Remedial Law Review 1 QUIZ plaintiff,
September
TO BE SUBMITTED on September 21, 2019
I matter of right on the part of the plaintiff but a matter of discretion upon the court.
(A) What are the manners of dismissal of the action upon the instance of the
plaintiff?
Answer: DISMISSAL OF ACTIONS
Section 1. Dismissal upon notice by plaintiff.
Sec. 2. Dismissal upon motion of plaintiff.
Sec. 3. Dismissal due to fault of plaintiff.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.
(B) Distinguish dismissal upon notice by plaintiff and dismissal upon motion by
plaintiff.
Answer: Dismissal upon notice by plaintiff
(1) Before the service of an answer or the service of a motion for summary
judgment, a complaint may be dismissed by the plaintiff by filing a notice of dismissal.
Upon the filing of the notice of dismissal, the court shall issue an order confirming the
dismissal. (Sec. 1, Rule 17).
(2) it is not the order confirming the dismissal which operates to dismiss the complaint.
As
the name of the order implies, said order merely confirms a dismissal already effected
by the filing of the notice of dismissal. The court does not have to approve the dismissal
because it has no discretion on the matter. Before an answer or a motion for summary
judgment has been served upon the plaintiff, the dismissal by the plaintiff by the filing
of
the notice is a matter of right. The dismissal occurs as of the date of the notice is filed
by
the plaintiff and not the date the court issues the order confirming the dismissal.
(3) Under the clear terms of Sec. 1, Rule 17, the dismissal as a matter of right ceases
when
an answer or a motion for summary judgment is served on the plaintiff and not when the
answer or the motion is filed with the court. Thus, if a notice of dismissal is filed by the
plaintiff even after an answer has been filed in court but before the responsive pleading
has been served on the plaintiff, the notice of dismissal is still a matter of right.
Dismissal upon motion by plaintiff
(1) Once either an answer or motion for summary judgment has been served on the
the dismissal
14, 2019is no longer a matter of right and will require the filing of a motion
to dismiss, not a mere notice of dismissal. The motion to dismiss will now be subject to
the approval of the court which will decide on the motion upon such terms and
conditions as are just (Sec. 2, Rule 17). The dismissal under Sec. 2 is no longer a
II
(A) What is the doctrine of “Non-Prosequitur” as a ground for dismissal of an
action?
Answer: Non Prosequitur
[Latin, He does not pursue, or follow up.] The name of a judgment rendered by a court
against a plaintiff because he or she fails to take any necessary steps, in legal
proceedings, within the period prescribed for such proceedings by the practice of court.
When a judgment of non prosequitur is entered against the plaintiff, he or she has failed
to properly pursue the lawsuit and cannot subsequently obtain a judgment against the
defendant. A failure of such nature would result in a dismissal of the action or in a default
judgment in favor of the defendant.
(B) What are the instances of dismissal due to the fault of the plaintiff?
Answer: The dismissal due to the fault of the plaintiff may be done by the court motu
propio or
upon a motion filed by the defendant (Sec. 3, Rule 17). The court may dismiss an action
motu propio, for:
(a) Failure to prosecute for unreasonable length of time;
(b) Failure to appear at the trial;
(c) Failure to comply with the rules;
(d) Failure to comply with the order of the court; and
(e) Lack of jurisdiction.
(C) What is the nature of the dismissal of an action dismissed due to the fault of
the plaintiff?
Answer: A complaint may be dismissed even if the plaintiff has no desire to have the
same
dismissed. The dismissal in this case will be through reasons attributed to his fault.
Section 3 of Rule 17 provides the following grounds for dismissal:
(a) Failure of the plaintiff, without justifiable reasons, to appear on the date on the date
of the presentation of his evidence in chief;
(b) Failure of the plaintiff to prosecute his action for an unreasonable length of time;
(c) Failure of the plaintiff to comply with the Rules of Court; or
(d) Failure of the plaintiff to obey any order of the court.
