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LEX MAXIMUS REMEDIAL LAW EXAM Q&A

1. Where the whereabouts of the defendants are unknown, how may summons be served on
them?
As provided in Rule 14, Section 14, where the whereabouts of the defendants are unknown,
service may, by leave of court, be effected upon him by publication in a newspaper of general
circulation and in such places and for such time as the court may order.
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2. Atty. X was hired by defendant as defense counsel. Since he only had five days left to file
an answer, Atty. X sought an extension of 15 days to file an answer which was granted by
the court. In his answer, defendant interposed as affirmative defense lack of jurisdiction
over his person. Accordingly, it was not the defendant but his twin brother who actually
received the summons from the court. If you were the judge, will you sustain the
defendant. Explain.
NO. If I was the judge, I will not sustain the contention of Atty. X because he can no longer
question the jurisdiction of the court. The act of asking an extension of 15 days to file an answer
is deemed as a voluntary appearance which is tantamount to his submission to the jurisdiction of
the court. In the case of Carballo vs Encarnacion, the Supreme Court explained that as a rule, an
appearance in whatever form without expressly objecting to the jurisdiction of the court over the
person is a submission to the jurisdiction of the court.
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3. A executed a Deed of Real Estate Mortgage over his land to secure a loan in the amount of
P500, 000 he obtained from B. When A failed to pay, B filed a complaint for Judicial
foreclosure. However, no answer was filed of the complaint. Per return of the sheriff,
summons cannot be served upon A who is now working in the Middle East. If you were the
counsel of B, what would be your next move?
If I was the counsel for B, my next move would be to ask the court to carry out an extraterritorial
service of summons since A is now out of the country. In the case of Jose v. Boyon, it was
provided that for extraterritorial service of summons to be had, the following requisites must
concur: 1) the defendant is a nonresident, 2) he is not found in the Philippines and 3) the action
against him is either in rem or quasi in rem. Here, A is a non-resident who cannot be found in the
Philippines because he now works in the Middle East. Moreover, the action involves a foreclosure
of a real estate mortgage which is an action quasi in rem. Therefore, all of the requisites for an
extraterritorial service is present and allows the counsel of B to apply for the same.
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4. In the problem above, in case the property subject of the REM is sold at public auction and
the proceeds is not enough to cover the amount due, can the court impose a deficiency
judgment? Explain.

NO. The court cannot impose such judgment against B. Since B is not residing in the Philippines
and the imposition of a deficiency judgment is a personal action, extraterritorial service cannot be
had. The Supreme Court has held that extraterritorial service may only be applied when the case

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


involves an action in rem or quasi in rem. Therefore, absent such extraterritorial service, the court
cannot have jurisdiction over the person of B and the deficiency judgment cannot be imposed.
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5. X is indebted to Y for loans contracted on two different dates. The first loan amounts to
P20,000 and the second P800,000. Can Y file only one case for the two loans? Explain.
YES. Y can file on case for the two loans through the joinder of causes of action. As provided in
Rule 2, Section 5, joinder of causes of action is the assertion of as many causes of action as a
party may have against another in one pleading alone. When the causes of action accrue in
favor of the same plaintiff and against the same defendant, i.e., there is only one plaintiff and one
defendant, it is not necessary to ask whether or not the causes of actions arose out of the same
transactions or series of transactions and that there exists a question of law or fact common to all
the plaintiffs or defendants.
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6. In an ejectment suit, the defendant named in the complaint is no longer in actual
possession of the litigated lot because soon after receipt of the summons, he leased the
premises to another person. Contending he is an indispensable party to the case, the
lessee now moved for the dismissal of the case for plaintiffs failure to implead him in his
complaint. If you were the judge, will you dismiss the case? Explain.
NO. I will not dismiss the case because the failure to implead the new lessee is not fatal to the
case because he is not an indispensable party. Even though he is now the rightful possessor of
the property, the real party in interest here is the defendant who was originally named in the
complaint. The court already acquired jurisdiction over the person of the said defendant because
summons were already served even before the new lessee acquired the possession of the
subject property. Rule 3, Section 19 provides that in case of transfer of interest, the action may
be continued by or against the original party, unless the court upon motion directs the person to
whom the interest is transferred to be substituted in the action or joined with the original party.
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7. During the pre-trial defendants counsel failed to appear. Hence, plaintiffs counsel moved
for the termination of the pre-trial and to schedule the case for reception of evidence exparte. Per court records, the notice was sent to and received b that y the defendant who
admitted in open court that he failed to inform his lawyer about it. A) If you were the judge,
will you grant the plaintiffs motion? Explain. B) Will your answer in the preceding
question be the same if the defendant himself did not appear because the notice intended
for him was erroneously received by the secretary of his lawyer. Explain.
A) NO. I will not grant the plaintiffs motion. The failure of the defendants counsel to appear
during the pre-trial is not a ground to terminate the pre-trial and proceed to an ex-parte
reception of evidence as provided in Rule 18, Section 5. The said provision refers to the
failure of the defendant to appear and not the counsel.
B) NO. My answer will not be the same in that this time, I will grant the plaintiffs motion. The
failure of the defendant to appear shall be cause to allow the plaintiff to present his evidence
ex-parte as provided in Rule 18, Section 5. The non-appearance of the defendant due to the
serving of the notice to the secretary of the lawyer is not a valid cause contemplated in Rule
18, Sec. 4 which excuses the non-appearance of the defendant. The notice was properly

