JG

Civil Procedure 2016-2017

1. During pre-trial, defendant did not appear and failed to secure a
representative for himself. The court upon motion allowed plaintif
to present his evidence ex parte. The plaintif is asking for P 2, 000,
000 but his evidence was able to prove that he is entitled to P 3,
000, 000. May the court grant P 3, 000, 000?
Yes. Failure on the part of the defendant to appear when so
required pursuant to Rule 18, Section 4 shall be a cause to allow
plaintif to present his evidence ex parte and the court to render
judgment on the basis of his evidence. Refer to Rule 18, Section 5.
2. Defendant was declared in default. Without requiring the plaintif
to present evidence, the court rendered judgment against the
defendant. Did the court commit a procedural error?
No. The court shall proceed to render judgment unless the court in
its discretion required claimant to submit evidence. Refer to Rule 9,
Section 3.
3. Assume No. 2. The court required plaintif to submit evidence to
prove that he is entitled to the amount of P1, 000, 000. The
evidence however proved the amount of P 1, 500, 000. May the
court grant P 1, 500,000?
No. As to the extent of the relief to be awarded, a judgment
rendered against a party in default shall not exceed the amount or
be diferent in kind from that prayed for nor award unliquidated
damages. Refer to Rule 9, Section 3(d).
4. Complaint was dismissed by the court on its own motion by
failure of plaintif to prosecute for an action for an unreasonable
length of time. (a) May the court do so? (b) May the plaintif file the
same action again?
(a) Yes. For no justifiable reason, the plaintif fails to prosecute his
action for an unreasonable length of time, the complaint may be
dismissed upon motion of the defendant or upon the courts own
motion. Refer to Rule 17, Section 3.
(b) No. This dismissal shall have the efect of adjudication upon the
merits, unless otherwise declared by the court. Refer to Rule 17,
Section 3.
5. Before defendant serves his answer, plaintif wants to dismiss his
complaint by filing a notice of dismissal. May the court approved
the dismissal?

Dean Riano
No. Upon such notice being filed, the court shall issue an order
confirming the dismissal. Refer to Rule 17, Section 1.
6. Mr. Defendant filed a motion to dismiss on the ground of res
judicata. The court dismissed the complaint. The plaintifs motion
for reconsideration for motion to dismiss was dismissed by the
court. What is the remedy of the plaintif?
Subject to the right of appeal, an order granting a motion to
dismiss based on res judicata of section 1 hereof shall bar the
refiling of the same action or claim. Refer to Rule 16, Section 5.
7. Assume No. 6. Mr. Defendant filed an answer with counterclaim.
Assuming that the case then proceeded to trial but the complaint
was dismissed because Mr. Defendant invoked the ground of res
judicata. Should the counterclaim be dismissed?
No. The dismissal of the complaint under Rule 16, Section 6 shall be
without prejudice to the prosecution in the same or separate action
of a counterclaim pleaded in the answer. Refer also to Rule 17,
Sections 2 and 3.
8. Defendant filed a motion to dismiss on the ground of failure to
state a cause of action and lack of jurisdiction over the subject
matter. But he did not invoke prescription and improper venue. His
motion to dismiss was denied. May the defendant invoke improper
venue and prescription as affirmative defense?
Defendant may still invoke prescription since it is a non-waivable
defense. Subject to the provisions of section 1 of Rule 9, 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. Thus, improper venue is deemed waived. Refer
to Rule 15, Section 8.
9. There was an action for sum of money. Due to a collision of
vehicles, the defendant died and was substituted by his legal heir.
Assuming that the plaintifs action prevails, may he file a writ of
execution on judgment?
Yes. When the action is for recovery of money arising from contract,
express or implied, and the defendant dies before 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 plaintif therein shall be enforced in the manner

JG
Civil Procedure 2016-2017
especially provided in these Rules for prosecuting claims against
the estate of a deceased person. Refer to Rule 3, Section 20.

Dean Riano