III On March 4, 2007, Liza filed a complaint against Nyoy in the RTC of Quezon
City. Nyoy received the summons on March 10, 2007. For some reason, Liza had a
change of heart and filed a motion to dismiss the action on March 14, 2007. On the
same day, and without being served with a copy of Liza’s motion to dismiss, Nyoy
filed and served to Liza his verified answer to the complaint with counterclaim. The
Court granted Liza’s motion. On April 3, 2007, Nyoy filed a motion to declare Liza in
default for her failure to file an answer on his counterclaim. Liza argued that she was
justified in not filing an answer because the case was already dismissed by the court,
including the counterclaim. Is Liza’s argument tenable?
IV
(A) Explain briefly the Two-dismissal Rule.
Answer: The two-dismissal rule applies when the plaintiff has (a) twice dismissed
actions, (b)
based on or including the same claim, (c) in a court of competent jurisdiction. The
second notice of dismissal will bar the refiling of the action because it will operate as
an
adjudication of the claim upon the merits. In other words, the claim may only be filed
twice, the first being the claim embodied in the original complaint. Since as a rule, the
dismissal is without prejudice, the same claim may be filed. If the refiled claim or
complaint is dismissed again through a second notice of dismissal, that second notice
triggers the application of the two-dismissal rule and the dismissal is to be deemed one
with prejudice because it is considered as an adjudication upon the merits.
(B) When may the court dismiss an action motu propio?
Answer: The court may dismiss an action motu propio, for:
(a) Failure to prosecute for unreasonable length of time;
(b) Failure to appear at the trial;
(c) Failure to comply with the rules;
(d) Failure to comply with the order of the court; and
(e) Lack of jurisdiction.
V
(A) What is pre-trial?
Answer: Pre-trial is a procedural device intended to clarify and limit the basic issues
between the
parties. It thus paves the way for a less cluttered trial and resolution of the case. Its main
objective is to simplify, abbreviate and expedite trial, or totally dispense with it
(Abubakar vs. Abubakar, 317 SCRA 264). It is a basic precept that the parties are bound
to honor the stipulations made during the pre-trial
(B) What is the nature and purpose of pre-trial?
Answer:
(1) After the last pleading has been served and filed, it shall be the duty of the plaintiff
to promptly move ex parte that the case be set for pre-trial.
(2) The conduct of a pre-trial is mandatory.
(3) Pre-trial is a procedural device held prior to the trial for the court to consider the
following purposes:
(a) The possibility of an amicable settlement or a submission to alternative modes of
dispute resolution;
(b) Simplification of issues;
(c) Necessity or desirability of amendments to the pleadings;
(d) Possibility of obtaining stipulations or admissions of facts and of documents to avoid
unnecessary proof;
(e) Limitation of the number of witnesses;
(f) Advisability of a preliminary reference of issues to a commissioner;
(g) Propriety of rendering judgment on the pleadings, or summary judgment, or of
dismissing the action should a valid ground therefor be found to exist;
(h) Advisability or necessity of suspending the proceedings; and
(i) Other matters as may aid in the prompt disposition of the action (Sec. 2, Rule 18).
VI Lilio filed a complaint in the Municipal Trial Court of Lanuza for the recovery
of a sum of money against Juan. The latter filed his answer to the complaint serving a
copy thereof on Lilio. After the filing of the answer of Juan, whose duty is to have the
case set for pre-trial? Why?
Answer: After the filing of the answer of Juan, the plaintiff has the duty to promptly
move ex parte that the case be set for pre-trial. The reason is that it is the plaintiff who
knows when the last pleading has been filed and it is the plaintiff who has the duty to
prosecute (Rule 18, Section 1).
VII Warren, the defendant in a case, failed to attend the pre-trial conference
despite proper notice. The plaintiff’s counsel moved in open court that Warren be
declared in default due to his failure to attend the pre-trial, which the court granted.
