1.

The actions that service of summons by publication is allowed are actions

in rem or quasi in rem and action in personam. The latter however is
admissible only in the following instances:
a.)Service upon defendant whose identity or whereabouts are
unknown.
b.) Extraterritorial service upon a non-resident defendant.
c.)Service upon a resident temporarily out of the Phils. (Rule 14)

2. No, the court was not correct. The Rule authorizes summons by
publication on any action wherein service upon defendant whose identity
or whereabouts are unknown. (Rule 14 Sec.14 )

3. Voluntary Appearance under the Rule means any appearance of the

defendant in the court where the action is pending provided he does not
question the court's jurisdiction over his person.

4. Special Appearance is an appearance for specific purpose of

questioning personal jurisdiction or the court's subject matter jurisdiction.
No, the 1997 Rules of Civil Procedure have eliminated such need since the
inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the defendant's person shall not be deemed a voluntary
appearance. (Rule 14 Sec. 20 )

5. 5.1 Yes, the summons was validly served on C considering that he

voluntarily appeared in court to file a verified answer. (Rule 14 Sec. 20)
5.2 If I were the judge I would not grant T's motion. As ruled by the SC,
defendant's answer should be admitted where it was filed before
he had been declared default as default judgment are generally
disfavored. (141 SCRA 451)

6. Motion is an application for relief other than by a pleading.(Rule 15 Sec.1)

7. Yes. The Rule mandates that all motions shall be in writing except those
made in open court or in the course of a hearing or trial. (Rule 15 Sec. 2 )

8. A motion may either be litigious or non-litigious. A litigious is one which the

court may not act upon without prejudicing the rights of the adverse
party. A non-litigious motion is one which the court may act upon without
prejudicing the rights of the adverse party.
9. 1. Motion for reconsideration
2. Motion to dismiss
3. Motion to declare defendant in default
4. Motion for execution

10. 1. Motion for extension of time to file an answer

2. Motion for.postponement
3. Motion for extension of time to file record on appeal 4. Motion to
set case for pre-trial

11. A motion brought for the benefit of one party only, without notice to and
right to challenge by an adverse party. A motion for application for relief
made by the movant in the absence of the other. (Steven Gifis, law
dictionary 76). A motion may be brought ex parte because the other
party would not be prejudiced thereby as in a motion to set case for pre-
trial or where the efficacy of the relief sought would be compromised if
notice were given as in an ex parte motion for the issuance of a writ of
preliminary attachment (S2 R57) or a temporary restraining order (S5 R58).

12. The motion is a mere scrap of paper. It has no legal effect and does not,
for instance, suspend the running of the reglementary period.

13. Yes. A motion for reconsideration without a proper notice of hearing is pro
forma, a mere scrap of paper which does not toll the period to appeal.
The notice of hearing should set the time and the place of the hearing.
Hence upon the expiration of the 15-day period to appeal, the
judgement of the MTC became final and executory.

14. No. Where the failure to comply with the rule has not prejudiced the
adverse party, a liberal construction of the rule is in order. Thus where the
hearing on the motion for reconsideration was postponed and the
adverse party was later given an opportunity to oppose the motion, the
motion's defect was cured.

15. It shall not be acted upon by the court. (S6, R15). Under the old S6 R15, the
court nonetheless may act upon the motion "if it is satisfied that the rights
of the adverse party or parties are not affected." It is submitted that the
court retains such discretion to act upon the motion, especially where the
adverse party did in fact receive the motion.

16. The rule that a motion attacking a pleading, order, judgment, or

proceeding shall include all objections then available, and all objections
 not so included shall be deemed waived. (S8 R15). Expected from this rule
are objections based on subject-matter jurisdiction, res judicator, lis
pendent, and prescription as provided for in S1 R9.

17. No, as to the H argument that the February 21, 2002 Decision of RTC is null
and void for having been issued without a trial, it is a mere afterthought
which deserves scant consideration. The court notes that the H did not
object to the absence of a trial when it sought a reconsideration of the
February 21, 2002 Decision. Instead, H raised the lone argument that it
should not be compelled to release the title to S because A has yet to
deliver to H the sum of P272, 000.00. Under the Omnibus Motion Rule
embodied in Section 8 of Rule 15 of the Rules of Court, all available
objections that are not included in a party's motion shall be deemed
waived.

18. Answer:
A. Lack of subject-matter jurisdiction.
B. Res judicata (bar by prior judgment)
C. Lis pendens
D. Prescription
E. Lack of personal jurisdiction.
F. Improper venue
G. Plaintiff has no legal capacity to sue.
H. The pleading fails to state a cause of action.
I. Condition precedent for filing the claim not complied with.
J. The claim is unenforceable under the statute of frauds.
K. The claim has been paid, abandoned, waived, or otherwise
extinguished.