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


served to the counsel of the defendant because the secretary is an agent of the lawyer and
therefore service of notice to the secretary is service to the lawyer. Rule 18, Section 3
provides that, The notice of pre-trial shall be served on counsel, or on the party who has no
counsel. The counsel served with such notice is charged with the duty of notifying the party
represented by him.
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8. What is the effect if an actionable document is not specifically denied?
If an actionable document is not specifically denied, it shall be deemed admitted. Rule 8, Section
8 provides that, When an action or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the preceding Section, the genuineness
and due execution of the instrument shall be deemed admitted unless the adverse party, under
oath, specifically denies them and sets forth what he claims to be the facts.
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9. What is the general rule if a defendant fails to plead any available defense or objection in
his behalf?
The general rule is that the said available defenses or objections shall be considered waived. The
Omnibus motion rule requires that every motion that attacks a pleading, judgment, order or
proceeding shall include all grounds then available and all objections not so included shall be
deemed waived (Rule 15, Sectioin 8).
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10. A filed a complaint against B. It appears from the allegation in the complaint that the court
has no jurisdiction. The judge dismissed the case motu propio. A motion for
reconsideration was filed on the ground that no motion to dismiss was filed and therefore
the dismissal is a patent nullity. Resolve the motion.
The motion for reconsideration should be denied. A motion to dismiss is not necessary in the case
at bar because the dismissal of the case is based on lack of jurisdiction. The judge may dismiss
the case motu propio as provided in Rule 9, Section 1.
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11. The defendant filed his answer within the 30th day following receipt of the summons. It was
then that the court became aware of the defendants failure to file an answer on time.
Hence, the judge immediately issued an order declaring the defendant in default.
Defendant filed a motion to set aside the said default order. Resolve the motion.
I will grant the motion to set aside the order of default if the defendant can show that first, his
failure to answer was due to fraud, accident, mistake or excusable negligence and two, he has a
meritorious defense. Rule 9, Section 3 provides that a party declared in default may at any time
after notice thereof and before judgment file a motion under oath to set aside the order of
default The order of default may be set aside on such terms and conditions as the judge may
impose in the interest of justice.
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12. Defendant died but no order of substitution was issued by the court. Defendants heirs,
nevertheless, participated in the proceedings. After judgment was rendered against them,

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


the heirs sought to annul the decision for lack of jurisdiction on their person since no
order of substitution was issued. What is the issue in the given fact? Resolve the issue.
The issue in the given fact is whether or not a formal substitution is necessary for the court to
acquire jurisdiction over the heirs of the defendant. The answer to this is in the negative. In the
case of Vda. De Salazar vs CA, the SC opined that the formal substitution is not necessary when
the heirs themselves voluntarily appeared in the action, participated therein and presented
evidence in defense of deceased defendant. In the case of Cordova vs Tornilla, it was stated that
in the absence of a formal substitution, the court can acquire jurisdiction over the person of the
decedents representative if he voluntarily submits himself to said jurisdiction.
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13. What is to be considered as the date of filing if the pleading was mailed through private
courier? Is the rule applicable in the service and filing of Judicial Affidavits?
If a private carrier is availed of by the party, the date of actual receipt by the court of such
pleading and not the date of delivery to the private carrier, is deemed to be the date of the filing of
the pleading (Benguet Electric Cooperative vs NLRC). This rule does not apply to service and
filing of Judicial Affidavits because here, the period for filing shall not exceed five days. The
Judicial Affidavit Rule provides in Section 2 that, The parties shall file with the court and serve on
the adverse party, personally or by licensed courier service not later than five days before pre-trial
or preliminary conference or the scheduled hearing with respect to motions and incidents.
(NOTE: I am not very sure about this one on JA, please check na lang pohz)
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14. In his complaint, plaintiff prays for reconveyance of title to and or possession of real
properties it assigned to Defendant Corporation. Both plaintiff and defendant concede that
the case does not involve an intra-corporate controversy over which the Special
Commercial Court to where the case was filed has jurisdiction. Hence the judge ordered
re-raffling of the case to the regular court. Is the judge correct?
NO. The judge is not correct. The order to re-raffle the case to the regular court should not be
based on the agreement of the parties. The concession of the plaintiff and defendant that their
case does not involve an intra-corporate controversy does not divest the Special Commercial
Court of jurisdiction. Jurisdiction cannot be the subject of an agreement or compromise because it
is vested by law. Moreover, it is the court and not the parties that decides whether an issue is one
that is intra-corporate or not. The Supreme Court has used two tests in order to determine
whether a dispute constitutes a intra-corporate controversy namely, the relationship test and the
nature of the controversy test.
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15. X filed a complaint for sum of money in the amount of P300,000. It stated in the complaint
that the total indebtedness was P800,000 but P500,000 has been paid. Later, plaintiff
amended his complaint stating that the entire amount of P800,000 has not been paid. What
is the effect of the filing of the amended complaint?
The effect of the filing of the amended complaint is to divest the MTC of jurisdiction over the case.
Since the original complaint demands for P300,000 the court which has jurisdiction over this
subject matter is the MTC. However, the amendment of the complaint increased the demand of

