VERONICA T.

ZACARIAS
SAINT DOMINIC SAVIO COLLEGE
SCHOOL OF LAW
CIVIL PROCEDURE 2
ATTY. JUVY B MINTAR JR., LPT, RCrim, CSP
FINAL EXAMINATION

I.

The RTC rendered judgment against ST, a copy of which was received by his counsel on February 28,
2023. On March 10, 2023, ST, through counsel, filed a motion for reconsideration of the decision with
notice to the Clerk of Court submitting the motion for the consideration of the court. On March 15, 2023,
realizing that the Motion lacked a notice of hearing, ST’s counsel filed a supplemental pleading. Was
the Motion for Reconsideration filed within the reglementary period?

Yes, it was filed within the reglementary period. A 15-day period is provided for the losing party to file
the motion for reconsideration in the event they furnished a copy of the decision. In the above-
mentioned facts, ST received a copy of the decision on February 28, 2023 and he filed the motion for
reconsideration 10 days after, which was on March 10, 2023. Subsequently, he filed a supplemental
pleading after 5 days right after he noticed that the said motion was lacking in notice of hearing, that
was on March 15, 2023, as stated. Considering the circumstances cited, it is fair to say that said motion
was filed within the reglementary period.

II.
Distinguish the two (2) modes of appeal from the judgment of the Regional Trial Court to the Court of
Appeals.
Ordinary appeal under Rule 41 of Rules of Civil Procedure, is a matter of right while Petition for Review
as provided under Rule 42, it is a matter of discretion. Moreover, all records under ordinary appeal are
elevated from the court of origin, whereas in Rule 42, no records are elevated unless the court decrees
it. Lastly, a Notice of Record of Appeal is filed with the court of origin, unlike in Petition for review, it is
filed before the CA.
III.
XXX received a copy of the RTC decision on June 9, 2023; YYY received it on the next day, June 10,
2023. XXX filed a Notice of Appeal on June 15, 2023. The parties entered into a compromise on June
16, 2023. On June 13, 2023, YYY, who did not appeal, filed with the RTC a motion for approval of the
Compromise Agreement. XXX changed his mind and opposed the motion on the ground that the RTC
has no more jurisdiction. Rule on the motion assuming that the records have not yet been forwarded to
the CA.
While it is true that there is no limitation as to when compromise agreement should be entered into, and
that there is no law or justification disallowing the same solely because it was entered into after a final
judgement, however, it is also true that determination of its validity must be of primordial consideration
by complying with the principle and requisites of a valid contract. In the given facts, XXX opposed the
motion on the ground that RTC has no more jurisdiction over it. In consonance with the rule of contract,
the same shall only be binding upon the consent of the parties. Hence, motion is denied.
IV.
After receiving the adverse decision rendered against his client, the defendant, Atty. Ya-bang duly filed
a notice of appeal. For his part, the plaintiff timely filed a motion for partial new trial to seek an increase
in the monetary damages awarded. The RTC instead rendered an amended decision further reducing
the monetary awards. Is it necessary for Atty. Ya-bang to file a second notice of appeal after receiving
the amended decision?
No, it is no longer necessary. There is no need to appeal anew from an amended or modified
judgement regardless of the nature of amendment, whether it increases or decreases the appellant’s
liability, whether it is substantial or not, is immaterial.
 V.
A default judgment was rendered by the RTC ordering D to pay P a sum of money. The judgment
became final, but D filed a petition for relief and obtained a writ of preliminary injunction staying the
enforcement of the judgment. After hearing, the RTC dismissed D’s petition, whereupon P immediately
moved for the execution of the judgment in his favour. Should P’s motion be granted? Why?
Yes, P’s motion should prosper because P won the case and it is an enforcement of a final judge
judgment, unless D files a notice of appeal in which the case will be sent to the appellate court to
review the judgement of the original court.