19. Within the time for but before filing the answer. However, if the ground of
the motion to dismiss is lack of subject-matter jurisdiction, res judicata, lis
pendens, or prescription, and such grounds appear from the pleadings or
evidence on record, the motion to dismiss may be filed even after an
answer had been filed.

20. Such grounds which are not so pleaded are deemed waived. Exception:
Jurisdiction over the subject matter, res judicata, lis pendens, and
prescription. S1 R9
21. A. No, there should be a motion to dismiss filed by the defendant. The
exceptions are: 1. when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the subject matter, or that
the action is barred by res judicata, or lis pendens, or prescription, the
court shall dismiss the claim. (S1 R9)
B. In ejectment cases and in cases governed by the Rule on Summary
Procedure, the court may, from an examination of the allegations in
the complaint and such evidence as may be attached thereto, dismiss
the case outright on any of the grounds for the dismissal of a civil
action which are apparent therein. (Section 4, Rule on Summary
Procedure; S5 R70)

22. No. Provided that it states a cause of action, a complaint may not be
dismissed on the ground alone that its allegations are vague and
indefinite. The defendant’s remedy is to move for a bill of particulars or
avail of the proper mode of discovery.

23. This means either that the plaintiff does not have the necessary
qualifications to appear in the case because he is not in full exercise of his
civil rights or when he does not have the character or representation
which he claims.

24. The ground for motion to dismiss is failure to state a cause of action.

25. No. An unlicensed foreign corporation not doing business in the Philippines
can sue before Philippine Courts. The transactions between Z and G
cannot be considered as “doing business” in the Philippines. An essential
condition in order to be considered doing business in the Phils is the actual
performance of specific commercial acts within the Phil Territory for the
plain reason that the Phils has no jurisdiction over commercial acts
performed in foreign territories. Moreover the transactions are simply
export transactions and are thus not considered within the ambit of”
doing business “in the Phils.

26. A pleading fails to state a cause of action when it contains no allegation

that there is an act or omission by the defendant which violated the right
of the plaintiff.

27. Yes. A complaint which contains a premature cause of action may be

dismissed for failure to state a cause of action.
28. Failure to state a cause of action relates to the failure of the allegations of
the pleading to state a cause of action, while lack of cause of action
relates to failure of proof, which is the plaintiff’s failure to prove by
evidence his allegations relating to his cause of action.

29. No, what defendant merely makes is a hypothetical admission. This simply
means that for purposes of determining whether the complaint states a
cause of action, the defendant is deemed to admit the complaint’s
allegations but only for the limited purpose of determining whether it
sufficiently states a cause of action.

30. No. The SC held that the CA acted correctly in reversing the order of
dismissal since A in filing the motion to dismiss had hypothetically admitted
the allegations in the complaint that the conveyances were fraudulent
and illegal and that it was not an innocent purchaser for value.

31. Yes but the court cannot receive evidence aliunde as it must resolve the
motion solely on the basis of the allegations in the complaint and the
annexes thereto.

32. 1. Identity of parties

2. Substantial identity in the cause of action and relief sought
3. The result in one action is determinative of the second in any event and
regardless of which party prevails.

33. No. In a dismissal on the ground of lis pendens, there is no requirement

that there be a prior pending action, it being sufficient that there be a
pending action.

34. If I were E’s counsel, I would file a motion to dismiss on the ground that C’s
claim against E has been waived. Under S9 R3, the failure to comply with
the court’s order for the inclusion of a necessary party, without justifiable
cause, shall be deemed a waiver of the claim against such party.

35. Yes, more particularly under S1(h) R16.

36. No, the dismissal was not proper. B and d were strangers to each
other.the family code does not apply since it is not exclusivr for family
members.
37. In the case of Versoza v. Versoza, “Thus was it made clear that a failure to
allege earnest but failed efforts at a compromise in a complaint among
members of the same family, is not a jurisdictional defect but merely a
defect in the statement of a cause of action.”
Article 2035 of the Family Code states the following conditions in which no
valid compromise is possible on the issues stated, thus, showing of previous
efforts to compromise would be superfluous.

38. Yes, because judicial settlements for estate, under Article 2035 of the Civil
Code, is not a ground where compromise is not necessary to be alleged.

39. No, the motion to dismiss should not be granted. The fact that they did try
to go to the barangay for conciliation efforts justifies the act as earnest
efforts on both parties to compromise.

Yes, my answer would still be the same.

40. Yes, the court is correct in denying B’s motion to dismiss the complaint on
the ground of failure to exert earnest effort for compromise. Under 2035 of
the civil code, no compromise upon the following question(s) shall be
valid: (6) Future legitime.

41. No,according to rules of court, in the hearing for motion to dismiss the
parties shall submit their evidence on questions of fact.
42. No, the court did not properly exercised its discretion in acting as it did.
First, the court should have not acquired the jurisdiction over the action
because in the new guidelines for small claims, MTC should have
jurisdictions on claims up to 400k excluding fees and interests. Secondly,
the motion for reconsideration should have been granted since there was
no proper exercise of court’s discretion in this case.

