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Remedial Law Review 1 QUIZ September 14, 2019

TO BE SUBMITTED on September 21, 2019

I
(A) What are the manners of dismissal of the action upon the instance of the plaintiff?

Answer: DISMISSAL OF ACTIONS


Section 1. Dismissal upon notice by plaintiff.
Sec. 2. Dismissal upon motion of plaintiff.
Sec. 3. Dismissal due to fault of plaintiff.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.

(B) Distinguish dismissal upon notice by plaintiff and dismissal upon motion by plaintiff.

Answer: Dismissal upon notice by plaintiff


(1) Before the service of an answer or the service of a motion for summary
judgment, a complaint may be dismissed by the plaintiff by filing a notice of dismissal.
Upon the filing of the notice of dismissal, the court shall issue an order confirming the
dismissal. (Sec. 1, Rule 17).
(2) it is not the order confirming the dismissal which operates to dismiss the complaint. As
the name of the order implies, said order merely confirms a dismissal already effected
by the filing of the notice of dismissal. The court does not have to approve the dismissal
because it has no discretion on the matter. Before an answer or a motion for summary
judgment has been served upon the plaintiff, the dismissal by the plaintiff by the filing of
the notice is a matter of right. The dismissal occurs as of the date of the notice is filed by
the plaintiff and not the date the court issues the order confirming the dismissal.
(3) Under the clear terms of Sec. 1, Rule 17, the dismissal as a matter of right ceases when
an answer or a motion for summary judgment is served on the plaintiff and not when the
answer or the motion is filed with the court. Thus, if a notice of dismissal is filed by the
plaintiff even after an answer has been filed in court but before the responsive pleading
has been served on the plaintiff, the notice of dismissal is still a matter of right.

Dismissal upon motion by plaintiff


(1) Once either an answer or motion for summary judgment has been served on the
plaintiff, the dismissal is no longer a matter of right and will require the filing of a motion
to dismiss, not a mere notice of dismissal. The motion to dismiss will now be subject to
the approval of the court which will decide on the motion upon such terms and
conditions as are just (Sec. 2, Rule 17). The dismissal under Sec. 2 is no longer a
matter of right on the part of the plaintiff but a matter of discretion upon the court.

II
(A) What is the doctrine of “Non-Prosequitur” as a ground for dismissal of an action?

Answer: Non Prosequitur


[Latin, He does not pursue, or follow up.] The name of a judgment rendered by a court against a plaintiff
because he or she fails to take any necessary steps, in legal proceedings, within the period prescribed for such
proceedings by the practice of court.

When a judgment of non prosequitur is entered against the plaintiff, he or she has failed to properly pursue the
lawsuit and cannot subsequently obtain a judgment against the defendant. A failure of such nature would result
in a dismissal of the action or in a default judgment in favor of the defendant.

(B) What are the instances of dismissal due to the fault of the plaintiff?

Answer: The dismissal due to the fault of the plaintiff may be done by the court motu propio or
upon a motion filed by the defendant (Sec. 3, Rule 17). The court may dismiss an action
motu propio, for:
(a) Failure to prosecute for unreasonable length of time;
(b) Failure to appear at the trial;
(c) Failure to comply with the rules;
(d) Failure to comply with the order of the court; and
(e) Lack of jurisdiction.

(C) What is the nature of the dismissal of an action dismissed due to the fault of the plaintiff?

Answer: A complaint may be dismissed even if the plaintiff has no desire to have the same
dismissed. The dismissal in this case will be through reasons attributed to his fault.
Section 3 of Rule 17 provides the following grounds for dismissal:
(a) Failure of the plaintiff, without justifiable reasons, to appear on the date on the date of the presentation of
his evidence in chief;
(b) Failure of the plaintiff to prosecute his action for an unreasonable length of time;
(c) Failure of the plaintiff to comply with the Rules of Court; or
(d) Failure of the plaintiff to obey any order of the court.