(A) Was the Court correct is declaring Warren in default?
(B) Upon receipt of the Order of the order of the Court declaring him in default,
Warren filed a motion for reconsideration arguing, among others, that his
non-attendance was due to the fault of his lawyer who forgot to update his
calendar. Is Warren’s excuse justifiable? What is the consequence of
Warren’s failure to attend the pre-trial conference?
VIII Distinguish between pre-trial in civil case and pre-trial in criminal case.
Answer:
(1) The pre-trial in a civil case is set when the plaintiff moves ex parte to set the
case for
pre-trial (Sec.1, Rule 18). The pre-trial in criminal case is ordered by the court
and no motion to set the case for pre-trial is required from either the prosecution
or the defense (Sec. 1, Rule 118).
(2) The motion to set the case for pre-trial in a civil case is made after the last
pleading has been served and filed (Sec. 1, Rule 18). In a criminal case, the pre-
trial is ordered by the court after arraignment and within thirty (30) days from
the date the court acquires jurisdiction over the person of the accused (Sec. 1,
Rule 118).
(3) The pre-trial in a civil case considers the possibility of an amicable settlement
as an
important objective (Sec. 2[a], Rule 18). The pre-trial in a criminal case does not
include the considering of the possibility of amicable settlement of criminal
liability as one of its purposes (Sec.1, Rule 118).
(4) In a civil case, the agreements and admissions made in the pre-trial are not
required to be signed by the parties and their counsels. They are to be contained
in the record of pre-trial and the pre-trial order (Sec. 7, Rule 18). In a criminal
case, all agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and counsel;
otherwise, they cannot be used against the accused (Sec. 2, Rule 118).
(5) The sanctions for non-appearance in a pre-trial are imposed upon the plaintiff
or the defendant in a civil case (Sec. 4, Rule 18). The sanctions in a criminal case
are imposed upon the counsel for the accused or the prosecutor (Sec. 3, Rule 118)
IX
(A) What is a pre-trial brief? What matters should it contain?
Answer: The parties shall file with the court their respective pre-trial briefs which shall
be received at least three (3) days before the date of the pre-trial. This pre-trial brief shall
be served on the adverse party (Sec. 6, Rule 18).
The pre-trial brief shall contain the following matters:
(a) A statement of their willingness to enter into an amicable settlement or alternative
modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purposes thereof;
(e) A manifestation of their having availed of or their intention to avail of discovery
procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective
testimonies (Sec.6, Rule 18).
(B) What is the effect of failure to file a pre-trial brief?
Answer: Failure to file the pre-trial brief shall have the same effect as failure to appear
at the pretrial (Sec. 6, Rule 18). Hence, if it is the plaintiff who fails to file a pre-trial
brief, such failure shall be cause for dismissal of the action. If it is the defendant who
fails to do so, such failure shall be cause to allow the plaintiff to present his evidence ex
parte. A pretrial brief is not required in a criminal case.
X
(A) How are cases assigned to the different branches of a court?
Answer: All cases filed with the Court in stations or groupings where there are two or
more branches shall be assigned or distributed to the different branches by raffle. ... In
stations where there are only two salas the Judges of both and either the Clerk of Court
or the Branch Clerk of Court should be present.
(B) What is the rule in computing any period of time prescribed by the Rules of
Court, or by order of the court, or by any applicable statute?
Answer: In computing any period of time prescribed or allowed bythese rules, by order
of court, or by any applicable statute, the day of the act, event,or default after which the
designated period of time begins to run is not to beincluded. The last day of the period
so computed is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in
which event the period runs until the endof the next day which is not a Saturday, a
Sunday, or a holiday. When the periodof time prescribed or allowed is less than 7 days,
intermediate Saturdays, Sundaysand legal holidays shall be excluded in the computation.