43. After the hearing, the court may dismiss the action or claim, deny the
motion, or order the amendment of the pleading. (S3 R16)

44. Yes, the Court need not issue its resolution immediately after the hearing
but may for a justifiable reason defer the resolution as when the court
needs time to study the matter. The court shall however not defer the
resolution for the reason that the ground relied upon is not indubitable. (S3
R16). In other words, the court is no longer allowed to defer the resolution
until the trial.
45. (B) Lack of jurisdiction over the subject matter.

46. Up to July 8. When D filed his motion to dismiss on March 10, he was
entitled to 6 days within which to file his answer. The day of the act
causing the interruption (March 10) is excluded from the computation
and added to the remaining 6days for a total of 7 days. July 1 + 7 days =
July 8. (see S2 R22)

47. Up to July 6. Sec. 4, Rule 16 states that the movant is entitled to not less
than 5 days in any event computed from receipt of the notice of denial.

48. Up to July 16. Under Sec. 4 of Rule 16, the movant shall file his answer
within the period prescribed by Rule 11 counted from service of the
amended pleading. D thus has 15 days from July 1 or up to July 16 within
which to file his answer.

49. D should file an answer within 15 days since the amendment rendered
moot and academic the motion to dismiss. But where the amendment
would not moot the motion to dismiss, as where the ground therefore is
failure to submit a certificate of non-forum shopping, D can wait for the
resolution of the motion to dismiss.

50. Yes, except if the ground for the dismissal is prescription, unenforceability
of the claim, res judicata, and extinguishment of the claim. Plaintiff also
has to pay a new the docket and filing fees.

51. Yes. If no motion to dismiss has been filed, any of the grounds for dismissal
provided for in S1 R16 may be pleaded as an affirmative defense in the
answer.

52. Yes. This is different from the 1964 Rules wherein improper venue may only
be raised in a motion to dismiss.

53. The court has two options:

The court may in its discretion hold a preliminary hearing on the
affirmative defense as if a motion to dismiss had been filed. (S6 R16). Or
the court may choose to defer the resolution of the affirmative defense
until after the trial. In other words, the issue on the affirmative defense shall
be litigated during the trial proper.
54. Yes, subject to the trial court's discretion. While under S6 R16 a preliminary
hearing on the affirmative defense may be had only if no motion to
dismiss had been filed, this rule does not apply where although a motion
to dismiss had been filed, the trial court did not categorically resolve it but
merely deferred resolution thereof.

55. A. Yes, after all the order of denial of the motion to dismiss is merely
interlocutory and cannot amount to res judicata. If a ground is raised in a
motion to dismiss and categorically denied, such ground can no longer
be raised as an affirmative defense in the answer. (Spouses Rasdas v.
Estenor, G.R. no. 157605, 13 December 2005, Tinga, J.)

B. The general rule is that the trial court cannot conduct a preliminary
hearing on the affirmative defense if such was raised as a ground for a
motion to dismiss and categorically denied by the trial court. An
affirmative hearing may only be conducted if no motion to dismiss was
filed. Here a motion to dismiss was filed and categorically denied by the
trial court. Hence, the issue of res judicata should have been litigated
during the trial proper. There is an exceptional circumstance in this casd,
however, which justifies a deviation from the general rule: It is evidently
clear that the second action is barred by res judicata. D built
improvements at the time he already knew that he did not own the land.
Hence, the Supreme Court overlooked the procedural error of the trial
court and upheld its dismissal of the second action on a preliminary
hearing.

56. D may no longer raise the defense of remission or condonation under S1

(h) R16. Under S8 R15, a motion attacking a pleading, order, judgement,
or proceeding should include all objections then available and objections
not so included are deemed waived. Likewise S1 R9 states that defenses
and objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. Since remission was not raised by D in his motion to
dismiss it is deemed waived. D may still raise the defense of fraud in his
answer since fraud is not a ground for a motion to dismiss and thus could
not have been set up therein. Likewise D may still raise the defense of
prescription since the omnibus motion rule is subject to S1 R9 which
provides that the defense of prescription may still be raised even if not set
up in the motion to dismiss or answer. D may still raise the defense of
 payment in his answer but the same has to be litigated during the trial
proper not in a preliminary hearing.

57. The remedies of the plaintiff in case the MTD is granted are as follows:
A) File a motion for reconsideration, whether in regular or summary
procedure.
B.) Refule the complaint unless the ground of the dismissal is
prescription, unenforceability of the claim, res judicata, or
extinguishment of the claim.
C) Appeal from the order of dismissal, unless the dismissal is without
prejudice (S1R41).The Rules specifically mentioned 5 cases wherein
an order of dismissal is without prejudice;
1) S5R7 (forum shopping)
2) S1R17 (dismissal by the plaintiff upon notice)
3) S2R17 (dismissal by the plaintiff upon motion)
4) S3R17 (due to fault of plaintiff where court provides that
dismissal shall be without prejudice)
5) S5&6R18 (dismissal for plaintiff’s failure to appear at the pre-
trial or failure to file pre-trial brief where court provides that
dismissal is without prejudice)
D) File an amended complaint as a matter of right curing the defect so
long as the dismissal order has not yet become final.