III On March 4, 2007, Liza filed a complaint against Nyoy in the RTC of Quezon City. Nyoy received
the summons on March 10, 2007. For some reason, Liza had a change of heart and filed a motion to dismiss
the action on March 14, 2007. On the same day, and without being served with a copy of Liza’s motion to
dismiss, Nyoy filed and served to Liza his verified answer to the complaint with counterclaim. The Court
granted Liza’s motion. On April 3, 2007, Nyoy filed a motion to declare Liza in default for her failure to file
an answer on his counterclaim. Liza argued that she was justified in not filing an answer because the case
was already dismissed by the court, including the counterclaim. Is Liza’s argument tenable?

IV
(A) Explain briefly the Two-dismissal Rule.

Answer: The two-dismissal rule applies when the plaintiff has (a) twice dismissed actions, (b)
based on or including the same claim, (c) in a court of competent jurisdiction. The
second notice of dismissal will bar the refiling of the action because it will operate as an
adjudication of the claim upon the merits. In other words, the claim may only be filed
twice, the first being the claim embodied in the original complaint. Since as a rule, the
dismissal is without prejudice, the same claim may be filed. If the refiled claim or
complaint is dismissed again through a second notice of dismissal, that second notice
triggers the application of the two-dismissal rule and the dismissal is to be deemed one
with prejudice because it is considered as an adjudication upon the merits.

(B) When may the court dismiss an action motu propio?

Answer: The court may dismiss an action motu propio, for:


(a) Failure to prosecute for unreasonable length of time;
(b) Failure to appear at the trial;
(c) Failure to comply with the rules;
(d) Failure to comply with the order of the court; and
(e) Lack of jurisdiction.

V
(A) What is pre-trial?

Answer: Pre-trial is a procedural device intended to clarify and limit the basic issues between the
parties. It thus paves the way for a less cluttered trial and resolution of the case. Its main objective is to simplify,
abbreviate and expedite trial, or totally dispense with it (Abubakar vs. Abubakar, 317 SCRA 264). It is a basic
precept that the parties are bound to honor the stipulations made during the pre-trial

(B) What is the nature and purpose of pre-trial?


Answer:
(1) After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex
parte that the case be set for pre-trial.
(2) The conduct of a pre-trial is mandatory.
(3) Pre-trial is a procedural device held prior to the trial for the court to consider the
following purposes:
(a) The possibility of an amicable settlement or a submission to alternative modes of
dispute resolution;
(b) Simplification of issues;
(c) Necessity or desirability of amendments to the pleadings;
(d) Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;
(e) Limitation of the number of witnesses;
(f) Advisability of a preliminary reference of issues to a commissioner;
(g) Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should
a valid ground therefor be found to exist;
(h) Advisability or necessity of suspending the proceedings; and
(i) Other matters as may aid in the prompt disposition of the action (Sec. 2, Rule 18).

VI 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 to have the case set for pre-trial? Why?
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. 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 (Rule 18, Section 1).

VII Warren, the defendant in a case, failed to attend the pre-trial conference despite proper notice. The
plaintiff’s counsel moved in open court that Warren be declared in default due to his failure to attend the pre-
trial, which the court granted.

(A) Was the Court correct is declaring Warren in default?


(B) Upon receipt of the Order of the order of the Court declaring him in default, Warren filed a motion
for reconsideration arguing, among others, that his non-attendance was due to the fault of his lawyer
who forgot to update his calendar. Is Warren’s excuse justifiable? What is the consequence of
Warren’s failure to attend the pre-trial conference?

VIII Distinguish between pre-trial in civil case and pre-trial in criminal case.

