from the same or series of transactions.

2. Identity of question of fact or law

3. Identity of Parties either jointly , severally or in the alternative.

27. No, A cannot Join the cases of unlawful detainer and collection for a sum of money against
B because unlawful detainer is a special civil action and collection for a sum of money is an
ordinary civil action. Joinder of causes of action is restricted by the rules of court on special civil
actions and ordinary civil actions

Even if the amount is different or higher the rule will still apply, they cannot be joined virtue of
the same prohibition. (5 Points)

28. If I were the lawyer of A, I will file 2 cases, one against B for collection of sum of money
with amounts of P 375,000 from the 5 PNs that B and C executed plus P300,000 from the PN’s
that B executed with the aggregate amount of P675,000 and I will file it at the RTC.

The second case against C will be P375,000 from the 5 PN’s B and C executed plus P450,000
from the 3 PN’s executed, total of P825,000 also in the RTC.

The reason of which is embodied in the joinder of causes of action which has the following
requisites.

1. Compliance with the requisites of Joinder of Parties.


2. Identity of Cause of Action arising from the same or series of transactions
3. Identity of question of fact and law.

In this case, the promissory notes that B and C contracted came from series of transactions
which_ same nature but different occasions. I was able to separate the amount of the 5 PN’s of B
and C because absent stipulation they are presumed to be jointly liable and as such share the
obligation equally. As joint debtors, in order to collect I must proceed against each one of them.
The promissory notes they acquired in their personal capacity can then just be added to the
amount from the joint liability and the aggregate amount of which will determine the jurisdiction
, which is the RTC. (5 Points).

10 . In this case, Ray and Ram can ask the court for a preliminary injunction to stop Yap from
demolishing their ancestral home. Here the permit applied by Yap should be issued will clearly
cause grave and irreparable damage to Ray and Ram. Although their entitlement to the property
is still the subject of the controversy of the pending action against Gop, the act sought to be
stopped if found that such property is part of their inheritance as a rule will outweigh the
prejudice on the other party. Hence there is an imminent need for injuction. (No Points)

11. Assuming in this case that the MTD failed and the case proceeded to pre-trial, the
service of written interrogatories directly on Gop as a mode of discovery is procedurally proper.
Discovery is a compulsory procedure that the parties must take, otherwise they face sanctions
which varies from striking of allegations to dismissal of the case.

12. (A) Since it was a solidary obligation, it was not necessary for A to proceed against
B, C and D since a judgement to one is a judgement to all by virtue of their solidary obligation.
Here only one judgement will be rendered for all of them. If C has filed a motion for new trial
provided that all procedural requirements are met and he as a valid ground, the court should act
on this first because if granted the case will be opened and the judgement will not be ripe for
appeal and therefore notice of appeal is improper (3 Points)

(B) Since this is only one judgement and binding to them all, the execution against
D would be improper, especially if the motion for new trial of C was granted. Even
though D did not take action, execution against him is not possible because the
judgement to be executed is still not ripe for execution. However, should the court act on
B’s appeal, A may move for execution pending appeal if A can show good reason for
such motion, this is discretionary upon the court and is not a matter of right until final and
executory. (5 Points)

(C) Yes, D can file for annulment of judgement on the ground of lack of
jurisdiction. In this situation, the case was filed in the MTC for a P500,000 obligation
which is in excess of the MTC”s jurisdiction and should have been filed at the RTC.
Since the court who rendered the judgement has not acquired jurisdiction over the subject
matter, the judgement is void. Jurisdiction on Subject matter cannot be waived.

Here, ray wanted to acquire information regarding the financial capability of Gop at the time the
properties were purchased, this is information which Gop would only know and serving him with
written interrogatories, his answer to it, will help him as it is a judicial power and can be used as
evidence. Therefore, if Ray is able to establish from Gop’s answer that it did not have the
financial capability to purchase the said properties at the time then he could have proven that
such properties were purchased by their parents and form part of their inheritance as heirs. (No
Points)

17. If execution is denied, the remedy of is to move for preliminary attachment with the ground
that B has intended to defraud or run from his obligations by disposing of the properties that may
be subjected of the judgement on the litigation, If granted the court will issue a writ attachment
which will put a lien on properties of B. Although B retains possession of the property and may
even dispose of them, the lien by virtue of the attachment will be proof of A’s priority claim on
the properties should judgement return favorable to him. (3 Points).

16. Execution pending appeal is proper when the losing party within the period of appeal has
instituted an appeal on the final judgement. Although with good reason as long as it is still in the
time to institute an appeal even when the losing party did not take it, execution can still be proper

Except, when the said party, instead of appealing filed a motion for reconsideration or new trial.
In this case, execution pending appeal even with good reason should not be granted because the
judgement from which the execution should be based from now becomes open and loses its
finality. When a motion for new trial is granted, the case is opened to receive new evidence and
the original judgement is vulnerable to changes as if there is no judgement to execute to begin
with. (5 Points)