Instructions: Answer the following questions briefly and concisely in your own handwriting.

Use a long
size bond paper or lined paper as answer sheet. Note that there are Forty (40) simple questions here.

Submission shall be within five (5) days from your receipt of this questionnaire. You may submit
a scanned copy of your answers to this email deanjag92@yahoo.com OR hard copy placed in a sealed
envelope which you may leave with the LC Guard at LC Paterno which I will pick up later. If going to
school to submit would cause inconvenience to you because of restrictions on mobility, kindly tell me, so
we can find other ways so that your paper will reach me.

THIS QUESTIONNAIRE IS ONLY FOR YOU WHO IS ENROLLED IN THIS SUBJECT.

DO NOT SHARE THIS WITH ANYONE WHO IS NOT YOUR CLASSMATE.
First Set - (Apr. 25, 2020)

Dann Winston T. Santo JD II

Civil Procedure

1. What do you understand by courts of general jurisdiction? Of courts of limited

jurisdiction?

Courts of general jurisdiction – Those competent to decide their own jurisdiction and to
take cognizance of all kinds of cases, unless otherwise provided by the
law or Rules.
Courts of special or limited jurisdiction – Those which have no power to decide their own
jurisdiction and can only try cases permitted by statute.

2. Distinguish original jurisdiction from exclusive original jurisdiction.

Original Jurisdiction – power of the court to take cognizance of a case at its inception or
commencement..
Exclusive original jurisdiction – Those courts in which, under the law, exclusive actions
and/or proceedings may be originally commenced in their jurisdiction.

3. What do you understand by misjoinder of causes of action? What is the remedy in such a
case?

Answer:
Misjoinder of causes of action is when two or more causes of action are joined in one
complaint when they should not have been joined A misjoined cause of action may, on
motion of a party or on the initiative of the court, be severed and proceeded with
separately.

4. What is a real action? A personal action? Give an example for each.

Answer:
Real Actions are actions affecting title to or the recovery of possession of real property, or
an interest therein, or forcible entry and detainer actions. A real action is “local,” i.e., its
venue depends upon the location of the property involved in the litigation.

Example: an action to recover possession of real property plus damages. Real

actions for the purpose of determining the venue, shall be commenced and tried in the
proper court which has jurisdiction over the area wherein the real property involved, or a
portion thereof, is situated.

Personal Actions are actions founded on privity of contract or for the enforcement or
resolution of a contract, or for recovery of personal property. A personal action is
“transitory,” i.e., its venue depends upon the residence of the plaintiff or the defendant at
the option of the plaintiff.

Example: an action for a declaration of nullity of marriage. Personal actions for the
purpose of determining the venue, may be commenced and tried where the plaintiff or any
of the principal plaintiffs resides, or where the defendant or any of the principal defendants
resides, or in the case of a non-resident defendant, where he may be found, at the election of
the plaintiff.

5. Distinguish cause of action from right of action. Distinguish relief from a remedy.

Answer:
A cause of action is the delict or wrongful act or omission committed by the defendant in
violation of the primary rights of the plaintiff while right of action is the remedial right or
right to relief granted by law to a party to institute an action against a person who has
committed a delict or wrong against him. Cause of action is determined by the averments
in the pleading regarding the acts committed by the defendant while right of action
whether such acts give him right of action determined by substantive law.

6. What do you understand by summary procedure? What makes the procedure summary?

Summary procedure are expedited trial procedures where it prohibit certain types of
pleadings and limit allowable filings to complaints, compulsory counterclaims, and
answers. What makes the procedure summary is generally the value of the claim and if it is
a case of an Unlawful detainer and forcible entry- irrespective of the assessed value.

7. Distinguish jurisdiction from venue.

Answer:
Jurisdiction is the authority to try and hear a case and carry out its decision while venue is
the place where that authority is exercised.
Difference between them is that Jurisdiction is more on substantive law while venue is more
on procedural law and that Jurisdiction is conferred by law and cannot be subjected to the
agreement of the parties while venue can be.

