Civil Procedure assignment (November 26,2007)

1. What are the remedies of the plaintiff if the motion to dismiss is granted/ denied?
An order granting a motion to dismiss is final and appeal able. (Rule 16 Sec. 3 Rules of court)
General Rule:
An order denying a motion to dismiss is interlocutory and hence, not appealable until final judgment or order is rendered. The ordinary procedure to be followed in such a case is to file an answer and interpose, as a defense or defenses, the objection or objections raised in the motion to dismiss, proceed to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment.

2. Effects of the dismissal of the complaint?
Shall bar the refilling of the same action or claim in the following instances: (Rule 16, Sec. 3, Rules of Court
a. when the cause if action is barred by a prior judgment or by the statute of limitations;
b. when the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished;
c. when the claim on which the action is founded in unenforceable under the provisions on the statue of frauds;
d. When the judgment in the other pending actions will constitute res judicata.

3. Requisites before a party may be declared in default:
If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (Rule 9, Sec. 3, Rules of Court)

4. Remedies of a defending party declared in default
Relief from order of default. - A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (Rule 9, Sec. 3 (b), Rules of Court).

5. Effects of a declaration/order of default.
Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial (Rule 9, Sec. 3 (a), Rules of Court)

6. Cases where a declaration/order of default cannot be made?
Where no defaults allowed. - 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. (Rule 19,Sec. 3 (e), Rules of Court)

7. What are the modes of extraterritorial service?
When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (Rule 14, Sec. 15 , Rules of Court)

8. How is substituted service made?
If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected:
(a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or
(b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (Rule 14, Sec. 7 Rules of Court).

9. What are the 3 options available to defendant upon receipt of complaint?
(a) File Motion to Dismiss
(b) File a Motion for Bill of Particulars
(c) File an Answer (may be with counter-claim, third-party claim, etc.)