RULE 15 MOTIONS Flashcards
Define a motion.
A motion is an application for relief other than by a pleading.
How do you relate motion to a pleading?
In a motion, the party is asking the court for a favor other than what is contained in the pleading. Usually, the main relief is prayed for in the pleading, like “Judgment be rendered in favor of the plaintiff,” or, “Judgment be dismissed.” That is what you pray in your complaint or in your answer. A pleading however is directly related to the cause of action or the defense. But a motion prays for something else. In a motion, you are asking for another relief other than the main cause of action or the main defense.
There are three (3) well known EXCEPTIONS to this. Meaning you are praying, by way of a motion, for a relief which normally should be prayed for in a pleading such as a motion is praying for a judgment already. The exceptions are:
1.) Motion for Judgment to the Demurrer to Evidence (Rule 33);
2.) Motion for Judgment on the Pleadings (Rule 34); and
3.) Motion for Summary Judgment (Rule 35).
What are the requisites of a valid motion?
Sec. 2. Motions must be in writing. All motions shall be in writing except those made in open court or in the course of a hearing or trial.
Is it necessary that a motion be accompanied supporting affidavits and other papers?
No, unless required by the Rules or necessary to prove facts alleged therein.
Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least how many days?
three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.
What is the effect if a party files a motion serving upon the adverse party the motion in less than three days
The court may refuse to take action on a motion which does not comply with the rule requiring a three-day notice to the adverse party, “unless the court for good cause sets the hearing on shorter notice.”
Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. Now, what happens if a motion does not contain a notice of hearing?
A motion without notice of hearing is nothing but a piece of paper filed in court, which should be disregarded and ignored. (Prado vs. Veridiano II, (204 SCRA 651 [1991])
To whom should the notice of hearing be addressed?
It is addressed to all parties concerned.
What is the schedule of a motion day?
Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is anon-working day, in the afternoon of the next working day.
Define omnibus motion.
An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which shall include all objections then available and objections not so included shall not deemed waived. (Section 8; Ins. Co. of North America vs. Delgado Brokerage, L-22974,Oct. 28, 1966)
What are the grounds not deemed waived even if not raised in a motion to dismiss or answer. (Exceptions to the omnibus motion rule)?
1.) Lack of jurisdiction over the subject matter;
2.) Litis pendentia;
3.) Res adjudicata; and
4.) Prescription
True or false: when you file a motion for leave, the pleading to be admitted can be excluded in your motion.
False. Sec. 9. Motion for leave. A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.