8. How may a court acquire jurisdiction over the (a) subject matter, (b) person of the parties
and (c) the res?

Answer:

Jurisdiction over the subject matter- is conferred by law and based on the allegations of the
complaint or initiatory pleading.
Jurisdiction over the parties of the case- classified into two: a. Jurisdiction over the plaintiff
– acquired by the court by the filing of the complaint or any initiatory pleading b.
Jurisdiction over the person of the defendant- acquired by the court through coercive
process of service of summons or voluntary appearance;
Jurisdiction over the res- upon legal seizure of the court over the res or thing itself. This is
very important because there are some cases wherein the court is allowed to hear cases
even if the court was not able to acquire jurisdiction over the person of the defendant as
long as it has acquired jurisdiction over the res or thing itself. This usually happens in cases
where the defendant is a nonresident defendant. But the action is a real action or one that
involves the personal status of the plaintiff.

9. The parties in a physical injuries case agreed in writing to transfer the venue of the action
from Dagami, Leyte to Tacloban City. The act complained of was committed in Dagami. Is this
allowed by the Rules?
Answer;
What is allowed by the court is, if it is a personal action like this physical injuries case,
venue is dependent on the residence of the plaintiff or any of the principal plaintiffs or the
residence of the defendant at the option of the plaintiff. They can only agree to transfer the
venue, if one of the parties is a resident of Tacloban City.

10. The court which tried the case had jurisdiction over the subject matter but its decision is
argued to be erroneous. The party aggrieved challenges the jurisdiction of the court? Can he
validly do so?

Answer:
Jurisdiction over the subject matter is conferred by law and not by the consent or
acquiescence of any or all of the parties or by erroneous belief of the court that it exists.
Basic is the rule that jurisdiction over the subject matter is determined by the cause or
causes of action as alleged in the complaint. And since there is no question that the court
which tried the case had jurisdiction over the subject matter. The party aggrieved cannot
validly challenge the jurisdiction of that court. And the errors which the court may commit
in the exercise of jurisdiction are merely errors of judgment which are the proper subject
of an appeal.

11. Jurisdiction over the subject matter is a matter of law. Courts trying the case must have
jurisdiction over the subject matter, because if it does not have, a party aggrieved can question
this lack of jurisdiction at whatever stage of the action. True or False? Explain in either case.

Ans.
True, lack of jurisdiction as a ground for the annulment of judgments pertains to lack of
jurisdiction over the person of the defending party or over the subject matter of the claim.
It does not contemplate "grave abuse of discretion" considering that "jurisdiction" is
different from the
exercise thereof. Jurisdiction is not the same as the exercise of jurisdiction. As distinguished
from the exercise of jurisdiction, jurisdiction is the authority to decide a cause, and not the
decision rendered therein. Where there is jurisdiction over the person and the subject
matter, the decision on all other questions arising in the case is but an exercise of the
jurisdiction.

12. Distinguish an indispensable party from a necessary party.

Answer:
Indispensable parties must be joined under any and all conditions, his presence being a sine
qua non for the exercise of judicial power for there will be no valid judgment if
indispensable party is not joined.
Necessary parties are the parties that should be joined whenever possible; the action can
proceed even in their absence because their interest is separable from that of the
indispensable party. And if a necessary party is not joined the case may still be determined
in court but the judgment therein will not resolve the entire controversy.

13. The action was to annul the sale of land. The defendants were the parties to the sale
sought to be annulled, - the defendant bank and the defendant-spouses who were the buyers of
the lot. The action was dismissed against the defendant-spouses. Will the action to annul against
the defendant bank alone prosper?

No, because the defendant-spouses are an indispensable party to the case. An indispensable
party is a real party-in-interest without whom no final determination can be had of an
action.