58. The remedies of the defendant in case the MTD is denied are:
A) File a motion for reconsideration whether under the regular or
summary procedure.
B.) Proceed to trial and if he loses, appeal assign the failure to
dismiss as a reversible error.
C) File a special action for certiorari, prohibition, and mandamus
under R65 if the denial to the order of the dismissal is made with
grave abuse of description amounting to lack of excess of
jurisdiction. Note that this recourse is not available under the rule on
summary procedure and in ejectment cases.

59. Yes, either by filing of notice dismissal or a motion for dismissal.

60. 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 (S1R17).
61. Yes. The exceptions would be:
(a) If otherwise stated in the notice of dismissal;
(b) Under the two-dismissal rule. In these two instances, the dismissal
then is with prejudice.

62. The rule that the notice of dismissal would operate as an adjudication on
the merits of the plaintiff had once dismissed in a competent court an
action based on or including the same claim. Hence if plaintiff files a
complaint based on the claim subject of the second dismissal, the
defendant may move to dismiss on the ground of res judicata. Note that
the second dismissal is by notice while the first may be by notice or by
motion of the plaintiff.

63. None

64. A.
B. No. The two-dismissal rule would apply only if the second dismissal
was by notice. Here the second dismissal was by motion and hence
the dismissal would be governed by S2 R17 and not S1 R17. Since
the trial court did not provide in its order that the second dismissal
was with prejudice, then the dismissal would be without prejudice.

65. After the service upon the plaintiff of the answer or a motion for summary
judgment. In such case, the complaint shall not be dismissed save upon
approval of the court and upon such terms and conditions as the court
deems proper.

66. If a complaint is dismissed upon plaintiff’s motion, what happens to the

counterclaim pleaded by the defendant? If the counterclaim was
pleaded by the defendant after service upon him of the Plaintiff’s motion
for dismissal, the dismissal of the complaint shall likewise result in the
dismissal of the counterclaim.

67. It shall be without the prejudice unless otherwise specified in the order of
dismissal. Compare this with the dismissal upon plaintiff’s notice.

68. Class suit shall not be dismissed or compromised without the approval of
the court. The reason is for the court to protect the interests of the
members of the class.
69. a) Yes, While it is the sheriff’s duty to serve summons, the plaintiff
should also see to it that the sheriff complies with his duty. If he neglects to
follow up the matter with the sheriff or the court, the action may be
dismissed for failure to prosecute. (BAC Mfg. & Sales Corp. v. Court of
Appeals, G.R. No. 96784 2 August 1991).
b) Yes, The dismissal has no res judicata effect because the court
did not acquire jurisdiction over the Defendant’s person. Hence, the trial
court had no competence to dispose of the case on the merits and to
render a binding judgement (Republic Planters Bank v. Molina, 166 SCRA
39)

70. No, the ground for dismissal under S3 R17 is when the plaintiff fails to
appear on the date of the presentation of his evidence in chief, not his
failure to appear on defendant’s turn to present his evidence. The court
should simply consider the Plaintiff to have waived his right to object to
and/or cross-examine the witness presented.

71. No after all the plaintiff had already presented two witnesses ergo the
court may assume that said plaintiff waived further presentation of
evidence

72. The order of dismissal is invalid. All petitioners have said to already present
3 witnesses. The court should have just ordered that petitioner is deemed
to have waived further presentation of evidence and to have rested his
case

73. The remedies are - File a petition that said judgment, order or proceeding
be set aside -file a pleading stating and proving that there is an excusable
negligence with meritorious defense.

74. None

75. After the last pleading has been served and filed.

76. Yes it shall be the duty of the plaintiff to promptly move to ex parte that
the case be set for pre trial

77. No under S1R18 the ex parte motion to set the case for pre-trial is to be
made by the plaintiff after the last pleading however in this case the
 plaintiff fails to file a pleading ergo the branch clerk of court shall issue
only a notice for pre-trial (MBTC vs Fadcor)

78. No. Pre-trial is a mandatory. Of course in case of an adverse decision

against one of the parties, he cannot move for the setting aside of the
judgment since the termination of the pre-trial was made with his consent.
The judge however may be subjected to disciplinary action.

