CIVIL PROCEDURE 2nd Semester, AY 2004-2005 Prof. V.A. Avena ANSWERS to Pre-Midterm Exercise 1.

Granting that the allegations in the answer re new matters (i.e., re modifications in specifications) were made in the form of a defense, the same are deemed controverted even if no reply is filed. However, if these new matters (in the answer) were alleged in support of a counterclaim, then the attachment to the answer would in effect be an actionable document, such that its authenticity and due execution would be deemed admitted if not denied under oath in an answer to the counterclaim. In other words, a reply, in any event, would not be the proper pleading with which to controvert the actionable document and the new matters in the answer. 2. Grounds for dismissal that can be properly invoked are : a) by Mr. M and the mistress (i) waiver, abandonment or extinguishment of liability due to condonation by Mrs. M; (ii) failure to comply with condition precedent (i.e., earnest efforts at compromise among members of the same family under the Civil Code); (iii) failure to comply with requirement re certification on nonforum shopping; and b) by the mistress misjoinder due to different venues as ground for severance and thus dismissal insofar as shes concerned 3. Yes, the courts ruling was proper in view of the mandatory language and nature of the pertinent sections of Rule 15 -- (i.e., sections 4, 5, 6, and 7) -- all of which together show that unless a motion is nonadversarial, i.e., cannot be acted upon by the court without prejudicing the adverse party, the same should be set for hearing, etc. 4. a) No, the courts orders were not valid. Where the defendant is abroad, the proper mode of service of summons is extra-territorial service, even if his whereabouts are unknown (Sahagun v. CA). Hence, the order allowing service by publication is not applicable and not valid.

Accordingly, there having been invalid service of summons, the order declaring Mr. A in default was not valid either. b) No, the judgment would nevertheless be improper. Even granting the service of summons was done extra-territorially such that it constituted valid service, the court in this situation would only have acquired jurisdiction over the res, i.e., the mortgaged rural land, but not over the person of Mr. A. Thus the court would have had power to adjudge and award only such amounts for which the res, i.e., the mortgaged land, was directly made responsible for in the contract namely, the principal, the interests and the penalties insofar as these are liquidated (meaning, stipulated, determinable, and exact) amounts. The prayer for recovery of moral and exemplary damages and for attorneys fees are directed towards defendants personal liability and do not arise from nor involve the res because there was no stipulation regarding the same in the mortgage contract. Therefore, the sheriffs acts were invalid to the extent that the judgment was invalid. The amount of the execution proceeds corresponding to principal, interests and penalties is the extent to which the same may be delivered to Mr. B, and the balance should be held in court in trust for Mr. A. c) Even without trial, as stated in section 3 of Rule 9, the court would have had the power to render judgment as the pleadings of Mr. B may warrant. So judgment would be valid to the extent discussed in paragraph 4.b above.