14. P sued A in the RTC of Manila to recover the following sums a) P200,000 on an overdue
promissory note, b) P80,000 on the purchase price of a computer unit, c) P150,000 for damages
to his car, and d) P100,000 attorney's fees and litigation expenses. Can A validly move to dismiss
the case on the ground that the court has no jurisdiction over the subject matter of the action?

Answer:
Yes, because where the demand, exclusive of interest, damages, attorney’s fees, litigation
expenses and costs or the value in controversy, does not exceeds Php300, 000 or in Manila
Php400, 000 then the jurisdiction is in the RTC.

15. C sued A and B in one complaint in the RTC of Manila; the cause of action against A
being an overdue promissory note for P300,000 and against B an alleged balance of P300,000 on
the purchase price of goods sold on credit. Does the RTC of Manila have jurisdiction over the
case?

Answer:
Yes, because in this case the total demand is P600,000 and in cases where the demand,
exclusive of interest, damages, attorney’s fees, litigation expenses and costs, or the value of
the property exceeds P400,000 in Metro Manila the jurisdiction is with the RTC.

16. Sweet and Sour Lines is an inter-island shipping company operating in the entire
Philippine archipelago. Its passage ticket contains a stipulation printed at the back thereof to the
effect that all actions arising our of that contract shall be filed only at the proper courts in the
City of Cebu. For the injuries he sustained arising from the negligence of the vessel's crew, A, a
Leyteño filed an action for damages in the RTC of Tacloban. Is this proper in view of the
stipulation contained in the trip ticket?

Answer:
No, because of the stipulation in the ticket which says that if in case there is a liability
which arose out of that particular contract the case should be filed only at the proper
courts in the City of Cebu. This is allowed because that is venue and not jurisdiction. Venue
can be subjected to the agreement of the parties. And the Leyteno already agreed to it the
moment he boarded the shipping line since the passage ticket are considered adhesion
contracts.

17. Distinguish a negative defense from an affirmative defense. What is this defense of
confession and avoidance?

Negative Defenses are specific denials of the material facts alleged in the pleading of the
claimant essential to his cause of action. Affirmative Defenses are allegations of new
matters which, while hypothetically admitting the material allegations in the claimant‘s
pleading, would nevertheless prevent/bar recovery by him. It includes fraud, prescription,
release, payment and any other matter by way of confession and avoidance.
Avoidance is a defense where you hypothetically, admit the allegations but you raise some
matters or defenses to avoid, like statute of frauds.

18. As of the present Rules, to take effect on May 1, 2020, what is considered to be the last
pleading. Upon the filing thereof, what shall be done next in the action?

A Reply may be filed within 15 calendar days from service of the Answer. However, a Reply
may only be filed if an actionable document is attached to the Answer. A Rejoinder may
also be filed only if an actionable document is attached to the Reply and the Rejoinder is
limited to the said actionable document.
After the last responsive pleading has been served and filed, the branch clerk of court shall
issue, within five (5) calendar days from filing, a notice of pre-trial which shall be set not
later than sixty (60) calendar days from the filing of the last responsive pleading.
19. What is a pleading? Is a motion a pleading?

Pleadings are the written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment. A motion is not a pleading, because it is
an application for relief other than by a pleading. Motions are interlocutory in nature while
pleading can result in a judgement.

20. Under the present Rules, is a Motion to Dismiss allowed? If so what are the ground? If
not allowed, why not?

Under the present Rules, only the following grounds may be raised as grounds for a Motion
to Dismiss: (a) lack of jurisdiction over the subject matter; (b) pendency of action between
the same parties for the same cause; and (c) cause of action is barred by prior judgment or
by the statute of limitations. Nevertheless, any other grounds for dismissal available under
the old rules must, under the present Rules, be pleaded as an affirmative defense in the
Answer which the court will have to resolve within 30 calendar days.

21. What is a counterclaim? Must the party defending against a counterclaim file his answer
to the said counterclaim?

A counterclaim is any claim which a defending party may have against an opposing party.
A counterclaim must be answered within twenty (20) calendar days from service.