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


money to P800,000. Rule 10, Section 8 provides that the amended pleading supersedes the
pleading that it amends. Therefore, the new cause of action is the collection of P800,000 which is
under the jurisdiction of the RTC. Here, the case should be dismissed on the ground of lack of
jurisdiction.
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16. A filed a complaint against B. After service of summons, A filed a motion for leave to
amend complaint. A) If the motion is granted, should the court issue another summons?
B) If an answer has been filed before the filing of the amended complaint, can the
defendant be declared in default if he fails to answer to the amended complaint?
A) The court should issue another summon if the amendment adds a new cause of action,
otherwise an issuance of another summons is not necessary.
B) NO. Since the amendment in the case at bar is not a matter of right, an answer to the original
pleading shall be deemed an answer to the amended pleading.
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17. Is it mandatory for the plaintiff to file his reply? If no, explain. If yes, is there an exception?
NO. As a rule, the filing of a reply to the answer is not mandatory and will not have an adverse
effect on the plaintiff. Under Rule 6, Section 10, if a party does not file such reply, all the new
matters alleged in the answer are deemed controverted or denied. No admission follows from the
failure to file a reply. When the defense in the answer is based upon a written instrument or
document, said instrument is considered an actionable document and the filing of a reply is
advisable if the plaintiff desires to deny specifically the genuineness and due execution of the
actionable document.
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18. A) What is the effect if defendant fails to plead his counterclaims to the plaintiff? B) If such
counterclaims were not yet existing at the time he filed his answer but the same existed
before rendition of judgment, can he file an amended answer to include such
counterclaims?
A) A compulsory counter-claim not initially set up because of the pleaders oversight,
inadvertence, excusable neglect shall be barred. A permissive counterclaim however will not
be barred.
B) NO. The remedy should be the filing of a supplemental pleading and not an amendment. A
counterclaim or a cross-claim which either matured or was acquired by a party after serving
his pleading may, with the permission of the court, be presented as a counterclaim or a crossclaim by supplemental pleading before judgment.
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19. A) What is the effect of filing a motion for bill of particulars? B) What is the effect of noncompliance of an order granting a motion for bill of particulars? C) What should the
defendant do if his motion for bill of particulars is denied?
A) If the motion is granted, in whole or in part, the movant can wait until the bill of particulars is
served on him by the opposing party and then he will have such balance of the reglementary

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


period within which to file his responsive pleading and if his motion is denied, he will still have
such balance of the reglementary period to file his responsive pleading, counted from service
of the order denying his motion. In either case, he shall have not less than 5 days to file his
responsive pleading.
B) If the order is not obeyed or in case of insufficient compliance therewith, the court may order
the striking out of the pleading or the portion thereof to which the order is directed or make
such order as it may deem just.
If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise
ordered by the court.
If defendant fails to obey; his answer be stricken off and his counterclaim dismissed, and he
will be declared in default upon motion of the plaintiff.
C) He should file an answer. As provided in Rule 12, section 5, after notice of denial of his
motion, the party may file his responsive pleading within the period to which has entitled at
the time of the filing of his motion, which shall not be less than five day.
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20. A) What are the different modes in the service of pleadings? B) How is substituted service
of pleadings, motions and resolutions made?
A) The different modes in the service of pleadings are as follows: personal service, service by
mail and substituted service.
B) If personal service or service by mail cannot be made, the office and place of residence of the
party or his counsel being unknown, service may be made by delivering the copy to the clerk
of court with proof of failure of both personal service and service by mail.

