REMEDIAL LAW REVIEW II

Bar Questions and Answers

JURISDICTION, VENUE, AND PARTIES

(1) Error of judgment and error of jurisdiction; distinctions (Bar 1989)

o An error of judgment is one which the court may commit in the exercise of 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 courts findings.
o An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction. Errors
of jurisdiction occur when the court exercises a jurisdiction not conferred upon it by law. It may also occur 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.
o Errors of judgment are correctible by appeal. Errors of jurisdiction are correctible only by the extraordinary writ of certiorari.
o Where a court has jurisdiction, a wrong decision is not void. If the court has jurisdiction, it is altogether immaterial how grossly
irregular or manifestly erroneous its proceedings may have been. The judgment cannot be considered a nullity and cannot
therefore be collaterally impeached. Such a judgment is binding on the parties unless it is reversed or annulled in a direct
proceeding. But if there is a total want of jurisdiction in a court, its proceedings are an absolute nullity, confer no right and
afford no protection but will be pronounced void when collaterally attacked. Any judgment rendered without jurisdiction is a
total nullity and may be struck down at any time, even on appeal; the only exception is when the party raising the issue is
barred by estoppel.

(2) Jurisdiction and cause of action (Bar 1988)

o Jurisdiction is not a cause of action. The former is an authority. The latter is the act or omission violative of the rights of others.
Jurisdiction is conferred by law. A cause of action is not conferred by law but exists because of a violation of a right.

(3) Illustration (Bar 2004)

Q P filed a complaint for a sum of money against D with the MeTC-Makati, the total amount of the demand exclusive of interest,
damages of whatever kind, attorneys fees, litigation expenses, and costs being P1M. In due time, D filed a motion to dismiss
the complaint on the ground of the MeTCs lack of jurisdiction over the subject matter. After due hearing, the MeTC ruled that
(1) the court lacked jurisdiction over the subject matter of the complaint; and ordered that (2) the case therefore should be
forwarded to the proper RTC immediately. Was the courts ruling concerning jurisdiction correct? Explain briefly.
A The ruling concerning jurisdiction was correct. The amount falls within the jurisdiction of the RTC. The jurisdictional amount of
the MeTC should not exceed P400k (Sec. 33, B.P. 129; R.A. 7691). However, its order to forward the case to the RTC is
erroneous. The proper order is to dismiss the case.

(4) Illustration (Bar 1981)

Q A, a resident of Melbourne, Australia, presented a complaint against B, a resident of Manila, before the Court of First Instance
(now RTC) of Manila for accounting and damages. A never came to the PH to file the suit and is only represented in this case
by counsel. B files a motion to dismiss the complaint on the ground that the court acquired no jurisdiction over the person of
A. Should the case be dismissed on this ground and why?
A The suit should not be dismissed on the ground invoked by B. Jurisdiction over the plaintiff is not acquired by his personal
appearance in court. Jurisdiction over the plaintiff is acquired by his filing of the complaint in court. By filing a complaint, even
through his counsel, A voluntarily submitted himself to the jurisdiction of the court.

(5) Illustration (Bar 2005)

Q A obtained a money judgment against B. After the finality of the decision, the court issued a writ of execution for the
enforcement thereof. Conformably with the said writ, the sheriff levied upon certain properties under Bs name. C filed a third-
party claim over said properties claiming that B had already transferred the same to him. A moved to deny the third-party
claim and to hold B and C jointly and severally liable to him for the money judgment alleging that B had transferred said
properties to C to defraud him (A). After due hearing, the court denied the third-party claim and rendered an amended
decision declaring B and C jointly and severally liable to A for the money judgment. Is the ruling of the court correct? Explain.
A The ruling of the court is not correct. To be valid, a judgment must be rendered against a person over whom the court has
jurisdiction. The court has no jurisdiction over the person of C who was not impleaded in the action. He was not summoned
to the suit and thus was never a party to the proceedings. The third-party claim of C is a claim filed during the execution stage
of a judgment that is already final and executory.

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(6) Illustration (Bar 1994)

Q How is jurisdiction acquired over the person of:
(a) The plaintiff in a special civil action for mandamus?
(b) The defendant in an action for unlawful detainer?
(c) A non-resident defendant who is not found in the PH, in an action for compulsory acknowledgment of his natural child?
A (a) Jurisdiction over the person of the plaintiff in a special civil action for mandamus is acquired when the action is
commenced by the filing of the complaint (Sec. 5, Rule 1, Rules of Court). This presupposes payment of the docket
fees.
(b) Jurisdiction over the defendant is acquired by his voluntary appearance or by a valid service of summons (Sec. 20, Rule 14,
Rules of Court).
(c) Jurisdiction cannot be acquired over the person of the defendant. The action being in personam, jurisdiction can be
acquired over the defendant by service in person upon him within the country. Since he is outside the jurisdiction of the
court, service in person cannot be done.

