Sunteți pe pagina 1din 4

CIV PRO 02-23-17

FILINGthere should be payment of docket fees to get jurisdiction of the plaintiff


Summons- to get jurisdiction on the person of the defendant
Order of summonsordered by the court; only the COC or sheriff can order
It is only important for you to knowthe provisions on summons so that you can object if you
are counsel for the defendant
o E.g. sheriff issues return stating:
Order/writ validly served, however it was not properly served; it is your duty as
counsel for the defendant to know if a summons is validly served.
o HOW?
Personal; substituted; publication
SERVICE to private domestic juridical entity: exclusive list
o President
o Managing partner
o General manager
o Corporate secretary
o Treasurer
o In-house counsel
Convert personam to quasi in rem
o Provisional remedies:
E.g. the plaintiff is in the process of selling the properties, and if plaintiff wins,
no more property will be paid, hence it is necessary that a writ of attachment be
issuedgrantedmove of issuance of summons by publication
Summons @ substantial amendment- necessary
o Not substantialnot necessary

Proceeding after summons

Motion for bill of particulars


Motion to dismiss
Answer to the complaint

SUMMONS:

Excuses of a defendant in not filing an immediate answer to the complaint: **assume that the
summons is valid**
o BoP- bill of particulars
If BoP is a counter claim, **filed by plaintiff** within 10 DAYSperiod for a
respone, or answer to a counter claim.
What is required?
Defect: ultimate facts are not clear
But NOT conclusions
State in paragraphs
Details you want to clarify
What are the options of the court?
Outright Denial/Grant
Hearing the motion for BoP 10 days upon receiptafter hearing
another 10 days
E.G.
you file BoP today; w/o waiting for the date, you set a hearing (hearing
and notice) w/in 10 days. *please set the hearing at March 12*-- w/o
waiting for March 12, the motion was denied. no GAD, as court has
the option to outright deny/grant;
If judge granted; ordered plaintiff to clarify, Plaintiff disobeyed: effect:
IT IS as if the court will dismiss the complaint. The court will strike out
the complaint from the records; as if you had no CoA
o If Plaintiff comply, in what way? Separate pleading, or amended
pleading
o When to file? Remaining period, but not less than 5 days
o AFTER ANSWER: the next one is a reply by the plaintiff, to answer the answer
**optional**
Can file BoP
o After denial of BoPthe remedy of the movant is:
Defendantremedy to file a motion to Dismiss
o Motion to dismiss
Lack of jurisdiction upon person
MEMORIZE
Res Judicata-
Motion to dismissnot a pleading, as it is not included in the pleadings allowed; ** what the
law excluded, do not include**
o E.g.- in entering your appearance; include motions in the request to be furnished.
o General rule: filed after answer, is considered filed out of time. Treated as a scrap of
paper
o Except:
Lack of jurisdiction
Letis pententia
Bar by statute of limitations
Res judicata
o Res Judicata:
Action is barred by priod judgement
Public policy; for individual to be not vexed twice
Types:
Bar by a former judgement
Conclusiveness of judgement
Elements: **memorize**
o A former judgement must be final
o The court which rendered had jurisdiction
o Judgement on the merits
o There must be between the 1st and 2nd actions, identity of
parties, subj matter, and COA
Applies to judicial or quasi judicial authorities, but NOT in criminal
proceedings
o Affirmative defense, after dismiss the motion to dismiss
o ** you did not file a motion to dismiss** filed an answer, incorporating the motion to
dismiss by way of affirmative defense, is it mandatory to hear your affirmative defense.
Is the court bound to hear it?
NO, it is discretionary,
A preliminary hearing is not mandatory for the court to be held.
o Remedy of defendant if motion is denied: it is an interlocutory order, it does not
terminate the case;
Answer
But he insists, certiorari, GAD amounting to LOJ
o Remedy of the plaintiff if the MTD is granted: FINAL ORDER
Refile the actionas dismissal is final
If on improper venue, jurisdiction, etc
If dismissal bars refiling: judicata, restriction; appeal the order of dismissal, as it
is with prejudice
Certiorari: GAD rule 65
What is the remedy of plaintiff if the defendant did not file an answer:
o ** if the case is governed by summary procedure: move for judgement; although court
can motu proprio can render judgement; motion to declare default in summary is
prohibited
o **if the case governed by regular rules: motion to declare defendant IN default
Requisites for party to be declared default:
o Court cannot motu proprio declare, there MUST be a motion
o Summons must have been validly served
o The defendant failed to answer w/in reglementary period
o Proof of failure to file the answer
o Notify the defendant of the motion to declare of default: furnish him of the copy of the
motion
o Hearing of the motion to declare him in default.
What is the effect of default: defendant loses personality in court
o Can no longer participate in the trial, but is entitled to notices to subsequent
proceedings
Can only participate as witness or observer
what will be the action of the court after default?
o Proceed
o Render judgment
o Ask plaintiff to offer evidence ex parte (walang kalaban)
Remedies of defending party declared in default
o Remedy after notice but before judgment:
File a motion under oath with an affidavit of merit to set aside order of default
and show FAME: fraud, accident, Mistake, Excuse negligence
o Remedy but before final and executory:
File a motion for re trial under RULE 37
File a motion contrary evidence and the law
o Remedy if judgement has become final and exe
Petition for relief from judgement- 60 days to 6 months
o Court cannot grant relief in excess of the damages in asked for in the complaint.