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First Year > Civil Procedure: Module 4 > Flashcards

Civil Procedure: Module 4 Flashcards

1
Q

what is a summons?

A

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

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2
Q

true or false: a service of summons is a vital and indispensable ingredient of due process

A

true

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3
Q

true or false: compliance with the rules regarding the service of summons is not mandatory.

A

false. compliance with the service of summons is a requirement of due process and jurisdiction.

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4
Q

what is the two-fold purpose of summons?

A
  1. to acquire jurisdiction over the person of the defendant;
  2. to notify the defendant that an action has been commenced so that he may be given an opportunity to be heard on the claim against him and the theory on which such claim is presented.
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5
Q

what is the general rule when there is an improper service of summons?

A

the general rule is that without service of summons, or when summons are improperly made, both the trial and the judgment, being in violation of due process, are null and void.

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6
Q

what is the exception to the general rule of no proper service of summons?

A

unless the defendant waives the service of summons by voluntarily appearing and answering the suit.

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7
Q

true or false: proper service of summons is discretionary.

A

false. regardless of any type of action, proper service of summons is imperative.

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8
Q

what is the purpose of the service of summons?

A

the purpose is to comply with due process and to acquire jurisdiction over the person of the defendant.

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9
Q

true or false: the mere filing of the complaint and payment of the lawful fees enables the court to acquire jurisdiction over the person of the defendant.

A

false. the mere filing of the complaint and payment of the lawful fees does not automatically give the court jurisdiction over the defendant. a valid service of summons is required so that the court may acquire jurisdiction over the person of the defendant.

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10
Q

true or false: where the action is in personam, that is, one brought against a person on the basis of his or her personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case.

A

true.

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11
Q

in what cases is the court not able to acquire jurisdiction over the defendant?

A
  1. in an action for damages
  2. in an action for sum of money
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12
Q

true or false: knowledge by the defendant of the action filed against him dispenses the needs for summons.

A

false. knowledge of the defendant of the action filed against him does not dispense the need for summons. summons must still be issued and served upon him.

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13
Q

true or false: the court is primarily concerned with the jurisdiction over the person of the defendant in actions in rem and quasi in rem.

A

false. the court is not primarily concerned with the jurisdiction over the person of the defendant. the acquisition by the court of jurisdiction over the res is what principally matters.

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14
Q

how does the court acquire jurisdiction over the res?

A
  1. the seizure of property under legal process;
  2. as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective.
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15
Q

what are the two ways to acquire jurisdiction over the person?

A
  1. by summons
  2. by voluntary appearance or submission to the court
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16
Q

true or false: the defendant’s voluntary appearance in the action shall be equivalent to service of summons.

A

true.

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17
Q

true or false: the inclusion in a motion to dismiss of other grounds aside from the lack of jurisdiction over the person of the defendant is not considered a voluntary appearance.

A

false. the inclusion of a motion to dismiss on other grounds aside from the lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance.

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18
Q

true or false: filing a motion to dismiss based on lack of jurisdiction over the person of the defendant as a sole ground equates to no voluntary appearance.

A

true.

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19
Q

what is a voluntary appearance?

A

a voluntary appearance is any appearance of the defendant in court.

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20
Q

true or false: if the defendant’s motion is for any other purpose than to object the jurisdiction of the court over his person, he thereby submits himself to the jurisdiction of the court.

A

true.

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21
Q

what is the principle of voluntary appearance?

A

the court immediately acquires jurisdiction over the defendant as long as the defendant performs acts that could be construed as a voluntary appearance.

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22
Q

true or false: the act of making a conditional or special appearance in court to object to the jurisdiction that the court over his person, is not a voluntary appearance or a voluntary submission to the court.

A

true.

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23
Q

what is a special appearance?

A

this is an appearance made for the purpose of objecting to the court’s jurisdiction over the person of the defendant.

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24
Q

who issues the summons?

A

the clerk of court.

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25
Q

when should the summons be issued?

A

within 5 calendar days from the filing of the complaint and the payment of docket and other lawful fees.

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26
Q

to whom is the summons directed to?

A

the defendant

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27
Q

what is the period to file an answer to an amended complaint?

