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First Year > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

what is an amendment?

A

it is an act of adding, changing, substituting, or omitting something from a pleading or instrument

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2
Q

according to Section 1 of Rule 10, how may pleadings be amended?

A
  1. by adding or striking out an allegation or the name of any party; or
  2. by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect.
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3
Q

true or false: an amended is allowed if the purpose is to set up a cause of action not existing at the time of the complaint.

A

false. an amended is NOT ALLOWED if the purpose is to set up a cause of action not existing at the time of the filing of the complaint.

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4
Q

under Section 1 of Rule 10, what are the different kinds of amendment?

A

Amendment as a Matter of Right;
Amendment by Leave of Court;
Substantial Amendment;
Formal Amendment

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5
Q

true or false: under Section 2 of Rule 10, a party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within 10 calendar days after it is served.

A

true.

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6
Q

true or false: Section 2 of Rule 10 states that a plaintiff may amend his complaint twice as a matter of right before any responsive pleading is filed and served.

A

false. a plaintiff may amend his complaint ONCE as a matter of right before any responsive pleading is filed and served.

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7
Q

true or false: a motion to dismiss is not a responsive pleading.

A

true.

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8
Q

what is a responsive pleading?

A

a responsive pleading are those which seek affirmative relief and/or set up defenses, like an answer.

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9
Q

true or false: since a motion to dismiss is not a responsive pleading, amendment of the complaint is not available even if a motion to dismiss is filed or it is submitted for resolution.

A

false. since a motion to dismiss is not a responsive pleading, amendment of the complaint is still available even if a motion to dismiss is filed or it is submitted for resolution.

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10
Q

true or false: amendment of the complaint may be allowed even if an order for its dismissal has been issued as long as the motion to amend is filed before the dismissal order becomes final.

A

true

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11
Q

what is the proper remedy in case of denial of the motion to amend as a matter of right?

A

file a petition for mandamus under Section 3, Rule 65

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12
Q

is service of summons required in case of an amendment?

A

no, service of summons is not required. only in cases where the court has not yet acquired jurisdiction over the person of the defendant, nor has the defendant filed his answer, or has he voluntarily submitted to the jurisdiction of the court.

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13
Q

should a defendant who has not yet appeared in court be served with summons?

A

yes. because the court has not yet acquired jurisdiction over his person. a service of summons is not needed only in cases where the court has acquired jurisdiction over the defendant, or when the defendant has filed his answer, or when the defendant has voluntarily submitted himself to the jurisdiction of the court.

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14
Q

is a certification against forum shopping required in case of amendment?

A

no. certification against forum shopping is only required in case of substantial amendment.

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15
Q

what is the rule on the application of amendment with leave of court?

A

the amendment should be applied with liberality

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16
Q

under Section 2 of Rule 10, what are the grounds for denial of leave of court?

A
  1. the motion was made with intent to delay;
  2. it is intended to confer jurisdiction on the court; or
  3. pleading stated no cause of action from the beginning which could be amended.
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17
Q

under Section 2 of Rule 10, what are the requirements for the issuance of an Order to amend with leave of court?

A
  1. upon motion filed in court;
  2. after notice to the adverse party;
  3. an opportunity to be heard.
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18
Q

under Section 2 of Rule 10, what are the limitations on the grant of amendment?

A
  1. should not substantially change the cause of action;
  2. shall not alter the theory of the case; or
  3. it was made to delay the action.
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19
Q

what is the exception to the limitations stated under Section 2 of Rule 10?

A

even if the amendment substantially alters the cause of action or defense, such amendment could still be allowed when it is sought to serve the higher interest of substantial justice; prevent delay; and secure a just, speedy, and inexpensive disposition of action and proceedings.

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20
Q

when is substantial change or alteration in the same cause of action or defense allowed? (Bar Examination, 2018)

A

substantial change or alteration in the same cause of action or defense is allowed when the amendments sought to be made shall serve the higher interests of substantial justice, and prevent delay and equally promote the laudable objective of the rules which is to secure a just, speedy, and inexpensive disposition of every action and proceeding.

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21
Q

what is the proper remedy in case of denial of the motion for leave to file an amendment?

A

petition for certiorari under Rule 65.

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22
Q

true or false: under Section 4 of Rule 10, a defect in the designation of the parties and other clearly clerical or typographical errors results to a dismissal of the case.

A

false. under Section 4 of Rule 10, a defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or motion, provided that no prejudice is caused thereby to the adverse party.