(7) Illustration (Bar 1990)

Q While the trial was ongoing, the lawyer of A discovered that there was improper service of summons, the summons having
been sent by registered mail. He filed a motion to dismiss on the ground that the court had not acquired jurisdiction over the
person of A. Should the said motion be granted? Explain your answer.
A The motion should not be granted. The defense of lack of jurisdiction over the person of the defendant should have been
raised either in a motion to dismiss or as an affirmative defense in the answer. Failure to raise the objection is a waiver of the
defense (Sec. 1, Rule 9, Rules of Court).

(8) Distinction between a question of law and a question of fact (Bar 2004)

o The issue in a case may be either one of law or one of fact. There is a question of law when the doubt or difference arises as
to what the law is on a certain set of facts. There is a question of fact when the doubt or difference arises as to the truth or
falsehood of the alleged facts.
o For a question to be one of law, the same must not involve and examination of the probative value of the evidence presented
by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of
circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. Thus,
the test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the
same; rather it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in
which case it is a question of law; otherwise, it is a question of fact.
o Where the threshold issue is whether certain paragraphs in an agreement are void for being contrary to law or public policy,
certainly, it is obvious that the issue is a question of law.

(9) Illustration (Bar 2004, No. 1)

Q In a complaint for sum of money filed before the MM RTC, plaintiff did not mention or even just hint at any demand for
payment made on defendant before commencing suit. During the trial, plaintiff duly offered Exh. A in evidence for the stated
purpose of proving the making of extrajudicial demand on the defendant to pay P500K, the subject of the suit. Exh. A was a
letter of demand for defendant to pay said sum of money within ten (10) days from receipt, addressed to and served on
defendant some two (2) months before suit was begun. Without objection from defendant, the court admitted Exh. A in
evidence. Was the courts admission of Exh. A erroneous or not?
A The admission of Exh. A was not erroneous. Under Sec. 5 of Rule 10, when issues not raised in the pleadings are tried with
the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.
When Exh. A was offered in evidence without objection from the defendant, it is as if the matter of demand was raised by
the parties in the pleadings. The pleading may be amended to conform to the evidence but the failure to so amend does not
affect the result of the trial of these issues because the pleadings are deemed impliedly amended to embody the issues tried
with the consent of the parties (Sec. 5, Rule 10, Rules of Court).

(10) Illustration (Bar 2004, No. 4)

Q During the trial, plaintiff was able to present, without objection on the part of the defendant in an ejectment case, evidence
showing that the plaintiff served on defendant a written demand to vacate the subject property before the commencement
of the suit, a matter not alleged or otherwise set forth in the pleadings on file. May the corresponding pleading still be
amended to conform to the evidence? Explain.
A The pleading may be amended to conform to the evidence. Even if the making of the written demand was not alleged in the
pleading, it is as if it was raised in the pleadings of the parties because it was presented in evidence without objection from the
adverse party (Sec. 5, Rule 10, Rules of Court).

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(11) Illustration (Bar 2008)

Q F brought an action in the MeTC of Pasay City against M pleading two causes of action. The first was a demand for the
recovery of physical possession of a parcel of land situated in Pasay City with an assessed value of P40K; the second was a
claim for damages of P500K for Ms unlawful retention of the property. M filed a motion to dismiss on the ground that the total
amount involved, P540K, is beyond the jurisdiction of the MeTC. Is M correct?
A M is not correct. The action to recover possession of a real property is a real action and jurisdiction therefore is determined by
the assessed value of the property if the basis of the suit is ownership. Since the assessed value is P40K, the MeTC of Pasay City
has jurisdiction. The amount of P540K is not to be considered in determining the jurisdictional amount; the damages claimed
being merely a consequence of the alleged unlawful retention of the property. Besides, damages is not included in the
computation of the jurisdictional amount under Sec. 33 of B.P. 129.

Note: There is only a single cause of action. The claim of P540K by way of damages is merely incidental to the main claim because
it is a result of the unlawful retention of the property. Note further that the action may even be one for unlawful detainer, an
action within the jurisdiction of MeTC.