VI.
What are the grounds for the annulment of a judgment of the RTC?
The annulment of judgement shall be base only on extrinsic fraud and lack of jurisdiction as provided
under Rule 47 of Rules on Civil Procedure .
VII.
The trial court rendered judgment ordering the defendant to pay the plaintiff moral and exemplary
damages. The judgment was served on the plaintiff on October 1, 2021 and on the defendant on
October 5, 2021. On October 8, 2021, the defendant filed a notice of appeal from the judgment, but the
following day, October 9, 2021, the plaintiff moved for the execution of the judgment pending appeal.
The trial court granted the motion upon the posting by the plaintiff of a bond to indemnify the defendant
for damages it may suffer as a result of the execution. The court gave as a special reason for its order
the imminent insolvency of the defendant. Is the order of execution pending appeal correct? Why?
No, it is not correct. While it is true that the motion for the execution for pending appeal was filed within
the 15 day period, the defendant filed a notice of appeal primarily from the judgement. The timeline of
filing gives the first hint who shall the court must accommodate. Assuming that the defendant complied
with the requirements needed to file the notice of appeal, the court can no longer approved the
execution of pending appeal because the case will be directed to the appellate court. Hence, the order
of execution of which is incorrect.

VIII.
Under Article 1144 of the New Civil Code, an action upon a judgment must be brought within 10 years
from the time the right of action accrues. Is this provision applicable to an action filed in the Philippines
to enforce a foreign judgment? Explain
Yes. A foreign judgment merely gives rise to a right of action. Under article 1144 (3) of the Civil Code,
an action upon a judgment must be brought within 10 years “from the time the right of action accrues’.
The provision applies to local and foreign judgments because it does not make any distinction between
the two (Mijares v Ranada), in which the Supreme Court ruled that ‘where the law does not distinguish,
we shall not distinguish’. Moreover, the right of action commences to run from the date of finality of the
foreign judgment as laid down in the case of PNB v Bondoc.
IX.
In a case, the property of an incompetent under guardianship was in custodia legis. Can it be attached?
Explain.
Yes. The New Rules of Court specifically provide for the procedure in the event mentioned above.
Property under custodia legis are now attachable subject to the mode set forth under Rule 57 of ROC.
The interest of an heir in the estate of the deceased may be attached for purposes of execution even if
the estate is still under settlement before the courts. This holds true in the case of Reganon vs Imperial.
X.
May a writ of preliminary attachment be issued ex parte? Briefly state the reason(s) for your answer.
Yes, writ of preliminary attachment may be issued ex parte as laid down in Sec. 2, Rule 4 of the Rules
of Civil Procedure, provided that a Hearing Officer must conduct a motion and hearing upon filing of
which.
 XI.
A sues B for collection of a sum of money. Alleging fraud in the contracting of the loan, A applies for
preliminary attachment with the court. The Court issues the preliminary attachment after A files a bond.
While summons on B was yet unserved, the sheriff attached B's properties. Afterwards, summons was
duly served on B. B moves to lift the attachment. Rule on this.
There is no question as to the issuance of Writ of Preliminary Attachment for the plaintiff eho have
religiously complied with the requisites for the issuance of the same as laid down under Rule 57 of the
Rules of Civil Procedure -affidavit and bond.
While it is true that a preliminary attachment may be issued ex-parte, it is also true that the writ cannot
bind and affect the defendant until jurisdiction over his person is eventually obtained, citing Sievert v.
CA. Therefore, it is required that when the proper officer commences implementation of the writ of
attachment, service of summons should be simultaneously made.
In the case at bar, the court had failed to serve the summons to the defendant prior to the
implementation of the writ in order to acquire jurisdiction over the defendant.
Hence, motion to lift the attachment is granted.