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23
Q

true or false: under Section 5 of Rule 10, when issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all aspects as if they had been raised in the pleadings. no amendment of such pleadings deemed amended is necessary to cause them to conform to the evidence.

A

true.

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24
Q

true or false: under Section 6 of Rule 10 states that upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented.

A

true.

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25
Q

true or false: under Section 6 of Rule 10, the filing of a supplemental pleading raising new and different causes of action that arose after the filing of the original complaint which has no relation whatsoever to the causes of action in the original complaint is allowed.

A

false. under Section 6 of Rule 10, the filing of a supplemental pleading raising new and different causes of action that arose after the filing of the original complaint which has no relation whatsoever to the causes of action in the original complaint is NOT allowed.

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26
Q

true or false: a supplemental pleading only servers to bolster or add something to the primary pleading.

A

true

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27
Q

what is the nature and purpose of a supplementary pleading?

A

to bolster or add something to the primary pleading.

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28
Q

true or false: the admission of a supplemental pleading is discretionary upon the court.

A

true. the admission of a supplemental pleading is discretionary since is uses the word “may” in the Rules.

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29
Q

differentiate amended v supplemental pleading

A

in terms of filing
- amended: matter of right or with leave of court
- supplemental: always with leave of court

facts alleged
- amended: occurred before the filing of the original pleading
- supplemental: occurred after the filing of the original pleading

superiority against the original pleading:
- amended: supersedes the original pleading
- supplemental: does not supersede

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30
Q

what are the requirements that need to be complied when any pleading is amended and filed under Section 7, Rule 10?

A
  1. a new copy of the entire pleading;
  2. incorporating the new amendments;
  3. shall be indicated by appropriate marks;
  4. shall be filed
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31
Q

what are the effects of the amendment of a pleading under Section 8 of Rule 10?

A
  1. supersedes the pleading it amends;
  2. admissions in superseded pleadings may be offered in evidence against the pleader; and
  3. claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived
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32
Q

under Section 8 of Rule 10, what are the other effects of the amendment of a pleading?

A
  1. admissions made in the original pleading shall be treated as an extra-judicial admission which shall be alleged and proved;
  2. any ancillary order or remedy issued in the original pleading shall be deemed vacated or lifted;
  3. requires another certification of non-forum shopping;
  4. requires the service of summons only if the defendant has not yet appeared before the court and submitted to its jurisdiction
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33
Q

what is a summons?

A

a summons is a writ by which the defendant is notified of the action brought against him or her.

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34
Q

true or false: in a civil action, service of summons is not required over the person of the defendant. any judgment without such service, in the absence of a valid waiver, will not be deemed null and void.

A

false. in a civil action, service of summons is REQUIRED over the person of the defendant. any judgment rendered without such service, in the absence of a valid waiver, will BE DEEMED NULL AND VOID.

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35
Q

what is the two-fold purpose of summons?

A
  1. for the court to acquire jurisdiction over the person of the defendant;
  2. to notify the defendant of the case against him
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36
Q

what are the two ways of acquiring jurisdiction over the person of the defendant?

A
  1. service of summons;
  2. voluntary appearance.
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37
Q

what are the two kinds of summons?

A
  1. original summons;
  2. alias summons
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38
Q

what is an original summons?

A

an original summons is the writ issued by the clerk of court upon receipt of the complaint and the payment of the requisite docket fees.

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39
Q

what is an alias summons?

A

an alias summons is a writ issued by the clerk of court when the original summons has been lost or not duly served without fault on the part of the plaintiff.

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40
Q

true or false: in case of invalid service of summons, the court can still acquire jurisdiction over the person of the defendant and the judgment therein shall still be considered void.

A

false. in case of invalid service of summons, the court acquires NO JURISDICTION over the person of the defendant and the judgment shall be NULL and VOID.

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41
Q

will lack of jurisdiction over the defendant through defective service of summons be a ground for annulment of judgment?

A

yes. lack of jurisdiction being a valid ground for annulment of judgments, circumstances that negate the court’s acquisition of jurisdiction including defective service of summons are causes for an action for annulment of judgments.

42
Q

what are the two grounds that an action for annulment of judgment may be based on?

A
  1. extrinsic fraud;
  2. lack of jurisdiction.
43
Q

an action for annulment of judgment may not be invoked in instances where:

A
  1. the party has availed himself of the remedy of new trial, appeal, petition for relief, or other appropriate remedy and lost; or
  2. has failed to avail himself of those remedies through his own fault or negligence.
44
Q

differentiate summons from a subpoena.