(12) Cases subject to Summary Procedure (Bar 2004; 1995; 1993; 1991; 1989; 1988)

o The civil cases subject to Summary Procedure are:
(a) Forcible entry and unlawful detainer cases (Bar 1995); and
(b) All other claims where the total claim does not exceed P100K (outside Metro Manila), or does not exceed P200K (within
Metro Manila), exclusive of interests and costs. Probate proceedings are not covered by the rule on Summary Procedure
even if the gross value of the estate does not exceed P100K or P200K (1991 Revised Rules on Summary Procedure as
amended by A.M. 02-11-09-SC, effective 11-25-2002).

(13) Illustration (Bar 2000)

Q A brings an action in the MeTC of Manila against B for the annulment of an extrajudicial foreclosure sale of real property with
an assessed value of P50K located in Laguna. The complaint alleged prematurity for the reason that the mortgage was not yet
due. B timely moved to dismiss the case on the ground that the action should have been brought in the RTC of Laguna.
Decide with reasons.
A The motion to dismiss is meritorious and must be granted. An action to annul an extrajudicial foreclosure sale of real property
is an action incapable of pecuniary estimation. The subject matter is one other than the recovery of money. It is also one
which does not involve the primary issue of title to, recovery of possession, or recovery of ownership of real property and
hence not a real action which requires a consideration of the assessed value of the land. The main issue is whether or not the
foreclosure sale is valid.

Note: An action incapable of pecuniary estimation is one which falls under the jurisdiction of the RTC [Russel vs. Vestil, 304 SCRA
739; Sec. 19 (1), B.P. 129].

(14) An action for partition of real property located in Taytay, Rizal and with an assessed value of P20K, the resolution of which
involves the determination of hereditary rights, is an action incapable of pecuniary estimation, and thus should be filed in the
RTC (Suggested Answer, UP Law Center, Bar 2000).

Alternative Answer: An action for partition is one which involves interest in real property. Hence, jurisdiction will be dependent on
the assessed value of the property.

(15) An action for specific performance to compel the defendant to execute a deed of conveyance covering a parcel of land
with an assessed value of P19K is an action incapable of pecuniary estimation and is cognizable by the RTC because the main
issue is whether or not there is a right to compel specific performance (Suggested Answer, UP Law Center, Bar 2003).

Alternative Answer: Where the primary purpose of the action is to recover or obtain ownership of the real property, the action is
one affecting title to real property and is therefore a real action. In a real action, jurisdiction is determined by the assessed value of
the property and hence because the assessed value under the facts is P19K, the action is within the jurisdiction of the MTC.

(16) Where however, the demand is in the alternative, as in action to compel the defendant to deliver the house by
completing its construction or to pay the sum of P644.31, the action is one that is capable of pecuniary estimation (Cruz vs.
Tan, 87 Phil. 627). Thus, an action for specific performance or in the alternative, for damages in the amount of P180K is one
capable of pecuniary estimation. Here, the amount of damages is determinative of jurisdiction [Bar 1997, No. 1(a)].

(17) An action for writ of injunction is within the jurisdiction of the RTC. It is an action incapable of pecuniary estimation [Bar
1997, No. 1(b)].

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(18) An action for the replevin of a motorcycle valued at P150K is capable of pecuniary estimation. The basis of jurisdiction is
the value of the personal property sought to be recovered. The amount of P150K falls within the jurisdiction of the MTC [Bar
1997, No. 1(c)].

(19) An action for interpleader is capable of pecuniary estimation. If the subject of interpleaded is real property, then the
jurisdictional amount is determined by the assessed value of the land. If it be personal property, then the value of the property.
Hence, an action for interpleader to determine who between the defendants is entitled to receive the amount of P190K from
the plaintiff is within the jurisdiction of the MTC (Bar 1997; Makati Development Corporation vs. Tanjuatco, 27 SCRA 401).

(20) Illustration (Bar 2005)

Q May the aggrieved party file a petition for certiorari in the Supreme Court under Rule 65 of the 1997 Rules of Civil Procedure
instead of filing a petition for review on certiorari under Rule 45 for the nullification of a decision of the Court of Appeals in the
exercise of its original or appellate jurisdiction?
A A petition for certiorari under Rule 65 is not the advisable remedy. In order to nullify a decision of the Court of Appeals, the
more appropriate remedy is to file a petition for review on certiorari under Rule 45 which shall raise only pure questions of law
(Sec. 1, Rule 45, Rules of Court).

(21) Actions for damages and actions to collect a sum of money must be filed in either the residence of the plaintiff or the
residence of the defendant at the election of the plaintiff. Such actions are personal actions. Hence, an action for the collection
of P1M filed by a resident of Lingayen, Pangasinan against a resident of San Fernando, La Union may be filed in either place at
the option of the plaintiff (Bar 1998).