21. A) How may summons be served? B) How may substituted service of summons be done?
C) Under what circumstances that extraterritorial service of summons may be resorted to?
a) Summons may be served through the following: personal service, substituted service, summons
by publication and extraterritorial service of summons
b) Substituted service of summons may be done by leaving copies of the summons at the
defendants residence with some person of suitable age and discretion then residing therein, or
by leaving copies at defendants office or regular place of business with some competent person
in charge thereof.
c) Extraterritorial service may be done when the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of
which is property within the Philippines, in which the defendant has or claims a lien or interest
actual or contingent or in which the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein or the property of the defendant has been attached within the
Philippines.
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22. A) Within what period should a complaint-in-intervention be filed? B) What will happen to
the complaint-in-intervention of the original/main case is dismissed? C) May a transferee

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


pendent lite file a motion for intervention in order to protect his right over the property
subject of the litigation? Explain your answer.
A) The motion to intervene must be filed at any time before rendition of judgment by the trial
court. After rendition of judgment, a motion to intervene is barred, even if the judgment itself
recognizes the right of the movant.
B) The complaint-in-intervention will also be dismissed. Intervention is never an independent
proceeding but ancillary and supplemental to an existing litigation and in subordination to the
main proceeding (Saw vs Court of Appeals)
C) YES. According to Rule 3, Section 19, In case of any transfer of interest, the action may be
continued by or against the original party, unless the court upon motion directs the person to
whom the interest is transferred to be substituted in the action or joined with the original
party.
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23. In a case, the main witness for the prosecution is a prisoner who was convicted of rape
with homicide and who is now serving his sentence at the Davao Penal Farm. If you are
the prosecutor, what should you do in order to obtain the appearance of that prisoner
witness?
If I was the prosecutor, I would apply for a subpoena for the said witness and ask the Supreme
Court to authorize the same. As provided in Rule 21, Section 2, No prisoner sentenced to death,
reclusion perpetua, or life imprisonment and who is confined in any penal institution for
appearance or attendance in any court unless authorized by Supreme Court.
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24. Discuss the sanctions for disobeying a subpoena.
The court which issued the subpoena may issue a WARRANT FOR THE ARREST OF WITNESS
and make him pay the cost of such warrant and seizure, if the court should determine that his
disobedience was willful and without just cause. The refusal to obey a subpoena without
adequate cause shall be deemed CONTEMPT of the court issuing it (Rule 21, Sec. 9). This
disobedience would constitute as an INDIRECT contempt under Rule 71, Section 3.
25. What is meant by a viatory right of a witness? Does it apply to criminal cases?
Viaotory right of a witness is the right to be exempted from being compelled to attend a
hearing/trial when the witness resides more than 100 kilometers from his residence to the place
where he is to testify by the ordinary course of travel (Rule 21, Section 10). This only applies to
civil cases and not criminal cases (Genorga vs Quitan).

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


1. Define jurisdiction.
Jurisdiction is the power and authority of the court to hear, try, and decide cases and carry its
judgments into effect.
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2. What are the requisites for the valid exercise of jurisdiction?
The requisites for the valid exercise of jurisdiction are as follows: a) That it must have jurisdiction
over the persons of the parties, b) that it must have jurisdiction over the subject matter of the
controversy, c) that it must have jurisdiction over the res, d) that it must have jurisdiction over the
issues as raised in the pleadings of their agreement in a pre-trial order or those tried by the
implied consent of the parties.
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3. How may the court acquire jurisdiction over the person of a) the plaintiff? b) the
defendant?
Jurisdiction over the a) plaintiff is acquired the moment he files his complaint, petition or initiatory
pleading and with the b) defendant, it is acquired either by his voluntary appearance in court and
his submission to its authority or by service of summons or other coercive process upon him.
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4. What determines jurisdiction of the court over the subject matter of the action?
Jurisdiction over the subject matter is determined by the allegations made in the complaint.
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5. What confers jurisdiction of the court?
It is conferred by law and not by the voluntary act or agreement of the parties.
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6. What are the exceptions to the general rule that lack of jurisdiction over the subject matter
of an action cannot be waived by the parties and may be raised at any stage of the
proceedings?
Estoppel by laches (Tijam vs Sibonghanoy) and estoppel in pais where the defendant actively
participated in all stages of the proceedings before the trial court and invoked its authority by
asking for an affirmative relief (Soliven vs Fastforms).
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7. How may the court acquire jurisdiction over the res?
It is acquired by either the seizure of the property under legal process or 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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8. Distinguish jurisdiction from exercise of jurisdiction. Which one will result in error of
jurisdiction and which one will result in error of judgment? Which one is correctible by
appeal and which one is correctible by certiorari?
Jurisdiction pertains to the authority to hear and decide case whereas the exercise of jurisdiction
is any act of the court pursuant to such authority including the decision and its consequences.
The former results to error of jurisdiction while the latter results to error of judgment. The former is
correctible by certiorari while the latter by appeal.