A

upon receipt of the amended complaint and the summons, the defendant is given another period of 15 calendar days to file an answer to the amended complaint.

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28
Q

who serves the summons?

A
  1. sheriff
  2. sheriff’s deputy
  3. other proper court officer
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29
Q

in case of failure of the service of summons by the officer in charge, who else may serve the summons?

A

the plaintiff, authorized by court, together with the sheriff.

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30
Q

what happens if the plaintiff misrepresents that the defendant was served with summons, and later proved that no summons was served?

A

the case shall be dismissed with prejudice, the proceedings shall be nullified, and the plaintiff shall be meted with the appropriate sanctions.

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31
Q

what happens if the summons is returned by the sheriff without being served on any or all of the defendants?

A

the court may authorize the plaintiff to cause the service of summons by other means available under the rules.

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32
Q

what happens when the plaintiff fails to comply with the order of serving the summons?

A

failure to comply with the order of service of summons shall cause the dismissal of the initiatory pleading without prejudice.

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33
Q

what is the general rule on the uniformity of the rules of summons?

A

the rules of summons apply with equal force in actions before the RTC, MTC, MTCC, MCTC and MTTTC.

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34
Q

what is the exception to the general rule of uniformity of the rules of summons?

A
  1. where a particular provision expressly or impliedly applies only to either of the said courts, or
  2. in civil cases governed by the Rule on Summary Procedure.
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35
Q

what is the rule in case of failure of the sheriff to serve summons?

A

the plaintiff may request to the court that he be allowed to serve the summons.

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36
Q

what is the lifespan of the summons?

A

summons shall remain valid until duly served, unless recalled by the court.

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37
Q

remedy in the event that the summons is destroyed or lost in the hands of the plaintiff or the sheriff?

A

the court may issue an alias summons.

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38
Q

what is an alias summons?

A

the summons that is issued when the original has not produced its effects because of a defect in form or in the manner of service, and when issued supersedes the first writ.

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39
Q

what is the hierarchy in the service of summons?

A
  1. service in person on defendant
  2. substituted service
  3. service by publication
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40
Q

true or false: failure to comply faithfully, strictly, and fully with all the foregoing requirements of substituted service renders the service of summons ineffective.

A

true.

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41
Q

when are summons served during the day?

A

summons may be served at any time of the day.

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42
Q

where can summons be served?

A
  1. at the residence of the defendant
  2. defendant’s place of office
  3. any other place where he or she could be found.
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43
Q

remedy when the defendant refuses to receive and sign the summons?

A

if the defendant refuses to receive and sign the summons, the officer in charge should leave the summons within the view and in the presence of the defendant.

44
Q

what is a return service of summons?

A

the sheriff will have to make a report or a return of service of summons to the court within five days from the service of summons on the defendant.

45
Q

can the sheriff give the summons to another person for and in behalf of the defendant?

A

yes, this is called substituted service of summons.

46
Q

when should summons in substituted service be served?

A

between 8AM to 6PM

47
Q

true or false: in order to avail substituted service, the impossibility of service in person must be shown. there must be several attempts by the sheriff to personally serve the summons within a reasonable period of 1 month, which eventually resulted in failure to prove impossibility of prompt service.

A

true.

48
Q

differentiate substituted service of summons from substituted service of pleadings

A

substituted service of summons: refers to the delivery of the summons and the complaint to another person

substituted service of pleadings: consists of the delivery of the pleadings to the clerk of court because the other party and his lawyer could no longer be found or served with the copy of the pleading.

49
Q

how many attempts would classify under the term, “several attempts”?

A

at least 3 tries, preferably on 2 different dates.

50
Q

what is the general rule in summons by publication?

A

summons by publication is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam.

51
Q

exception to the general rule in summons by publication

A
  1. where the identity or whereabouts of the defendant are unknown
  2. when the defendant is a resident temporarily out of the Philippines
52
Q

what is the general rule in publication of summons in an action in personam for a non-resident?

A

summons by publication against a non-resident in an action in personam is not a proper mode of service.

53
Q

what is the exception to the general rule of summons by publication against a non-resident?