(22) Actions to recover ownership of real property are real actions and must be filed in the place where the real property is
located. Actions for unlawful detainer, forcible entry, and accion publiciana are real actions and must be likewise be filed in the
place where the subject property is situated. Thus, an action to recover possession of a leased real property and for the
payment of accrued rentals, must be filed in Davao City where the property is located because the action is a real action (Bar
1991; Bar 1997).

(23) Illustration (Bar 2008)

Q A, a resident of Quezon City, sued B, a resident of Makati City before the RTC of Quezon City for the reconveyance of two
parcels of land situated in Tarlac and Nueva Ecija, respectively. May her action prosper?
Q Assuming that the action was for foreclosure of mortgage of the same parcels of land, what is the proper venue for the
action?
A The action will not prosper because the venue was improperly laid. An action for reconveyance is a real action, the subject
matter thereof being interest in real property. The venue of a real action is the place where the real property is situated, i.e.
Tarlac and Nueva Ecija.
A An action for foreclosure is a real action; hence the venue is also the place where the property mortgaged is situated.

(24) Illustration (Bar 1997)

Q P resides in Manila. D resides in Quezon City. The written contract stipulates that any suit arising from a violation of the
contract shall be filed only in Pasay City. P sues D for damages arising from an alleged breach of contract. The action was filed
in Quezon City. Is the venue improper?
A The venue is improper. The stipulation to file the action in Pasay is restrictive and therefore has the effect of making Pasay City
the sole venue of the action. If the stipulation provides, shall be filed in Pasay City, without any restrictive language employed
in the agreement, the filing of the complaint in Quezon City would still be procedurally proper because the stipulation merely
operates to add Pasay City to the regular venues of Manila and Quezon City.

(25) Illustrations (Bar 1997)

o If X, a resident of Angeles City, borrowed P300K from A, a resident of Pasay City under an agreement that stipulated that the
parties agree to sue and be sued in the City of Manila, the plaintiff is not precluded from filing the action either in Angeles
City, or Pasay City, or even Manila. The stipulation on venue is not an exclusive stipulation and its effect is merely to add Manila
as an additional venue. The same conclusion would be reached had the stipulation been: Venue for all suits arising from this
contract shall be the courts in Quezon City. The action may be filed also either in Angeles City or Pasay City. It may also be
filed in Quezon City.
o If the parties above failed to stipulate on the venue in the loan agreement, the action may be filed either in Angeles City or
Pasay City at the election of the plaintiff. The venue of a personal action such as one to recover a debt under a loan of money
is a personal action.


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(26) Venue distinguished from jurisdiction (Bar 2006)
o Venue is differentiated from jurisdiction as follows:
(a) Venue is the place where the case is to be heard or tried; jurisdiction is the authority to hear and determine a case.
(b) Venue is a matter of procedural law; jurisdiction is a matter of substantive law.
(c) Venue establishes a relation between plaintiff and defendant, or petitioner and respondent; jurisdiction establishes a
relation between the court and the subject matter.
(d) Venue may be conferred by the act or agreement of the parties; jurisdiction is conferred by law.
(e) Venue is not a ground for motu proprio dismissal (except in cases subject to Summary Procedure; Sec. 4, Rule on
Summary Procedure); while lack of jurisdiction over the subject matter is a ground for a motu proprio dismissal.

(27) Illustration (Bar 1989)

Q Isagani drove the car of his father, Pedro and left it in the parking area of the Fairview Motel where he was a guest. Isagani
entrusted the key of the car to a security guard hired by the Prime Resort Company, the owner/operator of the motel. Emilio,
pretending to be the brother of Isagani, got the key from the security guard and drove the car away. The car was never
recovered. Later, Pedro sued Prime Resort for the value of the carnapped vehicle plus damages. Prime Resort sets up the
defense that Pedro has no interest in the case, hence has no cause of action, as he was not the guest of the motel, but his
son, Isagani. Is the defense tenable?
A The defense is not tenable. The cause of action of Pedro arises from his rights as owner. He is therefore the real party-in-
interest in the suit for damages.

