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CIVPRO - Atty. Tranquil 1

ACTIONS, E FFECTS, R EMEDIES
Effect
Lack of Jurisdiction over the Subject Matter

Proceedings or decisions by court are VOID except if

barred by estoppel or laches

Failure to Object Jurisdiction over the Person in

MTD or Answer; or
If not pleaded in a MTD (Omnibus Motion Rule)

Objection is deemed WAVIED

Misjoinder of Causes of Action

Not a ground for dismissal

Splitting a cause of action

Multiple Actions/Suits
One cause of action

Filing of one or judgment upon merits of the other

may be a ground of MTD based on Res Judicata or
Litis Pendentia

Remedy

May be proceeded separately upon motion of party

or courts initiative

Plaintiff has no capacity to sue

Motion to Dismiss on the ground that plaintiff has no

capacity to sue

Defendant has no capacity to sue

Motion to Dismiss:
Pleading states no cause of action or
Failure to state cause of action

If Party Sued/Impleaded is not the Real Party in

Interest

File a MTD on the ground that pleading states no

cause of action/failure to state a cause of action

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CIVPRO Atty. Tranquil
Will not cause outright dismissal - parties may be
dropped/added by court at any time

Indispensible Party NOT Joined

With Court order ground for dismissal based on

failure to comply with court order
No court order all actions of court are void for want
of authority
Meritorious omission: Judgment is without prejudice
to the necessary party

Failure to implead necessary party

Unmeritorious omission: Order inclusion of omitted

party, failure to comply with order is deemed a waiver
of his claim to that party
Does not prevent court from proceeding in the action

No Valid Substitution
Counsels failure to notify court or
Failure of court to order substitution and
appearance

Proceedings invalidated and judgment void for

violation of due process EXCEPT if the party to be
substituted actively participates and voluntarily
submits himself to the jurisdiction of the court

No legal representative named by counsel or they

fail to appear

Court may order opposing party to procure

appointment of an executor or administrator for the
estate of the accused

Defenses and Objections not Pleaded

1. Waived except:
Res Judicata
Litis Pendentia
Lack of Jurisdiction
Statute of Limitations/Prescription
2. Dismissed by court motu proprio
1. Proceed to Judgment without further evidence

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CIVPRO - Atty. Tranquil 3

Declaration of Default
Summons validly served
Failure to file answer
With notice to defending party
Proof shown by existence of records in the
case
o If personally filed w/ CoC = written
acknowledgement
o If registered mail = registry receipt
AND affidavit of the person mailing
Hearing

Before Judgment
File a motion under oath to set aside the
order of default
o Failure due to fraud, accident, mistake
or excusable negligence
o He has a meritorious defense

Unless court requires claimant to submit

evidence ex parte

2. Defendant cannot take part in trial

Entitled to notice only of subsequent
proceedings

After judgment before final and executory

Motion for New Trial
Motion for Reconsideration
Appeal
After judgment is final and executory
Petition for Relief From Judgment
GADALEJ
Petition for Certiorari Rule 65

Court refuses to Admit Amended Pleading as a

Matter of Right

File a mandamus since it is a ministerial duty

If the time sought to be extended has expired, you

can file a motion for leave to file a pleading or
motion, along with the pleading or motion sought to
be admitted.

Extension of Time to Plead

If he doesnt voluntarily appear in court, file a suit and

avail of the provisional remedy of attachment if he
has property in the Philippines

Acquiring Jurisdiction over Non-Resident in

Actions In Personam
Failure to set up compulsory counter-claim or
cross claim

Barred unless it is set up before judgment with leave

of court

File an amended or supplemental answer

1. Amended
Must be existing at the time of the original
Due to oversight, inadvertence or excusable
neglect
With leave of court
2. Supplemental

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CIVPRO Atty. Tranquil

Claim is acquired after filing

With leave of court

Court order arising from a Motion (MTD,

Summary Judgment, Motion to Set Aside Order
of Default, MR)

1. Final Order
2. Interlocutory Order (not granting MTD) Petition
for Certiorari Rule 65

Motion to Dismiss Granted (complaint

dismissed): WITHOUT prejudice

1. Plaintiff re-files the complaint and correct the

defect EXCEPT on the ground of:
Res Judicata
Prescription
Claim/demand has been paid, waived,
abandoned, otherwise extinguished
Unenforceable under Statute of Frauds
o Contracts in consideration of
marriage.
o Contracts which cannot be
performed within one year.
o Contracts for the sale of an interest
in land.
o Contracts by the executor of a will
to pay a debt of the estate with his
own money.
o Contracts for the sale of goods
above a certain value.
o Contracts in which one party
becomes a surety (acts as
guarantor) for another partys debt
or other obligation.
But still subject to right to appeal.

Motion to Dismiss Granted (complaint

dismissed): WITH prejudice

MTD Denied

Appeal not allowed except on lack of jurisdiction over

the subject matter

1. Plaintiff appeals from order of dismissal

MTD with Grave Abuse of Discretion Certiorari under 65

Cant ask for preliminary hearing anymore if
MTD is denied but is discretionary when grounds for
1. Petition for Certiorari

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CIVPRO - Atty. Tranquil 5

MTD are raised in affirmative defense

Dismissal as a matter of right: Notice of

Dismissal
Before the service of the answer or of
motion of summary judgment

Dismissal as a matter of court discretion

Requires filing of MTD by plaintiff

Dismissal due to Plaintiffs Fault

Fails to appear during his presentation of
evidence
Or prosecute his action for an unreasonable
length of time
Or comply with rules or any order of the
court
Failure to appear at pre-trial &

But this will not suspend main proceedings

unless there is a TRO

2. Continue with the case, raise as affirmative

defense the grounds on MTD (also applies if no MTD
has been filed)

Without prejudice except:

Plaintiff provides it is WITH prejudice
If plaintiff previously dismissed the same
case in a court of competent jurisdiction
o The 2nd notice of dismissal will BAR
the refilling of action
1.

It is now subject to the approval of the court

2.

Without prejudice except:

Order of dismissal provides that is is WITH
prejudice
It counterclaim is already pleaded, it
SURVIVES
o Defendant may prosecute in a
separate action unless he manifests
his preference within 15 days to
resolve it in the same action

With prejudice/Effect of adjudication on the merits

unless otherwise provided by the court
If counterclaim already pleaded, it survives

1. Plaintiffs failure to appear will cause the dismissal

of the case WITH prejudice except when the court
orders otherwise

1. Plaintiffs remedy is to appeal from the order of

dismissal. Certiorari is NOT the remedy since it is
only for absence of appeal or plain, speedy,

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CIVPRO Atty. Tranquil
adequate remedy

Failure to file the pre-trial brief

2. Defendants failure will cause to allow plaintiff to

present evidence ex parte and court to render
judgment on the basis thereon

2. The order allowing plaintiff to present evidence ex

parte is an interlocutory order since it does not
dispose of the case with finality therefore it is NOT
APPEALBLE. He may file for MR or petition for
certiorari if there is GADALEJ