79. The matters that the court shall consider during the pre-trial are:
a. the possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution.
b. The simplification of the issues.
c. The necessity or desirability of amendments to the pleadings.
d. The possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof.
e. The limitation of the number of witness.
f. The advisability of a preliminary reference of issues to a
commissioner.
g. The propriety of rendering judgement on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be
found to exist.
h. The advisability or necessity of suspending the proceedings.
i. Such other matters as may aid in the prompt disposition of the action.

80. No. Service on the counsel is sufficient. The counsel is charged with the
duty of notifying the party represented by him.

81. Yes. The non-appearance of a party may be excused only if a valid cause
is shown therefore or if a representative shall appear in his behalf fully
authorized in writing to:
1. Enter into an amicable settlement;
2. Submit to alternative modes of dispute resolution; and
3. Enter into stipulations or admissions of facts and of documents.

82. The requirements for the validity of the authorization are:

A. It must be in writing.
B. It must be a special power of attorney.
C. In the case of a corporation, there must be a board resolution
specifically authorizing the representative to enter into matters
stated in S4 R18.
83. The failure of the plaintiff to appear when so required under S4 R18 shall
be a cause for dismissal of the action. The dismissal shall be with prejudice,
unless otherwise ordered by the court. A similar failure on the part of the
defendant shall be cause to allow the plaintiff to present his evidence ex
parte and the court to render judgment on the basis thereof.

84. No. The absence of counsel for defendants at pre-trial does not ipso facto
authorize the judge to declare the defendant as in default and order the
presentation of evidence ex parte. A show-cause order to the absent
counsel would have been the more cautious and reasonable course of
action under the circumstances.

85. Yes. The court may upon motion dismiss the complaint and allow the
defendant to present evidence on his counterclaim.

86. A pre-trial brief is a brief required to be filed by the parties before the pre-
trial and containing, among others:
(1) amicable settlement or alternative modes of dispute resolution;
(2) stipulation of facts;
(3) issues;
(4) exhibits;
(5) discovery procedures or referral to commissioners; and
(6) witnesses.

87. It should be filed with the court and served on the adverse party, in such
manner as shall ensure their receipt thereof at least 3 days before the
date of the pre-trial.

88. It shall have the same effect as failure to appear at the pre-trial.

89. A pre-trial order is the order issued by the court upon the termination of
the pre-trial which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed to the
pleadings, and the agreements or matters considered. Should the action
proceed to trial, the order shall explicitly define and limit the issue to be
tried. The contents of the pre-trial order shall control the subsequent
course of the action, unless modified before trial to prevent manifest
injustice.

90. It is a proceeding in a suit by which a third person with a legal interest

therein is allowed, with leave of court, to make himself a party thereto.
91. No. D and E had waived the ground of improper venue when they did not
raise the same in their answer. An intervention cannot legally alter the
nature of the action and the issues joined by the original parties.

92. 1. 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 parties.
2. A person who is so situated as to be adversely affected by a distribution
or other disposition of the property in custody of the court or of an officer
thereof.
Leave of court is necessary in order that the third person may be allowed
to intervene in the action.

93. B IT WOULD ENLARGE THE ISSUE AND expand the scope of the remedies

94. 1. If the defending party in an action for annulment or declaration of

nullity of marriage or for legal separation fails to answer, the court shall
order the prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not fabricated.
(S3[e] R9)
2. Where the civil action for recovery of civil liability is instituted in the
criminal action pursuant to Rule 111, the offended party may intervene by
counsel in the prosecution of the offense. (S16 R110)
3. In a class suit, any party in interest shall have the right to intervene to
protect his individual interest. (S12 R3)

95. He shall file a motion for leave of court to intervene at any time before
rendition of judgment by the trial court. A copy of the pleading-in-
intervention shall be attached to the motion and served on the original
parties. (S2 R19)

96. No. A motion to intervene may not be filled after a judgment had been
rendered by the trial court. The third party may file a third-party claim.

97. A complaint-in-intervention if the intervenor asserts a claim against either

or all of the original parties, or an answer-in-intervention if he unites with
the defending party in resisting a claim against the latter.

98. No, the allowance is discretionary, that is why leave of court should be
sought. In exercising its discretion, the court shall consider whether or not
the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties, and whether or not the intervenor’s rights may
be fully protected in a separate proceeding. However, where the
intervenor is an indispensable party, the court must allow intervention.
 It is submitted also that under S12 R3, S3 (e) R9, and S16 R110, the court
must allow the intervention of the party-in-interest, the State and the
offended party, respectively.

99. No, intervention is a prohibited pleading under S13R70

100. within 15 days from notice of the order admitting the complaint-in-
intervention, unless a different period is fixed by the court

101. Yes, an order denying the motion for leave to intervene may be
appealed. The appeal period would be 30 days from notice of the order,
taken by filling a notice of appeal and a record on appeal. This is
because the appeal from the order denying intervention is a separate
appeal. However, if at the time it denied the motion for leave, the court
had already rendered judgement and has thus disposed of the case, the
appeal period would be 15 days taken by filling a notice of appeal alone.