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


9. Distinguish general jurisdiction from limited jurisdiction
The former is exercised over all kinds of cases except those withheld from the plenary powers of
the court. The latter is exercised over and extends only to particular or specified cases.
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10. Distinguish original jurisdiction from appellate jurisdiction
The former is exercised by the courts in the first instance. The latter is exercised over and
extends only to particular or specified cases
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11. Distinguish exclusive jurisdiction from concurrent jurisdiction
The former is confined to a particular court to the exclusion of other courts. The latter pertains to
different courts over the same subject matter at the same time and place. When two or more
courts have concurrent jurisdiction over a case, the court which has first validly acquired
jurisdiction takes it away from the others
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12. State the policy of judicial hierarchy
This policy means that a higher court will not entertain direct resort to it unless the redress
desired cannot be obtained in the proper courts.
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13. The SC, CA and the RTC have concurrent original jurisdiction to issue writs of Certiorari,
Prohibition and Mandamus, does it mean to say that litigants have unrestrained freedom
of choice of the court to which the application may be filed? State your reason/s
While it is true that the SC, CA, and the RTC have concurrent original jurisdiction to issue writs of
Certiorari, Prohibition and Mandamus, such concurrence does not accord litigants unrestrained
freedom of choice of the court to which the application for the writ may be directed. The
application should be filed with the court of lower level unless the importance of the issue
involved deserved the action of the court of the higher level.
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14. State the doctrine of judicial stability or non-interference and its exception
The general rule is that no court has the authority to interfere by injunction with the judgment of
another court of coordinate jurisdiction or to pass upon and much less declare as unjust a
judgment of another court (Industrial Enterprise vs CA). The doctrine of judicial stability does not
apply where a third party claimant is involved (Santos vs Bayhon).
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15. State the doctrine of adherence to jurisdiction. Give the exceptions.
Once jurisdiction has been acquired, the court retains jurisdiction until the final termination of the
case. The law enacted during the pendency of a case which transfers jurisdiction to another court
does not affect cases prior to its enactment. The exceptions are first, when the new law expressly
provides for a retroactive application and second, when a change of jurisdiction is curative in
character.
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16. State the doctrine of Primary Jurisdiction
Under this doctrine, courts will not resolve a controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially where the question demands the exercise of

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sound administrative discretion requiring the special knowledge and experience of said tribunal in
determining technical and intricate matters of fact (Villaflor vs CA).
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17. State the doctrine of ancillary jurisdiction. Explain by example.
This involves the inherent and implied powers of the court to determine issues incidental to the
exercise of its primary jurisdiction. Examples of such would be to determine the hours at which
the witnesses and lawyer may be heard, direct the disposition of money deposited in court in the
course of the proceedings, appoint a receiver and grant an injunction, attachment or garnishment.
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18. In his complaint, plaintiff prays for reconveyance of title to and or possession of real
properties it assigned to Defendant Corporation. Both plaintiff and defendant concede that
the case does not involve an intra-corporate controversy over which the Special
Commercial Court to where the case was filed has jurisdiction. Hence the judge ordered
re-raffling of the case to the regular court. Is the judge correct?
NO. The judge is not correct. The order to re-raffle the case to the regular court should not be
based on the agreement of the parties. The concession of the plaintiff and defendant that their
case does not involve an intra-corporate controversy does not divest the Special Commercial
Court of jurisdiction. Jurisdiction cannot be the subject of an agreement or compromise because it
is vested by law. Moreover, it is the court and not the parties that decides whether an issue is one
that is intra-corporate or not. The Supreme Court has used two tests in order to determine
whether a dispute constitutes a intra-corporate controversy namely, the relationship test and the
nature of the controversy test.
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19. Plaintiff lessor of a commercial building filed a complaint for Collection of Sum of Moey
with the RTC of Baguio. Substantially, the complaint alleged among others that the
defendant has fialed to pay the rentals for the leased premises, the overdue account now
amounting to nine hundred thousand and the plaintiff made a written demand upon
defendant to pay overdue rental and to vacate the premises. Pointing out the said
allegations, defendant filed a motion to dismiss on the ground that the RTC has no
jurisdiction over the subject matter on the ground that the allegations therein clearly
indicate that the action is one for ejectment (unlawful detainer), an action under the
exclusive original jurisdiction of the MTC. The RTC Judge denied the motion to dismiss. Is
the judge correct?
NO. The judge is not correct because the RTC does not have jurisdiction over the case. While the
complaint is captioned as a collection of sum of money with damages, the allegations therein
show that the action involved is one for ejectment. In Herrera, et al. v. Bollos the SC emphasized
the basic rule that jurisdiction of the court over the subject matter of the action is determined by
the allegations of the complaint at the time of its filing, irrespective of whether or not the plaintiff is
entitled to recover upon all or some of the claims asserted therein. What determines the
jurisdiction of the court is the nature of the action pleaded as appearing from the allegations in the
complaint. The averments therein and the character of the relief sought are the ones to be
consulted.
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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