For the purpose of this subdivision legal holidays shall include days on which the Chief
Justice of the Superior Court or Chief Judge of the District Court pursuant to Rule 77(c)
specifically orders the clerk’s office closed.
-PART II-
I proceed to resolve the motion to dismiss? Explain.
(A) What is the "most important witness" rule pursuant to the 2004 Guidelines
of Pretrial and Use of Deposition-Discovery Measures?
Answer: The “most important witness” rule pursuant to the 2004 Guidelines of Pretrial
and Use of Deposition-Discovery Measures provides that the judge shall, during the
pretrial conference, determine the most important witnesses to be heard and limit the
number of witnesses.
(B) What is the "one-day examination of witness" rule pursuant to the said
2004 Guidelines?
Answer: The “one-day examination of a witness” rule pursuant to the 2004 Guidelines
of Pretrial and Use of Deposition-Discovery Measures provides that a witness has to be
fully examined in one day only, subject to the court’s discretion to extend the direct
and/or cross-examination for justifiable reasons.
II
Charisse, alleging that she was a resident of Cebu City, filed a complaint for
damages against AB Bank before the RTC of Cebu City following the dishonor of a
check she drew in favor of Shirley against her current account which she maintained in
the bank’s local branch. The bank filed a Motion to Dismiss the complaint on the ground
that it failed to state a cause of action, but it was denied. It thus filed an Answer.
(A) In the course of the trial, Charisse admitted that she was a US citizen
residing in Los Angeles, California and that she was temporarily billeted at the Preston
Hotel in Cebu City, drawing the bank to file another motion to dismiss, this time on the
ground of improper venue, since Charisse is not a resident of Cebu City. Charisse
opposed the motion citing the “omnibus motion rule.” Rule on the motion.
Answer: A: The bank’s second motion to dismiss which is grounded on improper venue
should be denied. The improper venue of an action is deemed waived by the bank’s filing
an earlier motion to dismiss without raising improper venue as an issue, and more so
when the bank filed an Answer without raising improper venue as an issue after its first
motion to dismiss was denied. Under the “omnibus motion rule” (Rule 15, Sec. 8) which
governs the bank’s motion to dismiss, such motion should include all objections then
available; otherwise, all objections not so included shall be deemed waived.
(B) Suppose Charisse did not raise the “omnibus motion rule,” can the judge
Answer: Yes, the judge can proceed to resolve the motion to dismiss, because the ground
raised therefor became known to the movant only during the trial, such that it was only
then that the objection became available to him.
III
Bong filed a complaint in the RTC of Quezon City for the collection of
P300,000.00. The defendant, Jim, filed a motion to dismiss the complaint on the ground
that the court had no jurisdiction over the action since the claimed amount of
P300,000.00 is within the exclusive jurisdiction of the Metropolitan Trial Court of
Quezon City. Before the court could resolve the motion, Bong, without leave of court,
amended his complaint to allege a new cause of action consisting in the inclusion of an
additional amount of P300,000.00, thereby increasing his total claim to P600,000.000.
Bong thereafter filed his opposition to the motion to dismiss claiming that the RTC had
jurisdiction over his action. Resolve the motion.
IV
Describe briefly at least five (5) modes of discovery under the Rules of Court.
Answer: Modes of discovery:
(a) Depositions pending action (Rule 23);
 By leave of court after jurisdiction has been obtained over any defendant or over
property which is the subject of the action, or without such leave after an answer has
been served, the testimony of any person, whether a party or not, may be taken, at the
instance of any party, by deposition upon oral examination or written interrogatories.
(b) Depositions before action or pending appeal (Rule 24);
A person who desires to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the Philippines, may file a
verified petition in the court of the place of the residence of any expected adverse party.
(c) Interrogatories to parties (Rule 25)
Under the same conditions specified in Sec. 1, Rule 23, any party desiring to
elicit material and relevant facts from any adverse party shall file and serve upon the
latter written interrogatories to be answered by the party served or, if the party served is
a public or private corporation or a partnership or association, by any officer thereof
competent to testify in its behalf.
