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Bersamin Civpro Lecture Reviewer
Bersamin Civpro Lecture Reviewer
indispensable party- no option but to join him. If he is an unwilling party make him the
defendant. Without them there can be no final determination of the case.
Exemptions to joining indispensable parties:
1. class suit
2. co-owners under the Civil Code of property
3. when all representatives of a judicial person are already included, non-joining of the juridical
person is not fatal to the cause of action.
if an indispensable party is not joined, the judgment rendered is void since it did not solve
anything
Necessary parties- need to be joined to have complete relief. If not joined, the judgment is valid
without prejudicing such party not joined.
Alternative allegations- essential allegations, if not pleaded, may be denied. Allegations must be
carefully studied. Mistake in allegation can be amended in a motion to amend pleading.
Motion to dismiss: only affirmative defense is allowed..
all defenses, objections must be alleged in a motion to dismiss pursuant to the omnibus motion
rule.
After filing of complaint, defendant may file;
1. motion to dismiss
2. motion for bill of particulars
3. answer
answer must be filed if motion to dismiss is denied.
Objections not raised, except lack of jurisdiction, lis dispendencia, res judicate and statute of
limitation, are deemed waived.
If proven by evidence, a motion to dismiss is not needed. The court may dismiss the case.
Default:
Failure of the defending party to file an answer if he is required to and the court orders him to
upon motion.
If there is no motion for default, an answer may be admitted upon motion.
Defendant in default losses his stand in the case. He cannot anymore participate in the trial.
Failure to answer a permissive counter claim does not make the plaintiff lose his standing in the
case.
Where there is no default:
1. marriage cases
2. compulsory counterclaim
3. special civil action for expropriation
remedy: default may be lifted upon motion that failure to answer is due to FAME and the
defendant has a meritorious defense. There must be no judgment yet otherwise a different set of
remedies must be resorted to.
If the defendant is in default, award to the plaintiff cannot be more than what is prayed for. The
defendant may have opted to be in default since he doesnt want to pay more than what is prayed
for.
Unliquidated damages cannot also be awarded.
There is no implied admission in cases of default since there is no answer. It would be different
if there is an answer and specific denial is wanting, there is implied admission.
Note: If F.A.M.E. is alleged, it must be particularly stated (sec 5 Rule and must be under oath
since what is submitted is an affidavit of merit.
Counter-claims:
Permissive- may be alleged in a separate case
Compulsory- must be alleged in the same action or else it will be deemed waived, except;
1. where the amount of counterclaim is above or below the jurisdiction of the court, provided: an
counterclaim lower than the jurisdiction of the RTC, it shall be considered compulsory
2. if the counter claim involves in its adjudication the presence in the action of a party which the
court cannot acquire jurisdiction.
Pre trial brief Vanything placed in the pre trial brief is binding to the client and is deemed as an
admission.
witness indicated must be available in the trial date.
One-day examination rule V finishing of presentation on the day of presentation of witness.
Failure to furnish a pre trial brief is similar to having no pre trial at all.
Everything that happens in a pre trial conference is recorded.
If the court, after the pre trial, that issues still exists, must hold the trial and have the pre trial
brief issued.
Pre trial order V indicates the issues to be resolved. Essential to a trial.
- controls the subsequent course of the action and limits the issues to be tried.
omission of an issue in the pre trial order may still be proved (sec5 Rule 30) if the court allows it
for special reasons. If denied, an amendment may be sought after to the pleadings (sec 5 Rule 10)
modes if discoveries
mandatory discovery- sec 6 Rule 25 V written interrogatories is needed to compel an adverse
party to testify in open court or give deposition pending appeal.
Optional- all other modes of discovery are optional.
Discovery is permitted if the jurisdiction over the person of the defendant is acquired.
If answer is not yet filed, leave of court is needed to conduct discovery. But if answer is already
filed and served, just do it.
Limitation of discovery
1. not privileged
2. relevant to the issues.
Discovery cannot be unrestricted. If there is still no answer, the issues have not yet been
defined and the courts must set the parameters for discovery
Admissibility- quality of a fact to be admitted in a judicial proceeding.
Relevancy V scope of examination
Competency V no law or rule excludes such fact
Deposition - Should not take place of a testimony. By nature, hearsay. The judge has no opportunity
to observe the giving of deposition.
- generally not admissible in evidence except as mentioned in sec 4 Rule 23
Subpoena
V issued only when the witness is not willing to appear in court.
V Not effective to bring out a prisoner out of court. If prisoner is convicted with a penalty of death,
life or reclusion perpetua, SC approval is needed to take him to court. If denied and his testimony is
indispensable, the testimony may be taken in the prison. Same rule is there is no conviction yet but
possible penalties are the same.
V If not yet convicted but detained, the approval of the court handling the criminal case is needed.
disobedience with the order of subpoena will be sanctioned, depending on the circumstances.
If the person being subpoenaed is living more than 100 km from the courthouse or when
payment for production of documents are not yet tendered, he is not bound to obey the subpoena
Subpoena may be ad testificandum, for testimonies, or duces tecum for documents
Remedy from subpoena:
quashing of the subpoena- if oppressive, or seeks privileged information in cases of ad
testificandum. Or in cases of duces tecum, when no payment is tendered, production is oppressive
or production is unnecessary.
Rule 31
Consolidation
V several cases with commonality in fact and in law
V there are several causes of action but has commonality of fact or law
V to be filed in the Supreme Court
3 ways to consolidate:
1. merger- all or most cases will be brought to one judge. All of the cases will maintain its own
name.
2. recasting method V several cases will be recast to one surviving case. The surviving case will
depend on the agreement and all will have part in the surviving case
3. test case method- several plaintiff with one defendant. The weakest plaintiff case will be
determined and if it will win, all other cases will also win. If test case loses, the others will be
tried.
consolidation is regularly done. Criminal cases may be consolidated with civil cases.
Severance/ separate trials
one case which involves several parties/claims
when properly joined cases and one case is delayed, such case may be separated in trial
there is still one case but the trial is separated.
Trial
sec 5 Rule 30 is not a rigid rule. The order of presentation of evidence may be altered.
If there are several defendant but one was not served summons, his trial must be separated in
order that the trial of the others may resume.
Judgment
it must conform with the requites of: being in writing, prepared directly and personally by the
judge, sating clearly the facts and law which it is based, signed by him and filed to the clerk of court.
These requirements also apply in summary procedure.
The general rule is: one judgment for one case. If several cases are consolidated, one decision
may be rendered.
Sections 3, 4, 5 of Rule 36 cites several judgment in one case.
Interlocutory V when the order/decision does not terminate a case. This cannot be appealed
unless the court allows an appeal. If there is no permission, there can be no appeal. Remedy
available are those in Rule 65.
Judgment on the pleadings (rule 34) may be rendered even before pre trial.
Partial decisions, appeal will be suspended until termination of the entire case, subject to
remedies under Rule 65.