20. Is the filing of the Motion to Lift Order of Default considered a voluntary appearance that
would vest the court jurisdiction over the person of the defendant?
NO if the said motion is that of a SPECIAL APPEARANCE. The respondent must allege that their
filing thereof is a special appearance for the purpose only to question the jurisdiction of the court
over the person of the defendant. In the case of Philippine Commercial International Bank v.
Spouses Wilson Dy Hong Pi and Lolita Dy, it was made clear that a) Special appearance
operates as an exception to the general rule on voluntary appearance; b) Accordingly, objections
to the jurisdiction of the court over the person of the defendant must be explicitly made, i.e., set
forth in an unequivocal manner; and c) Failure to do so constitutes voluntary submission to the
jurisdiction of the court, especially in instances where a pleading or motion seeking affirmative
relief is filed and submitted to the court for resolution.

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LEX MAXIMUS REMEDIAL LAW EXAM Q&A


1. When may the plaintiff amend his complaint as a matter of right?
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 days after it is served.
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2. When a complaint is amended, is there a need to issue new summons?
YES when a new defendant is impleaded, summons must be served upon him so that the court
may acquire jurisdiction over his person because, logically, the new defendant cannot be deemed
to have already appeared by virtue of summons under the original complaint in which he was not
yet a party.
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3. Plaintiffs, as lessors of a property, filed an action for the rescission of the contract for nonpayment of rents. While the case is pending, the buildings leased were razed by fire. May
the plaintiff file an amended complaint to include recovery of damages for the burned
building? If not, what should he file instead?
NO he cannot file an amended complaint because the facts which the damages are to be based
on was not yet existing at the time the original complaint was made or the action was
commenced. What he should instead file is a supplemental pleading because this refers to facts
arising after the filing of the pleading and sets forth transactions, occurrences which have
happened since the date of the pleading sought to be supplemented (Superclean Services vs
CA). Here, the subsequent damage of the building brought about by fire is an incident which
occurred after the filing of the complaint. Therefore, adding such allegation will help bolster the
relief sought by the plaintiff in his action for rescission of the contract for non-payment of rents.
The law provides that rescission also gives the plaintiff the right to recover the damages
incidental thereto.
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4. A filed a complaint against B. After answer was filed by B, A moved for leave to amend the
complaint which was granted by the court. B did not file his answer to the amended
complaint, hence A moved for Bs default. If you were the judge, will you grant the motion?
Explain.
NO. I will not grant the motion of A to declare B in default. If the amendment is NOT a matter of
right, an answer to the original pleading shall be deemed an answer to the amended pleading.
Here, B already filed an answer to the original complaint and will therefore be considered as his
answer to the amended complaint. He is not in default.
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5. If a foreign private corporation is sued and served with summons thru a government
office, what is the time within which it must file an answer?
The period is 30 days after the receipt of summons by the foreign juridical entity.
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6. A) What is a motion for bill of particulars? B) What is the effect of its filing? C) What is the
effect of non-compliance with the order to file bill of particulars?
A) A bill of particulars is a definite statement of any matter which is not averred with sufficient
definiteness or particularity in a pleading so as to enable the opposing party to properly
prepare his responsive pleading. B) A bill of particulars becomes a part of the pleading for
which it is intended. Its effect is to stay the period for the filing of responsive pleadings. After
service of the bill of particulars or after notice of denial of his motion, the movant may file his
responsive pleading within the period to which he was entitled at the time of filing his motion,