(d) Admission by adverse party (Rule 26);
At any time after issues have been joined, a party may file and serve upon any
other party a written request for the admission by the latter of the genuineness of any
material and relevant document or of the truth of any material and relevant matter of
fact.
(e) Production or inspection of documents and things (Rule 27);
Upon motion of any party showing good cause therefor, the court in which an
action is pending may order any party to produce and permit the inspection and copying
of any designated documents or order any party to permit entry upon designated land or
other property in his possession or control for the purpose of inspecting or photographing
the property or any designated relevant object or operation thereon. ; and
(f) Physical and mental examination of persons (Rule 28).
In an action in which the mental or physical condition of a party is in
controversy, the court in which the action is pending may in its discretion order him to
submit to a physical or mental examination by a physician.
V
In an admiralty case filed by Andrea against Y Shipping Lines (whose principal
offices are in Manila) in the RTC of Davao City, the court issued a subpoena duces
tecum directing Jason, the president of the shipping company, to appear and testify at
the trial and to bring with him several documents. Jason refused to comply with the
subpoena duces tecum on the ground that he resides more than 100 kilometers from
Davao City, which the Court found justifiable. How can Andrea take the testimony of
Jason and present the documents as exhibits other than through the subpoena from the
RTC?
Answer: A can take the testimony of Y and present the documents as exhibits by taking
his deposition through oral examination or written interrogatories (Rule 24; new Rule
23). He may also file a motion for the production or inspection of documents (Rule 27).
VI
The plaintiff sued the defendant in the RTC to collect on a promissory note, the
terms of which were stated in the complaint and a photocopy attached to the complaint
as an annex. Before answering, the defendant filed a motion for an order directing the
plaintiff to produce the original of the note so that the defendant could inspect it and
verify his signature and the handwritten entries of the dates and amounts.
(A) Should the judge grant the defendant’s motion for production and inspection
of the original of the promissory note? Why?
Answer: Yes, because upon motion of any party showing good cause, the court in which
the action is pending may order any party to produce and permit the inspection of
designated documents (Rule 27). The defendant has the right to inspect and verify the
original of the promissory note so that he could intelligently prepare his answer.
(B) Assuming that an order for production and inspection was issued but the
plaintiff failed to comply with it, how should the defendant plead to the
alleged execution of the note?
Answer: The defendant may file a motion to dismiss the complaint because of the refusal
of the plaintiff to obey the order of the court for the production and inspection of the
promissory note (Sec. 3(c), Rule 29).
VII
Linda, as mother and in her capacity as legal guardian of her legitimate minor
son, Habeas, brought action for support against Albert, as father of Habeas and Linda’s
lawfully wedded husband. Albert filed his answer denying his paternity with
counterclaim for damages. Subsequently, Linda filed a manifestation in court that in
view of the denial made by Albert, it would be futile to pursue the case against Albert.
Linda agreed to move for the dismissal of the complaint, subject to the condition that
Albert will withdraw his counterclaim for damages. Linda and Albert filed a joint motion
to dismiss. The court dismissed the case with prejudice. Later on, minor son Habeas,
represented by Linda, filed another complaint for support against Albert. Albert filed a
motion to dismiss on the ground of res judicata.
(A) Is res judicata a valid ground for dismissal of the second complaint?
Answer: No, res judicata is not a defense in an action for support even if the first case
was dismissed with prejudice on a joint motion to dismiss. The plaintiff’s mother agreed
to the dismissal of the complaint for support in view of the defendant’s answer denying
his paternity with counterclaim for damages. This was in the nature of a compromise of
the right to support which is prohibited by law
(B) What are the essential requisite of res judicata?
Answer: The following are the requisites of res judicata:
(1) the former judgment must be final;
(2) the court that rendered it had jurisdiction over the subject matter and the parties;
(3) it is a judgment on the merits; and
(4) there is — between the first and the second actions — an identity of parties, subject
matter and cause of action.