XII.
What are the requisites for the issuance of (a) a writ of preliminary injunction; and (b) a final writ of
injunction?
A. In a writ of preliminary injunction under Rule 58 sec 3 of ROC, there must be a showing based on
facts that the party availing of the remedy is entitled to the relief demanded. Because an injunction will
not issue to protect a right not in esse and which may never arise or to restrain an act, which does not
give rise to a cause of action. Secondly, That the commission, continuance or non-performance of the
acts complained of during the litigation would probably work injustice to the applicant and a party
therein is threatening, or is attempting to do some act or acts probable in violation of the rights of the
applicant with respect to the subject of the action and tends to render the judgment ineffectual.
B. While requisite of a final writ of injunction is laid down under sec 9 rule 58 of ROC, that is when after
the trial of the action, it appears that the applicant is entitled to have the act or acts complained of
permanently enjoined.
XIII.
An application for a writ of preliminary injunction with a prayer for a temporary restraining order is
included in a complaint and filed in a multisala RTC consisting of Branches 1, 2, 3 and 4. Being urgent
in nature, the Executive Judge, who was sitting in Branch 1, upon the filing of the aforesaid application
immediately raffled the case in the presence of the judges of Branches 2, 3 and 4. The case was raffled
to Branch 4 and judge thereof immediately issued a temporary restraining order. Is the temporary
restraining order valid?
It is valid. As a general rule, when an application for a TRO is included in a complaint or any initiatory
pleading, the case, if filed before a multi-branch court, shall be raffled only after notice to adverse party.
However, in the event that a matter is of extreme urgency , the Executive Judge may issue a TRO ex-
parte effective only for 72 hrs from the time of issuance, but the shall forthwith comply with requisites in
the issuance of a TRO.
XIV.
Joaquin filed a complaint against Jose for the foreclosure of a mortgage of a furniture factory with a
large number of machinery and equipment. During the pendency of the foreclosure suit, Joaquin
learned from reliable sources that Jose was quietly and gradually disposing of some of his machinery
and equipment to a businessman friend who was also engaged in furniture manufacturing such that
from confirmed reports Joaquin gathered, the machinery and equipment left with Jose were no longer
sufficient to answer for the latter’s mortgage indebtedness. In the meantime, judgment was rendered by
the court in favor of Joaquin but the same is not yet final. Knowing what Jose has been doing. If you
were Joaquin’s lawyer, what action would you take to preserve whatever remaining machinery and
equipment are left with Jose? Why?
If I were the lawyer, I would seek to file a writ of preliminary attachment as a remedy during the
pendency of the said suit. As provided under Rule 57 of ROC, it’s a provisional remedy whereby plaintiff
may have the property of the adverse party as a security for the satisfaction of any judgement that may
be recovered specifically in an action against a party who has removed or disposed of his property with
intent to defraud his creditor.
XV.
Distinguish error of jurisdiction from error of judgement.
Error of Jurisdiction-is one where the act complained of was issued by the court without or in excess of
jurisdiction which occurs when the court exercises a jurisdiction not conferred upon it by law, or when
the court or tribunal although with jurisdiction, acts in excess of its jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction. It is correctible only by the extraordinary writ of certiorari.
Any judgment rendered without jurisdiction is a total nullity and may be struck down at any time, even
on appeal, except when the party raising the issue is barred by estoppel.d
Error of judgment-is one which the court may commit in the exercise of its jurisdiction. As long as the
court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will
amount to nothing more than mere errors of judgment. Errors of judgment include errors of procedure
or mistakes in the court proceedings. It is correctible by appeal. Errors of judgement are not proper
subjects of special civil action for certiorari.
XVI.
Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that under Rule 65
of the Rules of Civil Procedure.
In certiorari to the Supreme Court under the Constitution, it shall have original jurisdiction over cases
affecting ambassadors, other public ministers, and consuls as well as original and exclusive
jurisdiction in petitions for the issuance of writs of certiorari, prohibition and mandamus against the
Court of Appeals. While in Certiorari as provided under Rule 65 of the ROC, its requisites must be
directed against a tribunal, board or officer exercising judicial functions, and such tribunal, board or
officer has acted without or in excess of jurisdiction or with grave abuse of discretion and that there is
no appeal nor any plain, speedy and adequate remedy in the ordinary course of law.
There are differences as to the parties complained of, however, both are being raised for issues with
regard to jurisdiction, it carries with it the jurisdiction of courts whether it is an original and exclusive or
appellate jusridiction.
XVII.
The defendant was declared in default in the RTC for his failure to file an answer to a complaint for a
sum of money. On the basis of the plaintiff’s ex parte presentation of evidence, judgment by default was
rendered against the defendant. The default judgment was served on the defendant on October 1,
2001. On October 10, 2001, he files a verified motion to lift the order of default and to set aside the
judgment. In his motion, the defendant alleged that, immediately upon receipt of the summon, he saw
the plaintiff and confronted him with his receipt evidencing his payment and the at the plaintiff assured
him that he would instruct his lawyer to withdraw the complaint. The trial court denied the defendant’s
motion because it was not accompanied by an affidavit of merit. The defendant filed a special civil
action for certiorari under Rule 65 challenging the denial order. a. Is certiorari under Rule 65 the proper
remedy? Why? b. Did the trial court abuse its discretion or act without or in excess of its jurisdiction in
denying the defendant’s motion to lift the order of default judgement? Why?
A. No. Certiorari under Rule 65 is not the proper remedy. In a judgment by default, with the presumption
that the defending party was properly declared in default and before the judgement becomes final and
executory, he may file a motion for new trial and may also appeal from judgement as being contrary to
the evidence or the law. This right to appeal from a judgement is not to be denied the party aggrieved.
In this case, the filing of a motion to lift the order of default is the proper remedy after notice of order
prior the rendition of default judgment, to be filed under oath. The trial court's denial of defendant's
motion for failure of submitting an affidavit of merit is a disregard to principle of liberalization, absent
abuse of procedural rules by the defendant.
B. Yes. The trial court in denying defendant's motion acted without or in excess of its jurisdiction. This is
in contrary to the order enjoining courts to be liberal in setting aside orders of default. The policy of the
law is to have litigant's case tried on the merits as much as possible. Thus, the court upon its discretion
shall permit the defendant the filing of answer even beyond the reglementary period, him not ignoring
the procedural rules.