Prepared by: Bernice Piol and Erick Cabuslay

LEX MAXIMUS REMEDIAL LAW EXAM Q&A


which shall not be less than 5 days in any event. C) The court may order the striking out of
the pleading or the portions thereof to which the order was directed or make such other order
as it deems just. For instance a court may dismiss the plaintiffs complaint if he fails to comply
with an order requiring the filing of a bill of particulars.
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7. A) How are pleadings filed? B) How are pleadings served? C) How is service made if a
party is represented by counsel?
A) Filing of pleadings is the act of presenting the same to the clerk of court. B) This shall be
made either personally or by mail (Rule 13, Section 5). C) The notice must be given to the
counsel and not the party. When a party is represented by more than one counsel of record,
service of notice on any of the latter is sufficient. Notice iven to a party who is duly
represented by counsel is a nullity, unless service thereof on the party himself was ordered by
the court.
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8. Differentiate substituted service of pleadings and substituted service of summons?
Substituted service of pleadings may be made by delivering the copy to the clerk of court with
proof of failure of both personal service and service by mail (Rule 13, Section 8). On the other
hand, substituted service of summons may be had by leaving copies of the summons at the
defendants residence with some person of suitable age and discretion then residing therein, or
by leaving the copies at the defendants office or regular place of business with some competent
person in charge thereof (Rule 14, Section 7).
9. A decision was rendered against ABC Corp. It was served upon the security guard of the
building where the corporation holds office. Was there proper service?
NO. There was no proper service. Rule 13, section 9 provides that Judgments, final orders or
resolutions shall be served either personally or by registered mail. With regard to corporations,
service upon the following persons constitute as a personal service: president, managing
partner, general manager, corporate secretary treasurer or in-house counsel. A security guard is
not part of this enumeration.
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10. What is the date of service and filing if the pleading is done thru a) registered mail or by b)
ordinary mail?
a) If done through registered mail, the date of service and filing of the pleading shall be the date
of deposit of the pleading in the post office.
b) If through ordinary mail, the date of actual receipt by the court o such pleading and not the
date of delivery to the private carrier.
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11. When is service completed if done by personal service? By ordinary mail? By registered
mail?
Personal service is deemed completed upon actual delivery Service by ordinary mail is complete
upon the expiration of ten days after mailing, unless the court otherwise provides. Service by
registered mail is complete upon actual receipt by the addressee, or after five days from the date
he received the first notice of the postmaster, whichever is earlier.
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Prepared by: Bernice Piol and Erick Cabuslay

LEX MAXIMUS REMEDIAL LAW EXAM Q&A


12. What is Notice of Lis Pendens? What is the effect of its recording?
It is the notice of the pendency of a real action which the plaintiff of the defendant may record in
the office of the registry of deeds where the property subject of the action is situated. The effect of
its recording is that is serves as a constructive notice to those not parties to the case that the real
property is the subject of a pending litigation.
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13. Within what period should the answer be filed?
Defendant shall file his answer to the complaint 15 days after service of summons, unless a
different period is fixed by the court (Rule 11, Section 1).
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14. If no answer is filed, what should the plaintiff do?
If no answer is filed within the time allowed therefor, the claiming party must file a motion to
declare the defending party in default (Sablas vs. Sablas).
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15. What is a verification? What is/are the consequences/effects of plaintiffs failure to attach
verification in his complaint?
A verification is an affidavit that the affiant has read the pleading and that the allegations therein
are true and correct of his personal knowledge or based on authentic records. A pleading required
to be verified which is not verified or lacks proper verification, shall be treated as an unsigned
pleading and thus does not have any legal effect. However, the court may in its discretion allow
such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and
not intended for delay.
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16. What is certification against forum shopping?
It is a certification under oath by the plaintiff or principal party in a complaint or other initiatory
pleading that a) he has not theretofore commenced any action or filed any claim involving the
same issues in any court, tribunal, or quasi-judicial agency, and to the best of his knowledge, no
such other action or claim is pending therein; b) if there is such other pending action or claim, a
complete statement of the present status thereof and c) if he should thereafter learn that the
same or similar action or claim has been filed or is pending, he shall report that fact within five
days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
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17. What is/are the effects/consequences of filing a complaint without certification against
forum shopping?
It shall be a cause for dismissal of the complaint without prejudice, unless otherwise provided.
The failure to comply with the requirements in Rule 7, Section 5 shall not be curable by mere
amendment of the complaint or other initiatory pleading.
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18. What is the purpose of service of summons?
The object of the summons is to notify the defendant that he has been sued.