22. What motions or pleadings must contain an affidavit of merit? What must the affidavit
state?

Motions for the cause of fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such aggrieved party has
probably been impaired in his rights shall be supported by affidavits of merits. An affidavit
of merit serves as the jurisdictional basis for the court to entertain a petition for relief.

23. If a pleading is signed by counsel, what does the signature of counsel constitute?

Counsel‘s signature is a certification that:

- He has read the pleading;
- To the best of his knowledge, information and belief there is good ground to support it;
- It is not interposed for delay.

24. Who must sign the Certification Against Forum Shopping? What must it state?

Certification Against Forum Shopping must be signed by plaintiff or principal party and
shall certify under oath in the complaint or other initiatory pleading certifying to the
following matters:

(a) That the party has not commenced 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;
(b) That if there is such other pending action or claim, a complete statement of the
present status thereof; and
(c) That if he should therefore learn that the same or similar action or claim has been
filed or is pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.

A counsel may only sign the certification of non-forum shopping if the counsel is authorized
to do so by the plaintiffs.
25. What is an actionable document? If an action is based on an actionable document, how
should such document be pleaded? On the part of the defendant, how should he contest an
actionable document?

An actionable document is a written instrument upon which the action or defense is based
by either the plaintiff or the defendant. It should be pleaded by setting forth in the pleading
the substance of the instrument or the document, (a) and to attach the original or the copy
of the document to the pleading as an exhibit and to be part of the pleading; or (b) with like
effect, to set forth in the pleading said copy of the instrument or document.

26. Where should affirmative defenses be raised, in the Answer or in a Motion to Dismiss? If
affirmative defenses are raised, must the court conduct hearing on such defenses or may the court
validly resolve the same motu proprio?

Affirmative defenses must be raised in the Answer and the court shall motu proprio resolve
those affirmative defenses within thirty (30) calendar days from the filing of the answer.

27. A defendant was validly declared in default. Discuss the alternative but successive
remedies which he can avail himself of.

(1) Remedy after notice of order and before judgment:

 Motion to set aside order of default, showing that
(i) the failure to answer was due
to fraud, accident, mistake, or excusable negligence, and
(ii) the defendant has a
meritorious defense—there must be an affidavit of merit.

(2) Remedy after judgment but before finality:

 Motion for new trial under Rule 37; or
 Appeal from the judgment as being contrary to the evidence or the law;

(3) Remedy after judgment becomes final and executor:

 Petition for relief from judgment under Rule 38;
 Action for nullity of judgment under Rule 47.

(4) If the order of default is valid, Certiorari is not available. If the default order was
improvidently issued, that is, the defendant was declared in default, without a motion, or
without having served with summons before the expiration of the reglementary period to
answer, Certiorari is available as a remedy.

1. Distinguish an amended pleading from a supplemental pleading. Is amendment of

pleading a matter of right or a matter of discretion?

A supplemental pleading does not extinguish the existence of the original pleading. A
supplemental pleading is one which sets forth transactions, occurrences, or events which
have happened since the date of the pleading sought to be supplemented. The filing of
supplemental pleadings requires leave of court. The court may allow the pleading only
upon such terms as are just.
An amended pleading supersedes the original one which it amends (Sec. 8, Rule 10). The
original pleading loses its status as a leading, is deemed withdrawn and disappears from
the record. An amended pleading takes the place of the original pleading.
Ammendment of pleading is a matter of right if it is done at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten (10) calendar days after it
is served.
It is a matter of discretion if it is a substantial amendment, for it may be made only upon
leave of court.
2. What is the responsive pleading to a counterclaim? When should such responsive
pleading be filed?

Answer to counterclaim is the responsive pleading to a counterclaim and must be

answered within twenty (20) calendar days from service.

3. Is a Bill of Particulars a pleading or a motion? When should it be filed? What is the

remedy in case of denial of a bill of particulars?