Answer:
(1) The pre-trial in a civil case is set when the plaintiff moves ex parte to set the case for
pre-trial (Sec.1, Rule 18). The pre-trial in criminal case is ordered by the court and no motion to set
the case for pre-trial is required from either the prosecution or the defense (Sec. 1, Rule 118).
(2) The motion to set the case for pre-trial in a civil case is made after the last pleading has been served
and filed (Sec. 1, Rule 18). In a criminal case, the pre-trial is ordered by the court after arraignment
and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused
(Sec. 1, Rule 118).
(3) The pre-trial in a civil case considers the possibility of an amicable settlement as an
important objective (Sec. 2[a], Rule 18). The pre-trial in a criminal case does not include the
considering of the possibility of amicable settlement of criminal liability as one of its purposes (Sec.1,
Rule 118).
(4) In a civil case, the agreements and admissions made in the pre-trial are not required to be signed
by the parties and their counsels. They are to be contained in the record of pre-trial and the pre-trial
order (Sec. 7, Rule 18). In a criminal case, all agreements or admissions made or entered during the
pre-trial conference shall be reduced in writing and signed by the accused and counsel; otherwise, they
cannot be used against the accused (Sec. 2, Rule 118).
(5) The sanctions for non-appearance in a pre-trial are imposed upon the plaintiff or the defendant in
a civil case (Sec. 4, Rule 18). The sanctions in a criminal case are imposed upon the counsel for the
accused or the prosecutor (Sec. 3, Rule 118)

IX
(A) What is a pre-trial brief? What matters should it contain?

Answer: The parties shall file with the court their respective pre-trial briefs which shall be received at least
three (3) days before the date of the pre-trial. This pre-trial brief shall be served on the adverse party (Sec. 6,
Rule 18).

The pre-trial brief shall contain the following matters:


(a) A statement of their willingness to enter into an amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purposes thereof;
(e) A manifestation of their having availed of or their intention to avail of discovery procedures or referral to
commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies (Sec.6, Rule 18).

(B) What is the effect of failure to file a pre-trial brief?

Answer: Failure to file the pre-trial brief shall have the same effect as failure to appear at the pretrial (Sec. 6,
Rule 18). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall be cause for dismissal
of the action. If it is the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present
his evidence ex parte. A pretrial brief is not required in a criminal case.

X
(A) How are cases assigned to the different branches of a court?

Answer: All cases filed with the Court in stations or groupings where there are two or more branches shall be
assigned or distributed to the different branches by raffle. ... In stations where there are only two salas the
Judges of both and either the Clerk of Court or the Branch Clerk of Court should be present.

(B) What is the rule in computing any period of time prescribed by the Rules of Court, or by order of
the court, or by any applicable statute?

Answer: In computing any period of time prescribed or allowed bythese rules, by order of court, or by any
applicable statute, the day of the act, event,or default after which the designated period of time begins to run
is not to beincluded. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday,
or a legal holiday, in which event the period runs until the endof the next day which is not a Saturday, a Sunday,
or a holiday. When the periodof time prescribed or allowed is less than 7 days, intermediate Saturdays,
Sundaysand legal holidays shall be excluded in the computation.
For the purpose of this subdivision legal holidays shall include days on which the Chief Justice of the Superior
Court or Chief Judge of the District Court pursuant to Rule 77(c) specifically orders the clerk’s office closed.

-PART II-

I
(A) What is the "most important witness" rule pursuant to the 2004 Guidelines of Pretrial and Use of
Deposition-Discovery Measures?

Answer: The “most important witness” rule pursuant to the 2004 Guidelines of Pretrial and Use of
Deposition-Discovery Measures provides that the judge shall, during the pretrial conference, determine the
most important witnesses to be heard and limit the number of witnesses.

(B) What is the "one-day examination of witness" rule pursuant to the said 2004 Guidelines?

Answer: The “one-day examination of a witness” rule pursuant to the 2004 Guidelines of Pretrial and Use of
Deposition-Discovery Measures provides that a witness has to be fully examined in one day only, subject to
the court’s discretion to extend the direct and/or cross-examination for justifiable reasons.

II

Charisse, alleging that she was a resident of Cebu City, filed a complaint for damages against AB Bank
before the RTC of Cebu 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. 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 Preston Hotel in Cebu 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 Cebu
City. Charisse opposed the motion citing the “omnibus motion rule.” Rule on the motion.

Answer: A: 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 an earlier motion to dismiss without raising
improper venue as an issue, and more so when the bank filed an Answer without raising improper venue as an
issue after its first motion to dismiss was denied. Under the “omnibus motion rule” (Rule 15, Sec. 8) which
governs the bank’s motion to dismiss, such motion should include all objections then available; otherwise, all
objections not so included shall be deemed waived.