XVIII.
Differentiate certiorari as an original action from certiorari as a mode of appeal.
Under Rule 65, certiorari as an original or independent action is not part of the proceedings that
resulted in the order assailed. It requires the petition for certiorari to comply with basic requisites,
namely: a)the petition is directed against a tribunal, board or officer exercising judicial or quasi-judicial
functions, b)such tribunal, board or officer has acted without or in excess of jurisdiction or grave abuse
of discretion amounting to lack or excess of jurisdiction, and c)there is no appeal, or plain, speedy or
adequate remedy in the ordinary course of law.
Certiorari as a mode of appeal under Rule 45 is available from the judgment, final order or resolution of
the CA, Sandiganbayan, CTA, or RTC or other courts whenever authorized by law which involves
questions of law, questions of fact, or mixed questions of fact or law.

XIX.
The Ombudsman found probable cause to charge with plunder the provincial governor, vice governor,
treasurer, budget officer, and accountant. An Information for plunder was filed with the Sandiganbayan
against the provincial officials except for the treasurer who was granted immunity when he agreed to
cooperate with the Ombudsman in the prosecution of the case. Immediately, the governor filed with the
Sandiganbayan a petition for certiorari against the Ombudsman claiming there was grave abuse of
discretion in excluding the treasurer from the Information.
a. Was the remedy taken by the governor correct?
b. Will the writ of mandamus lie to compel the Ombudsman to include the treasurer in the Information?
A. No. It is not proper. There is no showing that the Ombudsman committed grave abuse of discretion
in granting immunity to the treasurer who agreed to cooperate in the prosecution of the case. Hence,
the petition for certiorari should not be the remedy. The Governor should have filed a Motion for
Reconsideration instead.
B. No. Mandamus will not lie to compel the Ombudsman to include the treasurer in the Information.
Mandamus may only be resorted to in order to compel respondent tribunal, corporation, board, officer
or person to take action involving the exercise of judgment and discretion. It cannot be used to direct
the manner or the particular way discretion is to be exercised.

XX.
May Congress enact a law providing that a 5,000 square meter lot, a part of the UST compound in
Sampaloc Manila, be expropriated for the construction of a park in honor of former City Mayor Arsenio
Lacson? As compensation to UST, the City of Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna
originally intended as a residential subdivision for the Manila City Hall employees.
Yes. Congress can enact a law to expropriate property for public use or for genuine public necessity
upon payment of just compensation in obeisance with one of the inherit powers of the government -
Imminent domain. The determination of just compensation is a judicial function and Congress
may not prevent the exercise of judicial discretion to determine just compensation. Under Sec. 5,
Rule 67 of the 1997 Revised Rules of Civil Procedure, the ascertainment of just
compensation requires the evaluation of three commissioners. Hence in this case, the 5-hectare lot as
compensation to UST would not amount to the full and fair equivalent value of the land subject for
expropriation.