Defendant through his lawyer filed an answer therein admitting the averment in the complaint that the land was acquired by the plaintiff through inheritance from his parents, the former owners thereof. Subsequently, the defendant changed his lawyer and, with leave of court, amended the answer. In the amended answer, the abovementioned admission no longer appears; instead, the alleged ownership of the land by the plaintiff was denied coupled with the allegation that the defendant is the owner of the land for the reason that he bought the same from the plaintiff·s parents during their lifetime. After trial, the Regional Trial Court rendered a decision upholding the defendant·s ownership of the land. On appeal, the plaintiff contended that the defendant is bound by the admission contained in his original answer. Is the contention of plaintiff correct? Why? SUGGESTED ANSWER: NO, because pleadings that have been amended disappear from the record, lose their status as pleadings and cease to be judicial admissions. While they may nonetheless be utilized as against the pleader as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. (Director of Lands vs. Court of Appeals, 196 SCRA 94) ALTERNATIVE ANSWER: YES because an admission in the original pleading does not cease to be a judicial admission simply because it was deleted in an amended pleading. The original answer, although replaced byan amended answer does not cease to be part of a judicial record, not having been expunged therefrom. (Dissenting opinion in Torres vs. Court of Appeals, 131 SCRA 24)

REMEDIES OF A PARTY DECLARED IN DEFAULT What are the available remedies of party declared in default: 1.) Before the rendition of judgment; 1% 2.) After judgment but before its finality; and 2% 3.) After finality of judgment? 2% SUGGESTED ANSWER: The available remedies of a party declared in default are as follows: 1.) Before the rendition of judgment(a)he may file a motion to dismiss under oath to set aside the order of default on the grounds of fraud, accident, mistake or excusable negligence and that he has a meritorious defense ( Sec. 3[b] of Rule 9 ); and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of discretion tantamount to lack or excess of jurisdiction ( Sec. 1 of Rule 65 ); or(b)he may file a petition for certiorari if he has been illegally declared in default e.g. during the pendency of his motion to dismiss or before the expiration of the time to answer. ( Matute v. CA, 26 SCRA 768; Acosta-Ofalia v. Sundial, 85SCRA 412 After judgment but before its finality, he may file a motion for new trial on the grounds of fraud, accident, mistake, excusable negligence or a motion for reconsideration on the ground of excessive damages, insufficient evidence or the decision or final order being contrary to law ( Sec. 2 of Rule 37); and thereafter, if the motion is denied, appeal is available under Rules 40 or 41, whichever is applicable. After finality of the judgment, there are three ways to assail the judgment, which are:(a) a petition for relied under Rule 38 on the grounds of fraud, accident, mistake or excusable negligence;(b) annulment of judgment under Rule 47 for extrinsic fraud or lack of jurisdiction;(c) certiorari if the judgment is void on its face or by the judicial record. (Balangcad vs. Justices of the Court of Appeals, G.R. No. 83888, February12,1992, 206 SCRA 171



What is the effect of the death of a party upon a pending action? SUGGESTED ANSWER: When the claim in a pending action is purely personal, the death of either of the parties extinguishes the claim and the action is dismissed. When the claim is not purely personal and is not thereby extinguished, the party should be substituted by his heirs or his executor or administrator.(Sec. 16 of Rule 3). If the action for recovery of money arising from contract, express or implied, and the defendant dies before the entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff shall been forced in the manner provided in the rules for prosecuting claims against the estate of a deceased person. ( Sec. 20 of Rule 3)

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