UNIVERSITY OF THE CORDILLERAS

COLLEGE OF LAW
Civil Procedure - Preliminary Examination
December 14, 2006

PART I: True or False (20 pts)

1. The defendant’s recourse against a complaint which fails to include an

indispensable party is to move for the dismissal of the complaint.

2. A counterclaim existing at the time of the filing of an answer may be set up by

way of a supplemental pleading with the permission of the court, before judgment.

3. Jane has to separate credits against John, one for PHP 20,000.00 and another
for PHP 15,000.00. Since both credits are due and demandable, Jane must file only one
complaint against John.

4. A dismissal on the ground of improper venue may require the filing of motion to
dismiss.

5. A specific denial must always be made under oath.

6. Juan, claiming to be the owner of a parcel of land, may file a single complaint for
its recovery against 50 persons who each occupied a distinct portion of the land.

7. Plaintiff may file an action for rescission of a contract in the RTC sitting in the
place where he resides, even if the contract provides that an action thereon may be
brought by the parties at the exclusive option of the plaintiff in the RTC of Manila.

8. A necessary party is to be impleaded as a party for complete determination of an

action, while an indispensable party is impleaded for a final determination of an action.

9. An ultimate fact is an essential fact constituting the plaintiff’s cause of action.

10. A third party claim is any claim by one party against another person not yet a
party arising out of the transaction or occurrence that is the subject matter either of the
original action or of a counter-claim therein

PART II: Fill in the blanks (20 pts)

Sec. 2 Parties in interest – A real party in interest is the party who (1) _____ to be
benefited or injured by the judgment in the suit, or the party (2) _____ to the (3) _____
of the suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
Sec. 8 Necessary party – A necessary party is one who is not (4) ______ but who ought
to be joined as a party if (5) _____ relief is to be accorded as to those already parties,
or for a complete determination or (6) _____ of the claim subject of the action.

Sec. 12 Class suit – When the subject matter of the (7) _____ is one of common or
general interest to many persons so numerous that it is (8) _____ to join all as parties,
a (9) _____ of them which the court finds to be sufficiently numerous and
representative as to fully protect the interest of all (10) _____ may sue or defend for the
benefit of all. Any part in interest shall have the right to (11 _____ to protect his (12)
_____ interest.

Sec. 18 Incompetency or incapacity – If a party becomes incompetent or incapacitated,

he court, upon (13) _____ with notice, may allow the action to be continued by or (14)
____ against the incompetent or incapacitated person assisted by his legal guardian or
guardian ad litem.

Sec. 20 Action on contractual money claims – When the action is for recovery of money
arising from (15) _____, express or implied, and the defendant dies before (16) _____
of final judgment in the court in which the action was (17) _____ at the time of such
death, it shall not be dismissed but shall (18) _____ be (19) _____ to continue until
entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be
(20) _____ in the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person.

PART III: Identify the following (20 pts)

1. Is an allegation of new matter, which although hypothetically admitting the

material allegations in the pleading would nevertheless bar or prevent recovery.

2. Is a claim by one party against a co-party arising out of a transaction/occurrence

that is the subject matter either of the original action or the counter-claim.

3. Is an affidavit that the affiant has read the pleading and that the allegations
therein are true and correct of his personal knowledge and/or is based on authentic
records.

4. Occurs when a party attempts to have his action tried in a particular court or
jurisdiction where he feels he will receive the most favorable judgment.

5. The institution by a party of more than one suit where the filing of one or a
judgment upon the merits in anyone is available as a ground for the dismissal of the
others.

6. An action brought against a person based on personal liability to the person

bringing it.
7. The right to commence and maintain an action, it is a remedial right that
depends on substantive law.

8. Is one who has a correlative obligation, whose act or omission violates the legal
rights of another.

9. Exists when the plaintiff is not the real party in interest.

10. An action that affects title to or possession of real property, or interest therein.

PART IV: Choose the best answer. (15 pts)

1. May a court adjudge a defendant liable to a plaintiff for more than what is
specifically prayed for in the complaint?

a. Yes, if the facts warrant and there is a general prayer for relief
b. Yes, as the complaint can be amended to conform to the evidence
c. Yes, if presentation of evidence on the matter is allowed
d. All of the above

2. Johnnie files a case against Brian to enforce the terms of a contract that requires
the latter to complete construction of a house for the former. In his answer, Brian
pleads incomplete payment and demands payment of an alleged balance of PHP
1,000,000.00. Brian is interposing:

a. a compulsory counterclaim
b. a permissive counterclaim
c. a negative defense
d. an affirmative defense

3. P files an action against D for recovery of possession of real property. In his

answer, D states that he was occupying the property as the tenant of A. A is:

a. a party in interest
b. a third party defendant
c. an indispensable party
d. a necessary party

4. During a meeting, A and B notifies E of their intent to file an action for breach of
contract against him. They all agree that the suit can only be filed in the RTC of Baguio
City. A is a resident of Burgos, La Union, B is a resident of Sison, Pangasinan, and E is a
resident of Tarlac City. The proper venue for the suit is?

a. Baguio City
b. Burgos, La Union or Sison, Pangasinan
c. Burgos, La Union or Tarlac City only
d. Baguio City or Tarlac City

5. A files an action against B. B fails to file an answer within the reglamentary

period. Subsequently, the court issues an order directing A to present his evidence
before the clerk of court in support of his allegations. The action of the court is:

a. Proper, as B is now in default

b. Proper, as the court is allowed to require presentation of evidence in lieu of
rendering judgment
c. a and b
d. Neither a,b, or c

PART V

1. Distinguish between jurisdiction and venue. (10 pts)

2. What are the effects of a transfer pendente lite? (5 pts)

3. What are the parts of a pleading? (5 pts)

4. Bonus. (5 pts)

F- he should to have the plaintiff ordered to amend. It is only when there is

failure to do so can he move to dismiss.

F- if amended after an answer is filed, the period is 10 days

F- joinder of causes of action is permissive, not mandatory.

F- a motion to dismiss on improper venue always requires a motion

T- the action arises out of the same transaction or series of transactions and
there is a question of law or fact which may arise that is common to all the
defendants.

T- the provision does not provide for exclusive venue.

T- a necessary party.