(28) Illustration (Bar 1988)

Q A complaint entitled, A as Attorney-In-Fact for X, plaintiff, versus B, defendant was filed to recover a car in the possession of B.
As Power of Attorney expressly authorized him (A) to sue for the recovery of the car. B files a motion to dismiss for lack of
capacity to sue. Decide the motion. Explain.
A The motion must be denied. The ground relied upon is erroneous. Under the Rules of Court, an action must be prosecuted in
the name of the real party-in-interest and under the facts of this case, this party is X. The fact that the suit is in the name of A as
attorney-in-fact does not mean that A has no legal capacity to sue. Being a natural person, A possesses such legal capacity.
However, since he is not the owner of the car sought to be recovered, the suit cannot be prosecuted in his name. He is not
the real party-in-interest. The motion to dismiss should have been based on a failure to state a cause of action.

(29) Illustration (Bar 1996)

Q A, filed an action against B, driver of the truck, C, owner of the truck, and D, insurer of the truck, for damages when the truck
rammed his car. A and D entered into a compromise agreement upon an amount lower than that sued upon by A against all
three defendants. Accordingly, the court dismissed the case against D. B and C moved to dismiss the case against them on the
ground that, being indispensable parties under a common cause of action, non-inclusion of D would not make the case
prosper. Are the defendants indispensable parties? How would you resolve the motion?
A The motion should be denied. B and C are not indispensable parties in relation to D and vice-versa. The cause of action
against B and C is based on quasi-delicts or culpa aquiliana, while the cause of action against D is based on the contract of
insurance. A dismissal of the case against D will not affect the case against B and C.

(30) Illustrations (Bar 1999)

o Upon receipt of the notice of death, the court shall determine whether or not the claim is extinguished by such death. If the
claim survives, the court shall order the legal representative or representatives of the deceased to appear and be substituted
for the deceased within thirty (30) days from notice (Sec. 16, Rule 3, Rules of Court). The substitution of the deceased would
not be ordered by the court in cases where the death of the party would extinguish the action because substitution is proper
only when the action survives (Aguas vs. Llamas, 5 SCRA 959).
o Service of summons is not required to effect a substitution. Nothing in Sec. 16 of Rule 3 mandates service of summons. Instead
of service of summons, the court shall, under the authority of the same provision, order the legal representative of the
deceased to appear and be substituted for the said deceased within thirty (30) days from notice.
o By virtue of the same rule, it is significant to remember that it is not the amendment of the pleading, but the order of
substitution and its service that effects the substitution of the deceased by his representative or heir.

(31) Actions for the recovery of money, arising from a contract, express or implied, are not extinguished by the death of the
defendant (Sec. 20, Rule 3, Rules of Court; Bar 2000).

Note: If the action does not survive (like the purely personal actions of support, annulment of marriage, and legal separation), the
court shall simply dismiss the case. It follows then that substitution will not be required.

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(32) There is no class suit in an action filed by four hundred residents initiated through a former mayor, to recover damages
sustained due to their exposure to toxic wastes and fumes emitted by the cooking gas plant of a corporation located in the
town. Each of the plaintiffs has a separate and distinct injury not shared by other members of the class. Each supposed plaintiff
has to prove his own injury. There is no common or general interest in the injuries allegedly suffered by the members of the
class (Bar 1994).

(33) There is no class suit in an action for damages filed by the relatives of the fatalities in a plane crash. There is no common or
general interest in the injuries or death of all passengers in the plane. Each has a distinct and separate interest which must be
proven individually (Bar 1991).

(34) A non-stock corporation may not institute in behalf of its individual members for the recovery of certain parcels of land
allegedly owned by its members and for the nullification of the transfer of certificates of title issued in favor of defendants. The
corporation being an entity separate and distinct from its members has no interest in the individual property of its members
unless transferred to the corporation. Absent any showing of interests, a corporation has no personality to bring an action for
the purpose of recovering property, which belongs to the members in their personal capacities. Moreover, a class suit does
not lie in actions for the recovery of property where several persons claim ownership of their respective portions of property,
as each one could allege and prove his respective right in a different way for each portion of the land, so they cannot all be
held to have identical title through acquisitive prescription. [Sulo ng Bayan, Inc. vs. Araneta (72 SCRA 347); Bar 1978].

(35) Illustration (Bar 2005)

Q Distinguish a derivative suit from a class suit.
A A derivative suit is a corporate law concept which is filed by a stockholder in behalf of the corporation to protect the interests
of the latter and is asserted because of the failure of the Board of Directors, deliberate or otherwise, to act in protection of the
corporation [Blacks 5
th
Ed. 399; Lim vs. Lim-Yu (352 SCRA 216)]. A class suit is a procedural device availed of by persons having
a common or general interest in a subject matter and such persons are so numerous that it would be practicable to join all of
them. The suit is filed by a person or by a few in behalf of himself and all the members of his class (Sec. 12, Rule 3, Rules of
Court).



































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