(B) Suppose Charisse did not raise the “omnibus motion rule,” can the judge proceed to resolve the
motion to dismiss? Explain.

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

III

Bong filed a complaint in the RTC of Quezon City for the collection of P300,000.00. The defendant,
Jim, filed a motion to dismiss the complaint on the ground that the court had no jurisdiction over the action
since the claimed amount of P300,000.00 is within the exclusive jurisdiction of the Metropolitan Trial Court
of Quezon City. Before the court could resolve the motion, Bong, without leave of court, amended his
complaint to allege a new cause of action consisting in the inclusion of an additional amount of P300,000.00,
thereby increasing his total claim to P600,000.000. Bong thereafter filed his opposition to the motion to dismiss
claiming that the RTC had jurisdiction over his action. Resolve the motion.

IV

Describe briefly at least five (5) modes of discovery under the Rules of Court.

Answer: Modes of discovery:

(a) Depositions pending action (Rule 23);


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.

(b) Depositions before action or pending appeal (Rule 24);

A person who desires to perpetuate his own testimony or that of another person regarding any matter
that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of
the residence of any expected adverse party.

(c) Interrogatories to parties (Rule 25)

Under the same conditions specified in Sec. 1, Rule 23, any party desiring to elicit material and relevant
facts from any adverse party 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.

(d) Admission by adverse party (Rule 26);

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.

(e) Production or inspection of documents and things (Rule 27);

Upon motion of any party showing good cause therefor, the court in which an action is pending may
order any party to produce and permit the inspection and copying of any designated documents or order any
party to permit entry upon designated land or other property in his possession or control for the purpose of
inspecting or photographing the property or any designated relevant object or operation thereon. ; and

(f) Physical and mental examination of persons (Rule 28).

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 or mental examination by a
physician.

In an admiralty case filed by Andrea against Y Shipping Lines (whose principal offices are in Manila)
in the RTC of Davao City, the court issued a subpoena duces tecum directing Jason, the president of the
shipping company, to appear and testify at the trial and to bring with him several documents. Jason refused to
comply with the subpoena duces tecum on the ground that he resides more than 100 kilometers from Davao
City, which the Court found justifiable. How can Andrea take the testimony of Jason and present the documents
as exhibits other than through the subpoena from the RTC?

Answer: A can take the testimony of Y and present the documents as exhibits by taking his deposition through
oral examination or written interrogatories (Rule 24; new Rule 23). He may also file a motion for the production
or inspection of documents (Rule 27).

VI

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

Answer: 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.

(B) 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?

Answer: 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 (Sec. 3(c), Rule 29).

VII
Linda, as mother and in her capacity as legal guardian of her legitimate minor son, Habeas, brought
action for support against Albert, as father of Habeas and Linda’s lawfully wedded husband. Albert filed his
answer denying his paternity with counterclaim for damages. Subsequently, Linda filed a manifestation in
court that in view of the denial made by Albert, it would be futile to pursue the case against Albert. Linda
agreed to move for the dismissal of the complaint, subject to the condition that Albert will withdraw his
counterclaim for damages. Linda and Albert filed a joint motion to dismiss. The court dismissed the case with
prejudice. Later on, minor son Habeas, represented by Linda, filed another complaint for support against
Albert. Albert filed a motion to dismiss on the ground of res judicata.
(A) Is res judicata a valid ground for dismissal of the second complaint?

Answer: 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 counterclaim for damages. This was in
the nature of a compromise of the right to support which is prohibited by law

(B) What are the essential requisite of res judicata?

Answer: The following are the requisites of res judicata:


(1) the former judgment must be final;
(2) the court that rendered it had jurisdiction over the subject matter and the parties;
(3) it is a judgment on the merits; and
(4) there is — between the first and the second actions — an identity of parties, subject matter and cause of
action.

VIII
On August 13, 2008, Krisma, 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. Krisma
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. She attached to the complaint the
Bill of Lading.