VIII
On August 13, 2008, Krisma, as shipper and consignee, loaded on the M/V
Atlantis in Legaspi City 100,000 pieces of century eggs. The shipment arrived in Manila
totally damaged on August 14, 2008. Krisma filed before the Metropolitan Trial Court
(MeTC) of Manila a complaint against B Super Lines, Inc. (B Lines), owner of the M/V
Atlantis, for recovery of damages amounting to P167,899. She attached to the complaint
the Bill of Lading.
B Lines served on Krisma a "Notice to Take Deposition" setting the deposition
on July 29, 2009 at 8:30 a.m. at the office of its counsel in Makati City. Krisma failed to
appear at the deposition-taking, despite notice. As counsel for B Lines, how would you
proceed?
Answer: As counsel for B Lines (which gave notice to take the deposition), I shall
proceed as follows: 1. Find out why A failed to appear at the deposition-taking, despite
notice; 2. If failure was for valid reason, then set another date for taking the deposition;
3. If failure to appear at deposition taking was without valid reason, then I would file a
motion/application in the court where the action is pending, for an Order to show cause
for his refusal to the discovery; and 4. For the court to issue appropriate Order provided
under Rule 29 of the Rules, for non-compliance with the show-cause order, aside from
contempt of court.
IX
Continental Chemical Corporation (CCC) filed a complaint for a sum of money
against Barstow Trading Corporation (BTC) for the latter’s failure to pay for its
purchases of industrial chemicals. In its answer, BTC contended that it refused to pay
because CCC misrepresented that the products it sold belonged to a new line, when in
fact they were identical with CCC’s existing products. To substantiate its defense, BTC
filed a motion to compel CCC to give a detailed list of the products’ ingredients and
chemical components, relying on the right to avail of the modes of discovery allowed
under Rule 27. CCC objected, invoking confidentiality of the information sought by
BTC. Resolve BTC’s motion with reasons.
Answer: I will deny the motion. The ingredients and chemical components of CCC’s
products are trade secrets within the contemplation of the law. Trade secrets may
not be the subject of compulsory disclosure by reason of their confidential and
privileged character. Otherwise, CCC would eventually be exposed to unwarranted
business competition with others who may imitate and market the same kinds of
products in violation of CCC’s proprietary rights. Being privileged, the detailed list
of ingredients and chemical components may not be the subject of mode of
discovery under Rule 27, Section 1 which expressly makes privileged information
an exception from its coverage
X
What is/are the consequence/s of a plaintiff’s refusal to comply with modes of
discovery?

Answer: If any party or an officer or managing agent of a party refuses to obey an
order made under section 1 of this Rule requiring him to answer designated questions,
or an order under Rule 27 to produce any document or other thing for inspection,
copying, or photographing or to permit it to be done, or to permit entry upon land or
other property or an order made under Rule 28 requiring him to submit to a physical or
mental examination, the court may make such orders in regard to the refusal as are just,
and among others the following:
(a) An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or the
physical or mental condition of the party, or any other designated facts shall be taken
to be established for the purposes of the action in accordance with the claim of the
party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose designated
claims or defenses or prohibiting him from introducing in evidence designated
documents or things or items of testimony, or from introducing evidence of physical or
mental condition;
(c) An order striking out pleadings or parts thereof, or staying further proceedings until
the order is obeyed, or dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the
arrest of any party or agent of a party for disobeying any of such orders except an order
to submit to a physical or mental examination.
XI
Xandro filed a complaint in the RTC for the recovery of a sum of money with
damages against Yeba. Yeba filed his answer denying liability under the contract of sale
and praying for the dismissal of the complaint on the ground of lack of cause of action
because the contract of sale was superseded by a contract of lease, executed and signed
by Xandro and Yeba two weeks after the contract of sale was executed. The contract of
lease was attached to the answer. Xandro did not file a reply. What is the effect of
Xandro’s non-filing of a reply?