102. under S2R20, the assignment of cases to the different branches shall
be done exclusively by raffle.

103. cases falling within the jurisdiction if the special commercial court it
family court would be assigned to these courts without need of raffle,
unless two or more branches have been designated as special courts, in
which case it shall be raffled among them

104. Subpoena is a process directed to a person requiring him to attend

and to testify at the hearing or the trial of an action, or at any
investigation conducted by a competent authority, or for the taking of his
deposition. in this case it is called a subpoena ad testificandum. The
subpoena may also require the person to bring with him any books,
documents, or other things under his control, in which case it is called a
subpoena duces tecum.

105. The subpoena may be issued by:

a. The court before which the witness is required to attend.
b. The court of the place where the deposition is to be taken.
c. the officer or the body authorized by law to do so in connection
with investigations conducted by said officer or body
d. Any Justice of the Supreme Court or of the Court of Appeals in any
case or investigation pending with in the Philippines.
106. 1) An investigating prosecutor for purposes of preliminary
investigation s3(a) r11
2) Commissioner s3 r32
3) member of the investigation staff of the NBI in relation to
investigations conducted by him. S5(b) RA no.157.

107. When application for a subpoena to a prisoner is made, the judge

or officer shall examine and study carefully such application to determine
whether the same is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetual or life
imprisonment and who is confined in any penal institution shall be brought
outside the said penal institutions for appearance or attendance in any
court unless authorized by the Supreme Court (s2r21)

108. A subpoena shall state the name of the court and the title of the
action or investigation, shall be directed to the person whose attendance
is required and in the case of a subpoena duces tecum, it shall also
contain a reasonable description of the books, documents or things
demanded which must appear to the court prima facie relevant.

109. The court may quash a subpoena duces tecum upon motion
promptly made and in any event, or before the time specified therein if:
1) it is unreasonable and oppressive,
2) the relevancy of the books, documents or things does not
appear.
3) the person in whose behalf the subpoena is issued fails to
advance the reasonable cost of the production thereof, or
4) the witness fees and kilometrage allowed by the rules of court
were not tendered when the subpoena was served.

110. 1) the court may quash a subpoena and testificandum on the

ground that the witness is not bound thereby. Under s10 r21 a witness is not
compelled to attend by virtue of the service of a subpoena if he resides
more than 100kilometers from the place where he is to testify by the
ordinary course of travel.
2) the witness fees and kilometrage allowed by the rules of court
were not tendered when the subpoena was served.
111. Service of subpoena shall be made in the same manner as personal
or substituted service of summons. The original shall be exhibited and a
copy thereof delivered to the person on whom it is served. Tendering to
him the fees for one day’s attendance and the kilometrage allowed by
rules, except that when a subpoena is issued by or on behalf of the
republic of the Philippines or an officer or agency thereof, the tender
need not be made. (s6r21)
NOTE: that a person present in court before a judicial officer may
be required to testify as if he were in attendance upon a subpoena issued
by such court or officer. (s7r21).

112. No, nothing in the rules of court on service of subpoena states that
service of subpoena may be made through party's counsel. The rules are
clear that the service of a subpoena shall be made in the same manner
as personal or substituted service of summons.
NOTE: however that under s3r14, the court may for justifiable reason
authorize any suitable person to serve the summons.

113. In case of failure of a witness to attend , the court or judge issuing

the subpoena, upon proof of the service thereof and of the failure of the
witness, may issue a warrant to the sheriff of the province, or his deputy, to
arrest the witness and bring him before the court or officer where his
attendance is required. (S8 R21). This is also known as a bench warrant
(STEVEN GIFIS, LAW DICTIONARY 21 [1975]). The court also has the power
to punish for indirect contempt any person who fails to obey without
adequate cause a subpoena served upon him. (S9 R21, S3 [f] R71).

114. It is the right of a witness not to be compelled to attend in court

under a subpoena if the witness resides more than 100 kilometers from his
residence to the place where he is to testify by the ordinary course of
travel. (1 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 300 [7th
rev. ed., 3rd printing, 1999]).

115. The remedy of the party is to take the deposition of the witness. He
should serve to every other party to the action a notice to take the
deposition of the witness pursuant to S15 or S25 R23.

Under S4(c) R23, the deposition of a witness, whether or not a party,

may be used by any party for any purpose if the court finds that the
witness resides at a distance more than 100 kilometres from the place of
trial or hearing. Proof of service of a notice to take a deposition, as
provided in S15 and S25 of R23, shall constitute sufficient authorization for
 the issuance of a subpoena for the persons named in said notice by the
clerk of court of the place in which the deposition is to be taken. The clerk
shall not, however, issue a subpoena duces tecum to any person without
an order of the court. (S2[b] & S5 R21).

