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Civ-Pro Avena Q&A Reviewer

Civ-Pro Avena Q&A Reviewer

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Published by: cmv mendoza on Dec 31, 2011
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06/10/2013

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CIVIL PROCEDURE2
nd
Semester, AY 2004-2005Prof. V.A. AvenaANSWERS toPre-Midterm Exercise
1.Granting that the allegations in the answer re new matters (i.e., remodifications in specifications) were made in the form of a defense, thesame are deemed controverted even if no reply is filed. However, if thesenew matters (in the answer) were alleged in support of a counterclaim,then the attachment to the answer would in effect be an actionabledocument, such that its authenticity and due execution would be deemedadmitted if not denied under oath in an answer to the counterclaim. Inother words, a reply, in any event, would not be the proper pleading withwhich to controvert the actionable document and the new matters in theanswer.2.Grounds for dismissal that can be properly invoked are :a) by Mr. M and the mistress –(i) waiver, abandonment or extinguishment of liability due tocondonation by Mrs. M;(ii) failure to comply with condition precedent (i.e., earnestefforts at compromise amongmembers of the same family under the Civil Code);(iii) failure to comply with requirement re certification on non-forum shopping; andb) by the mistress – misjoinder due to different venues as ground for severance and thus dismissal insofar as she’s concerned3.Yes, the court’s ruling was proper in view of the mandatory language andnature of the pertinent sections of Rule 15 -- (i.e., sections 4, 5, 6,and 7) -- all of which together show that unless a motion is non-adversarial, i.e., cannot be acted upon by the court withoutprejudicing the adverse party, the same should be set for hearing,etc.4.a) No, the court’s orders were not valid. Where the defendant is abroad,the proper mode of service of summons is extra-territorial service,even if his whereabouts are unknown (Sahagun v. CA). Hence, theorder allowing service by publication is not applicable and not valid.

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