Prepared by: Bernice Piol and Erick Cabuslay

LEX MAXIMUS REMEDIAL LAW EXAM Q&A


_________
19. What are the modes by which summons may be served?
They are as follows: personal service of summons, substituted service of summons, summons by
publication, and extraterritorial service of summons.
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20. How may summons be served on a defendant whose address or identity is unknown?
As provided in Rule 14, Section 14, where the whereabouts of the defendants are unknown,
service may, by leave of court, be effected upon him by publication in a newspaper of general
circulation and in such places and for such time as the court may order.
21. How may summons be served on an entity without juridical personality?
As provided in Rule 14, Section 8, when persons associated in an entity without juridical
personality are sued under the name by which they are generally or commonly known, service
may be effected upon all the defendants by serving upon any one of them, or upon the person in
charge of the office or place of business maintained in such name. But such service shall not bind
individually any person whose connection with the entity has, upon due notice, been severed
before the action was brought.
22. How may summons be served on a private domestic corporation?
As provided in Rule 14, section 11, when the defendant is a corporation, partnership or
association organized under the laws of the Philippines without a juridical personality, service
may be made on the president, managing partner, general manager, corporate secretary,
treasurer or in-house counsel.
23. How may summons be served on a private foreign corporation?
As provided in Rule 14, Section 12, when the defendant is a foreign private juridical entity which
has transacted business in the Philippines, service may be made on its resident agent designated
in accordance with law for that purpose or if there be no such agent, on the government official
designated by law to that effect, or on any of its officers or agents within the Philippines.
24. After service of summons on the defendant, the latter filed a motion or extension of time to
file an answer which was denied by the court for being unmeritorious. Thereafter, the court
declared the defendant in default. Defendant then questioned the courts jurisdiction over
his person for alleged improper service of summons.
The defendant is already estopped from questioning the jurisdiction of the court. The act of asking
an extension to file an answer is deemed as a voluntary appearance which is tantamount to his
submission to the jurisdiction of the court. In the case of Carballo vs Encarnacion, the Supreme
Court explained that as a rule, an appearance in whatever form without expressly objecting to the
jurisdiction of the court over the person is a submission to the jurisdiction of the court. His act of
asking an affirmative relief constitutes a voluntary appearance as contemplated in Rule 14,
section 20.
25. ABC are business partners. On Jan. 1, 2001, B severed his business relations with A and
C. A case involving the business was filed on January 30, 2001 and summons was served
at the business address. Is the service of summons binding on B?
NO assuming arguendo that the business partnership is not duly registered with the SEC and
thus without juridical personality. The service of summons is not binding to B because he already
severed his business ties with A and C before the case was filed against ABC. Under Rule 14,

Prepared by: Bernice Piol and Erick Cabuslay

LEX MAXIMUS REMEDIAL LAW EXAM Q&A


Section 8, the service of summons shall not bind individually any person whose connection with
the entity has, upon due notice, been severed before the action was brought.
26. How is jurisdiction acquired in actions in rem and quasi in rem?
Jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the
court provided that the court acquires jurisdiction over the res. Jurisdiction over the res is
acquired either a) by the seizure of the property under legal process, whereby it is brought into
actual custody of the law and b) as a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective.
27. What are the requirements of service of summons by publication?
The following are the requirements for the validity of service of summons by publication:
a) It should only be made in the instances covered by Rule 14 sections 14, 15 and 16
b) There must be an application for leave to effect service of summons by publication which
shall be through a motion in writing, supported by the affidavit of the plaintiff or some person
on his behalf, setting forth the grounds for the application.
c) Leave of court must be granted by way of the order for publication.
d) There should be a deposit of a copy of the summons and the order for publication in the post
office, postage prepaid, directed to defendant by registered mail to his last known address.
e) Publication should be made in a newspaper of general circulation in such places and for such
time as the court may order
f) There should be proof of service by publication by way of affidavits stating the mattes set for
in Rule 14, section 19.
28. In an action for annulment of extrajudicial partition, summons upon the defendants who
are abroad were sent thru registered mail. Is the service of summons valid?
YES. The service of summons thru registered mail is valid as long as such registered mail
is issued as an extraterritorial service of summons. The law provides that in extraterritorial
services, the court may order other manner of service which it may deem sufficient and
this may include registered mail, telefax or even email. Extraterritorial service may be had
in this case because first, the defendant is abroad and second, the issue of partition
involves an action quasi in rem.
29. In an action for injunction can the summons be served by publication?
YES. As a general rule, summons by publication is available only in actions in rem or quasi in
rem. The exception to this is when first, the identity or whereabouts of the defendant are unknown
and second, when the defendant is a resident temporarily out of the Philippines. Therefore, if the
injunction involves any of the two circumstances mentioned, then summons by publication may
be had.
30. If defendant files a motion to dismiss on two grounds, namely: prescription and lack of
jurisdiction over his person for improper service of summons, was there voluntary
appearance?
NO. There is no voluntary appearance even if there were two grounds stated in the motion to
dismiss. Rule 14, Section 20 provides that the inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary
appearance. In the case of La Naval Drug Corporation vs CA, the SC held that the inclusion of
more than ground should not be construed as a waiver of the defense of lack of jurisdiction over
the person of the defendant.

Prepared by: Bernice Piol and Erick Cabuslay