A

when the defendant is a foreign private juridical entity not registered or with no resident agent in the Philippines.

54
Q

can an entity without juridical personality be sued?

A

yes

55
Q

how may summons be served upon the non-existent corporation or upon those who compose the corporation?

A

summons may be effected upon all the defendants by serving summons upon:

a. any one of them
b. upon the person in charge of the office or of the place of business maintained in such name.

56
Q

true or false: service of summons will still individually bind any person whose connection with the entity, upon due notice, has been severed before the action was brought.

A

false. service of summons will not individually bind any person whose connection with the entity, upon due notice, has been severed before the action was brought.

57
Q

how should the service of summons be effected upon the defendant who is a prisoner confined in a jail or institution?

A

the jail warden designated as the special sheriff should serve the service of summons to the defendant.

58
Q

true or false: service may be made through methods which are consistent with established international conventions to which the Philippines is a party.

A

true

59
Q

to whom should the service of summons be made upon in case of an incompetent person?

A

service of summons shall be made upon the incompetent person and his legal guardian.

60
Q

to whom should the service of summons be made upon if the defendant is a minor?

A

in case of a minor, the service of summons should be made upon his parents or legal guardian.

61
Q

true or false: when spouses are sued jointly, the service of summons should be made to each spouse individually.

A

true. when spouses are sued jointly, the service of summons should be made to each spouse individually.

62
Q

true or false: a foreign corporation not doing business in the Philippines can still be sued in the Philippines.

A

false. a foreign corporation not doing business in the Philippines cannot be sued in the Philippines.

63
Q

if a foreign corporation is doing business in the Philippines, to whom can the service of summons be effected upon?

A

the service of summons can be done through its agent.

64
Q

service upon a foreign corporation not registered in the Philippines but is doing business in the Philippines can be effected outside the Philippines through what measures?

A

with leave of court, can be effected through:

  1. personal service
  2. publication
  3. fax
  4. electronic means
  5. other means as the court may direct.
65
Q

when the defendant is the Republic of the Philippines, to whom should the service of summons be effected upon?

A

the Solicitor General

66
Q

when the defendant is a province, city or municipality, or like public corporations, to whom should the service of summons be effected upon?

A

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

67
Q

true or false: jurisprudence instructs that when a suit is directed against an unincorporated government agency, the suit should be against the agency’s principal which is the State.

A

true. this is because the unincorporated government agency possessed no juridical personality of its own.

68
Q

what is the general rule on effecting service upon a defendant whose identity or whereabouts are unknown?

A

within 90 calendar days from the commencement of the action, service may, by leave of court, be effected upon him or her by publication in a newspaper of general circulation and in such places and for such time as the court may order.

69
Q

what are the requisites for extraterritorial service of summons?

A
  1. the defendant is a non-resident
  2. he is not found in the Philippines
  3. the action against him or her is either in rem or quasi in rem
70
Q

when is extraterritorial service of summons not applicable?

A
  1. does not apply to a defendant who is a resident in the Philippines.
  2. does not apply to an action in personam.
71
Q

what are alternative modes in extraterritorial service of summons?

A
  1. service in person on the defendant;
  2. publication in a newspaper of general circulation;
  3. in any manner the court may deem sufficient.
72
Q

requirements that should be fulfilled whenever leave of court is necessary to effect the service of summons?

A
  1. made by motion in writing
  2. supported by an affidavit setting forth the grounds for the application.
73
Q

what should the return state after the substituted service has been effected?

A
  1. impossibility of prompt personal service within the period of 30 calendar days from issue and receipt of the summons
  2. date and time of the three attempts on at least two different dates
  3. name of the person who received the summons on behalf of the defendant.
74
Q

what should the return state if the summons was personally served on the defendant?

A
  1. when it was served to the defendant; and
  2. where it was served
75
Q

what should the return state if the summons was done via substituted service of summons?

A
  1. name of the person who received the summons
  2. when the summons was served
  3. that the substituted service of summons was resorted to because he could not locate the defendant despite several attempts
  4. made at least three attempts on two separate dates but failed
76
Q

true or false: after the completion of the service, a proof of service is required to be filed by the server of the summons.