116. No. (People v. Montejo, G. R. L-24154, 31 October 1967).

117. The day of the act or event from which the designated period of
time begins to run is to be excluded and the date of performance
included. If the last day of the period, as thus computed, falls on a
Saturday, a Sunday, or legal holiday in the place where the court sits, the
time shall not run until the next working day. (S1 R22).
Thus, if a defendant is served with summons on June 1, he has until
June 16 (June 1 + 15 = 16) within which to file his answer. If the defendant
receives a copy of the adverse decision on October 1, he has until
October 16 within which to file a notice of appeal.

118. No. Administrative Circular No. 2-99 should not affect the manner by
which periods set by the rules or the courts are computed under Rule 22,
Section 1 of the Rules of Court. Administrative Circular No. 2-99 is an
administrative issuance signed by then Chief Justice Hilario G. Davide to
govern the attendance of the judiciary officials and employees. It cannot
amend or take precedence over the Rules of Court, duly approved by
the Court en banc and published for the information of and compliance
by the public. In fact, Administrative Circular No. 2-99 itself states that "it
supersedes and modifies accordingly any previous Orders or Circulars on
the matter," but not the Rules of Court. (Leynes v. Court of Appeals 19
January 2011).

119. Should an act be done with effectively interrupts the running of the
period, the allowable period after such interruption shall start to run on the
day after notice of the cessation of the cause thereof. The day of the act
that caused the interruption shall be excluded in the computation of the
period. (S2 R22).
For instance, in the preceding example, if the defendant filed on
June 10 a motion to dismiss and he received the order denying the
motion to dismiss on July 1, he has until July 8 (July 2 + 6 days) within which
to file his answer. The allowable period after such interruption (6 days)
starts to run on the day after notice of the cessation of the interruption's
cause, which is July 2.

120. Yes. The rule on pretermission of holidays under R22 while applicable
to reglementary periods is not applicable to reglementary periods is not
applicable to prescriptive periods set under the Civil Code, RPC, or other
 applicable statues. P should have filed his complaint at the latest on 18
June 2004. The action to enforce a written contract under Article 1114 of
the Civil Code prescribes in 10 years from the accrual of the right of
action.

121. Discovery is the modern pre-trial procedure by which one party

gains vital information concerning the case in order to aid him in his
litigation.

122. The primary purpose of discovery is to enable the parties to obtain

the fullest possible knowledge of the issues and facts before trial 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.

123. No. Precisely the purpose of discovery is to enable a party obtain

relevant facts form the other party in advance of trial so as to facilitate
settlement of to expedite the trial. Discovery is in effect a legally
sanctioned “fishing expedition” designed to unveil probative facts and
evidence.

124. First, it is largely a self-executing process. For the most part, lawyers
conduct discovery without judicial approval, participation, or regulation.
Second, the discovery rules are flexible and permit any order, and
repeated use, of the various discovery methods subject only to court
protection against abuse.
Third, orders regulating discovery are usually not final appealable
court orders. Since discovery issues will often be moot by the time a final
judgment is entered in the case, appeals are relatively infrequent. This
means the issues concerning discovery are principally resolved at the trial
court level.

125. 1. Depositions pending action (R23) or before action or pending

appeal (R24).
2. Interrogatories to parties (R25)
3. Request for admission by adverse party (R26)
4. Motion for production or inspection of documents or things. (R27)
5. Motion for physical or mental examination of a party. (R28)

126. Only deposition may be resorted to against non-parties. The other

modes must only be resorted against parties.

127. Deposition is a method of pre-trial discovery which consists in taking

the testimony of a person under oath upon oral examination or upon
 written interrogations. The term deposition also refers to the testimony or
statement so taken.

128. Depositions may either be taken upon oral examination, it which

also known as oral deposition or it may be taken upon written
interrogatories.

129. While affidavit is also under oath, it is distinguished form a deposition

in that it is executed ex parte without the opportunity for the other parties
to attend and cross examine the affiant. An affidavit is inadmissible in
evidence while a deposition may be admitted in evidence.

130. By leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action. Without
leave of court, after an answer has been served.

131. No, a deposition which is not complied with R23 s1 may not be
given probative value. Here the deposition should be taken with leave of
court since the defendant has not yet served an answer.

132. Yes, examination and cross-examination of deponents may

proceed as permitted at the trial.

133. At the trial, or upon the hearing of a motion or an interlocutory

proceeding.

134. Against any party who was present or represented at the taking of
the deposition or who had due notice thereof.

135. The purpose for a deposition may be used depends on who will be
using.
a. Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony.
b. The deposition of a party or of any one who at the time of taking
the deposition was an officer, director or managing agent of a
public or private corporation, partnership or association.
c. The deposition of a witness whether or not a party may be used
by any party for any purposes of the court finds. (r23 S4)
136. Yes. In such a case, the adverse party may require him to introduce
all of it which is relevant to the part introduced, and any party may
introduce any other parts.