A

summons: writ issued by the clerk of court which the defendant is being notified of the action brought against him.
subpoena: writ issued by the judge requiring an individual to appear and testify before the court.

summons: original and alias
subpoena: duces tecum and ad testificandum

summons: purpose is to acquire jurisdiction over the defendant
subpoena: purpose is to require a person to testify or to bring documents or books to the court.

summons: remedy is to file a motion to dismiss for lack of jurisdiction over the person or ask for alias summons
subpoena: remedy is a motion to quash subpoena

summons: issued upon receipt of the complaint and payment of the corresponding docket fees
subpoena: issued during trial

45
Q

true or false: under Section 1 of Rule 14, the court can issue summons within ten calendar days from receipt of the initiatory pleading and proof of payment of the requisite fees unless the complaint is dismissible under Section 1 of Rule 9.

A

false. under Section 1 of Rule 14, the court can issue summons within FIVE calendar days from the receipt of the initiatory pleading and proof of payment of the requisite fees unless the complaint is dismissible under Section 1 of Rule 9.

46
Q

Section 2 of Rule 14 states that the summons shall contain the following:

A
  1. name of the court and parties to the action;
  2. authorization for the plaintiff to serve summons to the defendant;
  3. direction that the defendant answer within the time fixed by these Rules; and
  4. notice that the plaintiff will take judgment by default and may be granted the relief prayed for unless the defendant answers.
47
Q

true or false: a copy of the complaint and order for appointment of guardian ad litem, need not be attached to the original and each copy of the summons.

A

false. a copy of the complaint and order for appointment of guardian ad litem, SHOULD be attached to the original and each copy of the summons.

48
Q

under Section 3 of Rule 14, who are the authorized people to serve summons?

A
  1. Sheriff;
  2. His or her deputy; or
  3. Plaintiff together with the Sheriff (in case of failure of service of summons by the first two)
49
Q

what is the rule in cases where the summons is to be served outside the judicial region of the court where the case is pending?

A

in cases where the summons is to be served outside the judicial region of the court where the case is pending, the plaintiff shall be authorized to cause the service of summons.

50
Q

what are the requirements of the service of summons in case the plaintiff is a juridical entity under Section 3 of Rule 14?

A
  1. name of its authorized representative therein;
  2. a board resolution or secretary’s certificate;
  3. state that such representative is duly authorized to serve the summons on behalf of the plaintiff.
51
Q

how should the court be notified in the instance wherein the service of summons has to be done by a juridical entity?

A

the plaintiff should notify the court through writing.

52
Q

what happens if the plaintiff misrepresents that the defendant was served with summons, and is later proved that no summons was served? (Section 3, Rule 14)

A

the case shall be:

  1. dismissed with prejudice;
  2. proceedings shall be nullified;
  3. plaintiff shall be meted with appropriate sanctions.
53
Q

is the service of summons to the respondent required in case of a petition for habeas corpus?

A

no, a writ of habeas corpus plays a role somewhat comparable to a summons, in ordinary civil actions, in that, by service of the said writ, the court acquires jurisdiction over the person of the respondent.

54
Q

is service of summons to the respondent required in case of a petition for certiorari, prohibition, mandamus, and quo warranto?

A

no. it is expressly stated in Section 4 of Rule 46 that the court shall acquire jurisdiction over the person of the respondent by the service on him of its order or resolution indicating its initial action on the petition or by his voluntary submission to each jurisdiction.

55
Q

true or false: Section 4 of Rule 14 states that summons shall remain valid until duly served, unless it is recalled by court.

A

true.

56
Q

what can the court do in case of loss or destruction of summons?

A

in case of loss or destruction of summons, the court may, upon motion, issue an alias summons.

57
Q

under Section 5 of Rule 14, service of summons on the person of the defendant should be made by:

A
  1. handing a copy thereof to the defendant in person and informing the defendant that he or she is being served;
  2. if the defendant refuses to receive and sign the summons, it should be left within the view and in the presence of the defendant.
58
Q

what is the preferred mode of service in an action in personam?

A

the preferred mode of service and copy of the complaint must be made upon the defendant in person.

59
Q

what is the nature of service of summons in an action in personam?

A

the modes of service of summons must be strictly followed in an action in personam in order that the court may acquire jurisdiction over the person of the defendant.