A

true.

77
Q

what is a motion?

A

a motion is an application for relief other than a pleading

78
Q

true or false: if you are filing a pleading with a relief, then it is a motion.

A

true

79
Q

what are the five kinds of motion?

A
  1. motion ex parte
  2. litigated motion
  3. motion of course
  4. special motion
  5. omnibus motion
80
Q

what is a motion ex parte?

A

this is a motion which does not require that the parties be heard and which the court may act upon without prejudicing the rights of another party.

81
Q

what is a litigated motion?

A

a motion where notice to the adverse party is necessary.

82
Q

what is a motion of course?

A

this is a motion for a certain kind of relief or remedy to which the movant is entitled as a matter of right.

83
Q

what is a special motion?

A

investigation of the facts alleged is required and the discretion of the court is involved.

84
Q

what is an omnibus motion?

A

this is a motion that combined different motions all filed at the same time either to save time or for convenience.

85
Q

difference between a pleading and a motion?

A

pleading: submit a claim or defense for an appropriate judgment
motion: apply for an order not included in the judgment

pleading: may be initiatory
motion: can never be initiatory

pleading: filed before judgment
motion: may be filed after judgment

pleading: 9 kinds of pleadings
motions: 3 motions which actually seek judgment

pleadings: must be written
motion: can be oral when made in open court

pleadings: states substantial questions
motion: relates to procedural matters

motion: not an independent remedy and cannot replace an action to enforce a legal right.

86
Q

what is the general rule on motions?

A

should be made in writing.

87
Q

exceptions to the general rule on motions?

A

a. motions made in open court; or

b. motions made in the course of a hearing or trial

88
Q

what are the contents of a motion?

A

a. statement of relief sought to be obtained

b. grounds upon which the motion is based

c. supporting affidavits and other papers

89
Q

what are the requisites for a valid motion?

A
  1. must be in writing
  2. contents
  3. hearing a litigious motion is discretionary on the court.
90
Q

is it necessary that a motion be accompanied by supporting affidavits and other papers?

A

no, unless required by the rules or necessary to prove facts alleged therein.

91
Q

true or false: notice of the hearing is required.

A

false. with respect to litigious motions, notice of hearing is not a requirement and is only discretionary upon the court.

92
Q

true or false: proof of service of the motion is required.

A

true.

93
Q

when should litigated motions be scheduled?

A

friday afternoons. if friday is a non-working day, in the afternoon of the next working day.

94
Q

what is the omnibus motion rule?

A

requires that a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

95
Q

what is a pro forma motion?

A

a pro forma motion is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings.

96
Q

true or false: a motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.

A

true. if this is not accompanied by the pleading, the court will not act on the motion.

97
Q

what are the grounds for dismissal with prejudice?

A
  1. res judicata
  2. the claim has already been paid, waived, or abandoned or extinguished
  3. claim is unenforceable under the statute of frauds
98
Q

what is the effect of the dismissal of a motion with prejudice?

A

the motion cannot be refiled but it is subject to appeal.

99
Q

what are other grounds for dismissal without prejudice?

A

a. lack of jurisdiction over the subject matter

b. improper venue

c. lack of legal capacity to sue

d. failure to state cause of action

e. failure to comply with a condition precedent

100
Q

what is the remedy in case of vague statements?

A

a motion for bill of particulars

101
Q

what is the purpose of a bill of particulars?

A

to make a detailed account or to limit the scope of the subject of the pleading and to define, clarify or particularize, and limit or circumscribe the issues in the case.

102
Q

when should a motion for bill of particulars be filed?

A

a motion for bill of particulars should be filed before responding to a pleading.

103
Q

what are the requirements for the motion for bill of particulars?

A

the motion shall point out or specify the:

a. defects complained of;
b. paragraphs wherein they are contained; and
c. details desired.

104
Q

two ways of filing a bill of particulars?

A
  1. separate pleading
  2. amended pleading
105
Q

true or false: the bill of particulars becomes part of the pleading for which it is intended.

A

true.

106
Q

what is the effect of filing of a bill of particulars?

A

the filing of a bill of particulars stops or interrupts the running period to file an answer.

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