XII
What are the available remedies of a party declared in default
(A) before the rendition of judgment,
Answer: if judgment has already been rendered when he discovered the default, but
before the same has become final and executory, he may file a motion for new trial under
Section 1(a) of Rule 37
(B) after judgment but before its finality, and
Answer: he may, at any time after discovery of the default but before judgment, file a
motion, under oath, to set aside the order of default on the ground that his failure to
answer was due to fraud, accident, mistake or excusable neglect, and that he has a
meritorious defense;
(C) after finality of judgment?
Answer: if he discovered the default after the judgment has become final and xecutor,
he may file a petition for relief under Section 2 of Rule 38; and he may also appeal from
the judgment rendered against him as contrary to the evidence or to the law, even if no
petition to set aside the order of default has been presented by him. Thus, respondent,
which had been declared in default, may file a notice of appeal and question the validity
of the trial court’s judgment without being considered to have submitted to the trial
court’s authority.
Alternative answer:
(1) Remedy after notice of order and before judgment:
(a) Motion to set aside order of default, showing that (a) the failure to answer was due
to fraud, accident, mistake, or excusable negligence, and (b) the defendant has a
meritorious defense—there must be an affidavit of merit (Sec. 3[b], Rule 9).
(2) Remedy after judgment but before finality:
(b) Motion for new trial under Rule 37; or
(c) Appeal from the judgment as being contrary to the evidence or the law;
(3) Remedy after judgment becomes final and executor:
(d) Petition for relief from judgment under Rule 38;
(e) Action for nullity of judgment under Rule 47.
XIII
During trial, plaintiff was able to present, without objection on the part of
defendant in an ejectment case, evidence showing that plaintiff served on defendant a
written demand to vacate the subject property before the commencement of the suit, a possession and control of the adverse party; and
matter not alleged or otherwise set forth in the pleadings on file. May the corresponding (e) To determine the physical or mental condition of a party when such is in controversy
pleading still be amended to conform to the evidence? (Koh vs. IAC, 144 SCRA 259)

SUGGESTED ANSWER:
Yes. The corresponding pleading may still be amended to conform to the
evidence, because the written demand to vacate, made prior to the commencement of
the ejectment suit, was presented by the plaintiff in evidence without objection on the
part of the defendant.
Even if the demand to vacate was jurisdictional, still, the amendment proposed was to
conform to the evidence that was already in the record and not to confer jurisdiction on
the court, which is not allowed. Failure to amend, however, does not affect the result of
the trial on these issues. (Sec. 5 of Rule 10).

XIV
Distinguish between a deposition benne esse and deposition in perpetuam rei
memoriam.

Answer: A deposition may be sought for use in a future action (Rule 24), during a
pending action (Rule 23), or for use in a pending appeal (Rule 24). If the deposition is
for use during a pending action, it is commonly called a deposition benne esse and is
governed by Rule 23. If it is to perpetuate a testimony for use in future proceedings as
when it is sought before the existence of an action, or for cases on appeal, it is called a
deposition in perpetuam rei memoriam. Any or all of the deposition, so far as
admissible under the rules of evidence, may be used (a) against any party who was
present or represented at the taking of the deposition, or (b) against one who had due
notice of the deposition (Sec. 4, Rule 23).

XV
What is/are the purpose/s of the rules of discovery?

Answer: The basic purposes of the rules of discovery are:

(a) To enable a party to obtain knowledge of material facts within the knowledge of the
adverse party or of third parties through depositions;
(b) To obtain knowledge of material facts or admissions from the adverse party through
written interrogatories;
(c) To obtain admissions from the adverse party regarding the genuineness of relevant
documents or relevant matters of fact through requests for admissions;
(d) To inspect relevant documents or objects, and lands or other property in the