60
Q

what are the alternative ways service of summons may be effected on a defendant if it cannot be served to him or her personally? (Section 6, Rule 14)

A
  1. leaving copies of the summons at the defendant’s residence to a person of at least 18 years of age with sufficient discretion;
  2. leaving copies of the summons at the defendant’s office or regular place of business with a competent person;
  3. leaving copies of the summons with any of the officers of the homeowners’ association or condominium corporation
  4. sending an email.
61
Q

what is the requirement for a valid substituted service of summons? (Section 6, Rule 14)

A

there must be several attempts made by the sheriff.

62
Q

true or false: failure to comply with the substituted service renders the service ineffective.

A

true.

63
Q

can summons be served by substituted service to a defendant permanently residing abroad?

A

no, not being a resident of the address where the summons was served, the substituted service of summons is ineffective. hence, the court did not acquire jurisdiction over the person of the defendant.

64
Q

what is the general rule on serving summons?

A

summons must be served personally on the defendant in accordance with Section 6, Rule 14.

65
Q

what happens when the defendant’s whereabouts are unknown?

A

service of summons may be made by publication.

66
Q

what is the requirement in case summons was served in the place of business of the defendant in case of substituted service?

A

it is enough that the person appears to be in charge of the business.

67
Q

under Section 7 of Rule 14, who are the alternative people the service of summons may be effected on when the persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known?

A
  1. all the defendants by serving any one of them; or
  2. upon the person in charge of the office or place of business maintained in such name.
68
Q

to whom shall service of summons be effected on if the defendant is a prisoner confined in jail or an institution? (Section 8, Rule 14)

A

service shall be effected upon him or her by the officer having the management of such jail or institution.

69
Q

to whom shall the service of summons be made upon if the defendant is a minor, insane or otherwise an incompetent person? (Section 10, Rule 14)

A
  1. him or her personally and on his or her guardian. if no guardian, upon his or her guardian ad litem whose appointment shall be applied for by the plaintiff;
  2. in case of a minor, service shall be made on his or her parent or guardian.
70
Q

true or false: Section 11 of Rule 14 states that when spouses are sued jointly, service of summons should also be made to them jointly.

A

false. Section 11 of Rule 14 states that when spouses are sued jointly, the service of summons should be made to each spouse individually.

71
Q

to whom should the service of summons be made upon if the defendant is a corporation, partnership, or association organized under the laws of the Philippines with a juridical personality?

A

president
managing partner
general manager
corporate secretary
treasurer
in-house counsel
their secretaries

72
Q

if the service of summons cannot be made on a corporation’s president, managing partner, general manager, corporate secretary, xxx to whom shall the service of summons be made upon?

A

the service of summons shall be made upon the person who customarily receives the correspondences.

73
Q

what is the rule wherein the lawyer makes a special appearance on behalf of the defendant, to, among others question the validity of the improperly served summons? (Section 13, Rule 14)

A

under Section 13 of Rule 14, if the summons is improperly served and a lawyer makes a special appearance on behalf of the defendant to question the validity of the service of summons, the counsel shall be deputized by the court to serve the summons on his or her client.

74
Q

under Section 14 of Rule 14, when the defendant is a foreign judicial entity which has transacted or is doing business in the Philippines, the service may be made on:

A
  1. its resident agent designated in accordance with law for that purpose;
  2. if there be no such agent, on the government official designated by law to that effect, or
  3. any of its officers, directors, or trustees within the Philippines.
75
Q

under Section 14 of Rule 14, if the foreign private juridical entity is not registered in the Philippines, or has no resident agent but has transacted or is doing business in it, such service, through leave of court, may be effected outside of the Philippines through any of the following means:

A
  1. personal service coursed through the appropriate court in the foreign country with the assistance of the DFA;
  2. publication in a newspaper of general circulation in the country where the defendant may be found;
  3. fax;
  4. electronic means with the prescribed proof of service;
  5. other means as the court, in its discretion, may direct.
76
Q

true or false: under Section 14 of Rule 14, failure to strictly comply with the requirements of emailing copies of the summons and the order for its publication is a fatal defect in the service of summons.

A

true.

77
Q

to whom should the service be effected on if the defendant is the Republic of the Philippines? (Section 15, Rule 14)

A

the Solicitor General.

78
Q

to whom should the service be effected on in case the defendant is a province, city or municipality, or like public corporations? (Section 15, Rule 14)

A

executive head or on such other officer or officers as the law or the court may direct.

79
Q

how should the service of summons be effected on if the defendant’s whereabouts are unknown? (Section 16, Rule 14)

A

through publication in a newspaper of general circulation.