A Bill of Particulars is a motion, it is filed by the defendant before the latter files an answer.
In case of non-compliance or insufficient compliance with the order for Bill Of Particulars,
the court may order the striking out of the pleading (or 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 will be stricken off and his
counterclaim dismissed, and he will be declared in default upon motion of the plaintiff.

4. Distinguish filing from service of pleadings. What are the modes of service of pleadings?

Filing is defined as an Act of presenting the pleading or other paper to the clerk of court.
Service is defined as an act of providing a party with a copy of the pleading or paper
concerned. Pleadings, motions, notices, orders, judgments, and other court submissions
shall be served personally or by registered mail, accredited courier, electronic mail,
facsimile transmission, other electronic means as may be authorized by the Court, or as
provided for in international conventions to which the Philippines is a party.

5. The defendant, a non-resident of the Philippines, could not be served summons, despite
diligent efforts of the plaintiff. Plaintiff sought the attachment of a property belonging to the
defendant in a writ of preliminary attachment. Can the court now proceed with the trial of the
case?

Yes, it now becomes a real action because now it involves a property of the defendant
located in the Philippines so the venue will be where the plaintiff resides or the place where
the property is located.

6. What is meant by this conventional service or filing of orders, pleadings and other
documents?

Conventional service or filing of orders, pleadings and other documents means that for; (a)
Initiatory pleadings and initial responsive pleadings, such as an answer; (b)Subpoenae,
protection orders, and writs; (c) Appendices and exhibits to motions, or other documents
that are not readily amenable to electronic scanning may, at the option of the party filing
such, be
filed and served conventionally; and (d)Sealed and confidential documents or records must
be must be served or filed personally or by registered mail when allowed, and shall not be
served or filed electronically, unless express permission is granted by the Court.

7. How may summons be served and by whom?

Whenever practicable, the summons shall be served by handing a copy thereof to the
defendant in person and informing the defendant that he or she is being served, or, if he or
she refuses to receive and sign for it, by leaving the summons within the view and in the
presence of the
defendant. If, for justifiable causes, the defendant cannot be served personally after at least
three (3) attempts on two (2) different dates, service may be effected:
(a) By leaving copies of the summons at the defendant's residence to a person at
least eighteen (18) years of age and of sufficient discretion residing therein;
Page 19 of 52
(b)By leaving copies of the summons at the defendant's office or regular place of
business with some competent person in charge thereof. A competent person
includes, but is not limited to, one who customarily receives correspondences
for the defendant;
(c) By leaving copies of the summons, if refused entry upon making his or her
authority and purpose known, with any of the officers of the homeowners’
association or condominium corporation, or its chief security officer in charge
of the community or the building where the defendant may be found; and
(d)By sending an electronic mail to the defendant’s electronic mail address, if
allowed by the court.

8. If the defendant is a foreign private juridical entity, how may summons be served upon it?
What is the period for such defendant to file and serve its answer?

When the defendant is a foreign private juridical entity which has transacted or is doing
business in the Philippines, as defined by law, 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, agents, directors or
trustees within the Philippines.

If the foreign private juridical entity is not registered in the Philippines, or has no
resident agent but has transacted or is doing business in it, as defined by law, such
service may, with leave of court, be effected outside of the Philippines through any
of the following means:

(a) By personal service coursed through the appropriate court in the foreign
country with the assistance of the department of foreign affairs;
(b)By publication once in a newspaper of general circulation in the country where
the defendant may be found and by serving a copy of the summons and the
court order by registered mail at the last known address of the defendant;
(c) By facsimile;
(d)By electronic means with the prescribed proof of service; or
(e) By such other means as the court, in its discretion, may direct.

If summons is made on the government official designated by law to receive the same, the
answer shall be filed within sixty (60) calendar days after receipt of summons by such
entity.