137. Yes. The BID certification is adequate proof that Corral was out of
the country. The onus was on Petitioner to prove his allegation that the
deponent had returned to the Philippines.

138. No. The party shall not be deemed to make a person his own
witness for any purpose by taking his disposition. This is why under S4 (a)
R23 any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.

139. The rule is that the introduction in evidence of the deposition or any
part thereof makes the deponent the witness of the party introducing the
deposition. Hence, the party may not impeach the deponent.

140. Yes but he should first have the court declare Juan as a hostile
witness who misled the Plaintiff into calling Juan to the witness stand.

141. Within the Philippines, depositions may be taken before a judge, a

notary public and a person authorized to administer oaths if the parties so
stipulate in writing.

142. In a foreign state or country, depositions may be taken:

1. on notice before a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of the
Republic of the Philippines
2. before such person as may be appointed by commission or
under letters rogatory
3. A person authorized to administer oaths if the parties so
stipulate in writing

143. Letters rogatory and commission are both devices for taking
deposition of a person in a foreign state or country. A commission is an
instrument issued by a court or tribunal directed to a magistrate or an
individual authorizing him to take the deposition of the witness named
therein while letters rogatory is a request to a foreign court to give its aid,
backed by its power, to secure desired information. Commissions are
taken down in accordance with rules laid down by the court issuing the
commission while in letters rogatory, the methods of the procedure are
under the control of the foreign tribunal.
144. Yes. The authentication made by the consul was a ratification of
the authority of the notary public who took the questioned depositions.
The deposition was, in effect, obtained through a commission and no
longer through letters rogatory.

145. A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other party to
the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, If
known, and If the name is not known, a general description sufficient to
identify him or the particular class or group to which he belongs. Proof of
service of a notice to take deposition shall constitute sufficient
authorization for the issuance of subpoenas for the persons named in said
notice by the clerk of court of the place in which the deposition is to be
taken. The clerk shall not, however, issue a subpoena duces tecum to any
such person without an order of the court.

146. 1. The officer before whom the deposition is to be taken shall put
the witness on oath and shall personally, or by someone acting
under his direction and presence, record the testimony of the
witness.
2. The testimony shall be taken stenographical unless the parties
agree otherwise.
3. All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner
of taking it, or to the evidence presented, or to the conduct of any
party, and any other objection to the proceedings (OMECO), shall
be noted by the officer upon the deposition. Evidence objected to
shall be taken subject to the objections. Note that the officer has no
power to rule on the objections.
4. In lieu of participating in the oral examination, parties served with
notice of taking a deposition may transmit written interrogatories to
the officers, who shall profound to the witness and record the
answers verbatim.

147. Aside from contempt, the court on motion and notice may strike
out all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default against
that party, and in its discretion, order him to pay reasobanle expenses
incurred by the other, including attorney’s fees.
148. Yes, an unsigned deposition does not preclude its use during the
trial. A deponent’s signature only goes to the form and the signature is
required only to ensure that the deponent is afforded the opportunity to
correct any errors therein and ensure its accuracy.

149. 1. As to the competency or relevancy of testimony. As to

competency of relevancy of testimony, Objection should be made when
the deposition is being offered in evidence. Objections to the
competency, relevancy or materiality of the testimony are not waived by
failure to make them before or during the taking of the deposition, unless
the ground of the objection is one which might have been obviated or
removed if presented at that time. The test to determine whether “the
ground of the objection might have been obviated or removed if
presented at that time” is whether the objection will give the other party
an opportunity to cure the deficiency of his proof. An example would be
the lack of qualification by an expert, which may be cured by objecting
at the time of the taking of the deposition.

2. As to form of notice and as to qualification of officer. All errors

and irregularities in the notice for taking a deposition are waived unless
written objection is promptly served upon the party giving the notice.
Objections to taking of deposition because of disqualification of the
officer before whom it is to be taken is waived unless made before the
taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable
diligence.

150. I will sustain the objection. Objections to the competency or

relevancy of the testimony of the deponent should be made when the
deposition is being offered in evidence. Such objections are not waived
by failure to make them before or during the taking of the deposition,
unless the ground of the objection is one which might have been
obviated or removed if presented at that time. Here the objection relates
to the competency of W’s testimony. The ground for the objection
(violation of the attorney-client privilege) would not have been obviated
or removed even if presented during the deposition –taking. Hence, the
same is not waived even if defendant failed to object during the
deposition taking.
151. I would overrule the objection. Objection to the competency of the
witness or the competency, relevancy, or materiality of testimony are not
waived by failure to make them before or during the taking of deposition,
unless the ground of the objection is one which might have obviated or
removed if presented at that time. Here the ground of the objection, that is,
the failure to comply with the best evidence rule might have been obviated
or removed even if presented during the deposition taking. W could have
laid the foundation of his oral testimony by testifying as to the availability of
the original. Hence, the objection should be overruled.