80
Q

what are the actions which can be subject of extraterritorial service of summons in case of a non-resident defendant under Section 17 of Rule 14?

A
  1. when the action affects the personal status of the plaintiff;
  2. the subject of which is a property within the Philippines
  3. property of the defendant has been attached within the Philippines.
81
Q

in the cases stated in Section 17 of Rule 14, how can service of summons be effected upon the defendants?

A
  1. personal service under Rule 6;
  2. international conventions in which the PH is a member;
  3. publication in a newspaper
82
Q

what is the purpose of service of summons to a non-resident defendant not found in the Philippines?

A

it is a requirement of fair play that the defendant be informed of the pendency of the action against him and to defend himself

83
Q

can the court acquire jurisdiction in case of a non-resident defendant and the case is an action in personam?

A

no; if the defendant does not reside and is not found in the Philippines, the Philippine courts cannot try any case against it because of the impossibility of acquiring jurisdiction over its person.

84
Q

true or false: the court can only acquire jurisdiction if the defendant voluntarily appears in court.

A

true.

85
Q

can the court in an action in personam acquire jurisdiction over the person of the defendant who is temporarily out of the Philippines? (Section 18, Rule 14)

A

no, in an action in personam the defendant must be a resident of the Philippines, otherwise it cannot be brought because jurisdiction over his person is essential to make a binding decision.

86
Q

what are the requirements in case of service with leave of court under Section 19 of Rule 14?

A
  1. motion in writing;
  2. supported by the affidavit of the plaintiff or some person on his behalf; and
  3. setting forth the grounds for the application.
87
Q

under Section 20 of Rule 14, how many days should the sheriff or process server complete the service of summons?

A

within 30 calendar days from the issuance of summons by the clerk of court.

88
Q

how many days should the server file with the court and serve a copy of the return to the plaintiff’s counsel, personally, by registered mail, or by electronic means under Section 20 of Rule 14?

A

5 calendar days from the service of summons

89
Q

what should be stated in the return in case of substituted service of summons?

A
  1. impossibility of prompt personal service within the 30-day calendar period;
  2. date and time of the 3 attempts on at least 2 different dates;
  3. name of the person the summons was being left to
90
Q

what are the requisites for a valid substituted service of summons under Section 20, Rule 14?

A
  1. impossibility of prompt personal service;
  2. specific details in the return;
  3. name of the competent person in charge
91
Q

what are the rules regarding the proof of service of a summons? (Section 21, Rule 14)

A
  1. made in writing by the server;
  2. set forth the manner, place, and date of service;
  3. specify any papers which have been served with the name of the person who received the same;
  4. sworn when made by a person other than a sheriff or his or her deputy.
92
Q

how can summons served through electronic mail be proven? (Section 21, Rule 14)

A
  1. printout of the said email, with a copy of the summons served;
  2. affidavit of the person mailing
93
Q

under Section 22 of Rule 14, how can service of summons through publication be proven?

A
  1. affidavit of the publisher, editor, business or advertising manager, to which affidavit a copy of the publication shall be attached;
  2. affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant
94
Q

under Section 23 of Rule 14, the defendant’s voluntary appearance in the action shall be:

A
  1. equivalent to the service of summons;
  2. inclusion in a motion to dismiss on other grounds aside from lack of jurisdiction over the person
95
Q

is voluntary appearance without objection a submission to the jurisdiction of the court?

A

an appearance in whatever form, without explicitly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person

96
Q

true or false: filing a motion for additional time to file an answer is considered voluntary submission to the jurisdiction of the court.

A

true

97
Q

how can jurisdiction over the defendants in a civil case be acquired?

A
  1. through the service of summons;
  2. voluntary appearance in court and their submission to its authority
98
Q

true or false: the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration is not considered voluntary submission to the trial court’s jurisdiction.

A

false. the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration IS CONSIDERED voluntary submission to the trial court’s jurisdiction.

99
Q

true or false: when the defendant’s appearance is made precisely to object to the jurisdiction of the court over his person, it cannot be considered as an appearance in court.

A

true

100
Q

true or false: special appearance in court challenging the jurisdiction of the said court based on the ground of invalid service of summons is also a voluntary submission.

A

special appearance in court challenging the jurisdiction of the said court based on the ground of invalid service of summons is also NOT a voluntary submission.

101
Q

true or false: Service of summons coursed through a co-defendant agent is not a submission to the jurisdiction of the court.

A

true

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