9. What is extraterritorial service of summons? What are the actions in which such mode of
service is allowed?

Extraterritorial service of summons applies when the following requisites concur:

 The defendant is a non-resident;
 He is not found in the Philippines; and
 The action against him is either in rem or quasi in rem.

It does not apply to a defendant who is a resident of the Philippines. It also does not apply
to an action in personam.

The actions in which such mode of service is allowed are:

(1) Actions that affect the personal status of the plaintiff;

(2) Actions which relate to, or the subject matter of which is property within the
Philippines, in which the defendant claims a lien or interest, actual or contingent;

(3) Actions in which the relief demanded consists, wholly or in part, in excluding the
defendant
form an interest in property located in the Philippines; and

(4) When the defendant’s property has been

attached in the Philippines.

1. Distinguish litigious from non-litigious motions.

Litigious motions are motions made with notice to the adverse party to give them an
opportunity to oppose.
Non-litigious motions are motions which the court may act upon without prejudicing the
rights of adverse parties. These are made without the presence of a notification to the other
party because the question generally presented is not debatable.

2. What is substituted service as used in Rule 13 and Rule 14 of the Rules of Court?

Substituted service as used in Rule 13 is the mode which is availed of only when there is
failure to effect service personally or by mail. This failure occurs when the office and
residence of the party or counsel is unknown. Substituted service is effected by delivering
the copy to the clerk of court, with proof of failure of both personal service and service by
mail.

While substituted service as used in Rule 14 can be used only if the process server have
made several attempts on personal service. "Several attempts" means at least three (3) tries
on two (2) different dates. Substituted service may be effected:

(a) By leaving copies of the summons at the defendant's residence to a person at

least eighteen (18) years of age and of sufficient discretion residing therein;

(b)By leaving copies of the summons at the defendant's office or regular place of
business with some competent person in charge thereof. A competent person
includes, but is not limited to, one who customarily receives correspondences
for the defendant;

(c) By leaving copies of the summons, if refused entry upon making his or her
authority and purpose known, with any of the officers of the homeowners’
association or condominium corporation, or its chief security officer in charge
of the community or the building where the defendant may be found; and

(d)By sending an electronic mail to the defendant’s electronic mail address, if

allowed by the court.

3. If a plaintiff seeks the dismissal of his complaint, what must he file a notice or motion?
When must be such notice or motion, as the case may be?

It depends, a complaint may be dismissed by the plaintiff by filing a Notice of Dismissal at

any time before service of the answer or of a motion for summary judgment. Upon such
notice being filed, the court shall issue an order confirming the dismissal.

Or through a motion to dismiss on the following grounds: (1) Lack of jurisdiction over
subject matter (2) Litis pendentia (3) That the cause of action is barred by a prior
judgment or by the statute of limitations;

4. Who may intervene in an existing suit? What must he file, if allowed, a complaint or
answer?

A person who has a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. What he must file is
a complaint-in-intervention, this is a pleading wherein an intervenor asserts a claim against
either or all of the original parties.

5. What are the different modes of discovery? What is the reason why parties are urged to
avail themselves of these modes of discovery?

Modes or Methods of Discovery provided by the Rules of Court:

1) Depositions pending action (Rule 23); or Depositions before action or pending appeal
(Rule 24);
2) Interrogatories to parties (Rule 25);
3) Request for admission by adverse parties (Rule 26);
4) Motion for Production or inspection of documents or things (Rule 27); and
5) Motion for physical and mental Examination of persons (Rule 28).

The primary purpose of discovery is to enable the parties to obtain the fullest possible
knowledge of the issues and facts before trial, narrow and clarify the basic issues between
the parties, to ascertain the facts relative to the issues and thus prevent the situation where
trials are carried on in the dark. It makes the parties lay down their cards on the table so
that justice can be rendered on the merits of the case.

6. Distinguish deposition de bene esse from deposition in perpetuam rei memoriam.

Deposition de bene esse are taken for purpose of pending action, any person can perpetuate
their
testimony for use in the event of further proceedings in the said court.