B Lines served on Krisma 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 City. Krisma failed to appear at the deposition-taking, despite notice.
As counsel for B Lines, how would you proceed?
Answer: As counsel for B Lines (which gave notice to take the deposition), I shall proceed as follows: 1. Find
out why A failed to appear at the deposition-taking, despite notice; 2. If failure was for valid reason, then set
another date for taking the deposition; 3. 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 the discovery; and 4. 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.

IX
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.

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 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
X
What is/are the consequence/s of a plaintiff’s refusal to comply with modes of discovery?

Answer: If any party or an officer or managing agent of a party refuses to obey an order made under section
1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any
document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit
entry upon land or other property or an order made under Rule 28 requiring him to submit to a physical or
mental examination, the court may make such orders in regard to the refusal as are just, and among others the
following:

(a) An order that the matters regarding which the questions were asked, or the character or description of the
thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other
designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or
prohibiting him from introducing in evidence designated documents or things or items of testimony, or from
introducing evidence of physical or mental condition;

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed,
or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the
disobedient party; and

(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or
agent of a party for disobeying any of such orders except an order to submit to a physical or mental
examination.

XI
Xandro filed a complaint in the RTC for the recovery of a sum of money with damages against Yeba.
Yeba filed 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 Xandro and Yeba two weeks after the contract of sale was executed. The contract of
lease was attached to the answer. Xandro did not file a reply. What is the effect of Xandro’s non-filing of a
reply?
XII
What are the available remedies of a party declared in default

(A) before the rendition of judgment,

Answer: if judgment has already been rendered when he discovered the default, but before the same has become
final and executory, he may file a motion for new trial under Section 1(a) of Rule 37

(B) after judgment but before its finality, and

Answer: he may, at any time after discovery of the default but before judgment, file a motion, under oath, to set aside
the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable neglect,
and that he has a meritorious defense;

(C) after finality of judgment?

Answer: if he discovered the default after the judgment has become final and xecutor, he may file a petition
for relief under Section 2 of Rule 38; and he may also appeal from the judgment rendered against him as
contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented
by him. Thus, respondent, which had been declared in default, may file a notice of appeal and question the
validity of the trial court’s judgment without being considered to have submitted to the trial court’s authority.

Alternative answer:
(1) Remedy after notice of order and before judgment:

(a) Motion to set aside order of default, showing that (a) the failure to answer was due to fraud, accident,
mistake, or excusable negligence, and (b) the defendant has a meritorious defense—there must be an affidavit
of merit (Sec. 3[b], Rule 9).

(2) Remedy after judgment but before finality:

(b) Motion for new trial under Rule 37; or


(c) Appeal from the judgment as being contrary to the evidence or the law;

(3) Remedy after judgment becomes final and executor:

(d) Petition for relief from judgment under Rule 38;


(e) Action for nullity of judgment under Rule 47.

XIII
During trial, plaintiff was able to present, without objection on the part of 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. May
the corresponding pleading still be amended to conform to the evidence?

XIV
Distinguish between a deposition benne esse and deposition in perpetuam rei memoriam.

Answer: A deposition may be sought for use in a future action (Rule 24), during a pending action (Rule 23),
or for use in a pending appeal (Rule 24). If the deposition is for use during a pending action, it is commonly
called a deposition benne esse and is governed by Rule 23. If it is to perpetuate a testimony for use in future
proceedings as when it is sought before the existence of an action, or for cases on appeal, it is called a
deposition in perpetuam rei memoriam. Any or all of the deposition, so far as admissible under the rules of
evidence, may be used (a) against any party who was present or represented at the taking of the deposition, or
(b) against one who had due notice of the deposition (Sec. 4, Rule 23).

XV
What is/are the purpose/s of the rules of discovery?
Answer: The basic purposes of the rules of discovery are:

(a) To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of
third parties through depositions;
(b) To obtain knowledge of material facts or admissions from the adverse party through written interrogatories;
(c) To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant
matters of fact through requests for admissions;
(d) To inspect relevant documents or objects, and lands or other property in the possession and control of the
adverse party; and
(e) To determine the physical or mental condition of a party when such is in controversy (Koh vs. IAC, 144
SCRA 259)