Deposition in perpetuam rei memoriam are those taken to perpetuate evidence for
purposes of an anticipated action or further proceedings in a case on appeal. The person
who can apply are the ones who desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any court of the Philippines.

7. Is a petition for relief from judgment, (a) a new action, (b) an appeal, (c) a motion, (d) a
certiorari case?

d) A petition for relief from judgment is a certiorari case if there is Grave Abuse of
Discretion Amounting to Lack or Excess of Jurisdiction.

8. What is a demurrer to evidence? If a demurrer is a granted, what happens to the action?

What remedy is available to a party aggrieved in such a case?

A demurrer to evidence is based on insufficiency of evidence. It may be filed only by the

defendant against the complaint of the plaintiff and only after the plaintiff has completed
the presentation of his evidence. If the motion is granted the complaint is dismissed and
depending on the ground, the complaint may be re-filed but shall not be subject of an
appeal or petition for certiorari, prohibition or mandamus before judgment.

9. When may a motion for judgment on the pleadings be validly filed? Distinguish judgment
on the pleadings from summary judgment.

Motion for judgment on the pleadings may be filed by a party if there is no controverted
matter in the case after the answer is filed.

In the judgment on the pleadings, the answer does not tender an issue; in summary
judgment, there is an issue tendered in the answer, but it is not genuine or real issue as may
be shown by affidavits and depositions that there is no real issue and that the party is
entitled to judgment as a matter of right. In judgment on the pleadings, the entire case may
be terminated; while in summary judgment, it may only be partial. In judgment on the
pleadings, only the plaintiff or the defendants as far as the counterclaim, cross-claim or
third-party complaint is concerned can file the same; while in summary judgment, either
the plaintiff or the defendant may file it.

10. What is it which a party seeks from the court when he files a motion for new trial? If
granted what would ensue next in the action?

The party seeks from the court vacated or set aside the original judgment and if granted
the action shall stand for trial de novo which may affect the judgment or final order
accordingly.

11. Is execution of judgment a matter or right or a matter of discretion?

If it is a judgement that disposes of, adjudicate, or determine the rights of parties and is
still subject to appeal, execution of judgment is a matter of discretion. But if the judgement
becomes final and executory by operation of law, i.e after the lapse of period to apeal and
no apeal was perfected, then execution of judgement is a matter of right.

12. From the judgment of the RTC, the losing party filed an appeal. What is the mode of
appeal? If the party filed a Notice of Appeal, but the RTC dismissed the same because it was
filed out of time, does the RTC have the power to do so?

The mode of appeal is ordinary appeal, this is the appeal to the CA in cases decided by the RTC
in the exercise of its original jurisdiction.
The RTC does not have the power to do so, failure to file the notice of appeal within the period
prescribed by the Rules may be only be dismissed by the Court of Appeals, on its own motion or
on that of the appellee.

13. Is certiorari a mode of appeal or an original action? Explain.

Certiorari is a mode of appeal in all cases where only questions of law are raised or
involved, the appeal shall be to the Supreme Court by petition for review on certiorari in
accordance with the Rule 45.

Certiorari is an original action in cases when any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted grave abuse of discretion amounting to lack or
excess of jurisdiction.

14. Distinguish a petition for relief from judgment from a petition for annulment of
judgment.

A petition for relief from judgment can be filed by aggreived party after the time for filing
a motion for new trial or reconsideration and for appeal has lapsed. This is a legal remedy
whereby a party seeks to set aside a judgment rendered against him by a court whenever he
was unjustly deprived of a hearing or was prevented from taking an appeal, in either case,
because of Fraud, Accident, Mistake or Excusable negligence.

An action for annulment of judgment is a remedy in law independent of the case where the
judgment sought to be annulled was rendered. The purpose of such action is to have the
final and executory judgment set aside so that there will be a renewal of litigation.