1. Define or describe the difference between summons and subpoena?

Summons (by clerk of court) – is a coercive force by a court aiming to:

a. to give notice to the defendant that an action had been commenced against him;
and
b. to acquire jurisdiction over the person of the accused in a civil case.
Subpoena (by court) – is a process by the court directed to a person which either:
a. require him to attend and to testify at the hearing or trial of an action or at any
action conducted by an authority, or for the taking of his deposition; or
b. requiring to bring with him any books, documents or things under his control and
to testify thereon.

2. Functions and duties of Judge to evaluate evidence/receive evidence (trial on merits).

Judges delegate this to branch of clerk of court. Give example of how this was delegated
by the Judge. (Rule 30, Sec. 9)
General Rule: The judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties.
Exception: The court may delegate the reception of evidence to its clerk of
court who is a member of the bar, under any of the ff:
i. Default hearings
ii. Ex parte hearings
iii. In any case where the parties agree in writing

3.Grounds to dismiss (Lack of Cause of Action). Can it be cured by evidence

presented/amendment to conform with the evidence?
Cause of Action – act or omission by which a party violates a right of another
Motion to Dismiss
1. Lack of jurisdiction over person
2. Lack of jurisdiction over the subject matter of the claim
3. Improper venue
4. Plaintiff has no legal capacity to sue
5. Litis pendentia
6. Res judicata
7. Failure to state cause of action
8. Payment, waiver, abandonment, or extinguishment of the claim or demand set forth in the
plaintiff’s pleading
9. The claim on which the action is founded is enforceable under the provisions of
the statute of frauds
10. Conditions precedent for filing the claim has not been complied with

Demurrer to Evidence
The plaintiff has no right to relief (i.e. insufficient evidence)
4.Demurrer to evidence
Distinguish Demurrer to evidence from motion to dismiss for lack of cause of action.
Demurrer to Evidence - the defendant may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to relief.
MD for LCA -
Distinguish Demurrer to evidence from Demurrer to evidence in criminal case.
1. Effect if denied. In civil cases, if the demurrer is denied, the defendant may proceed
to present his evidence. In criminal cases, the accused may adduce his evidence only if the
demurrer is filed with leave of court. He cannot present his evidence if he filed the demurrer
without leave of court.

2. Effect if granted. In civil cases, if the demurrer is granted, the order of dismissal is
appealable. In criminal cases, if the demurrer is granted, the order of dismissal is not
appealable because of the constitutional policy against double jeopardy. The prosecution can
no longer appeal because the accused has already been acquitted.

3. Motu propio demurrer. In civil cases, the court cannot on its own initiative, dismiss
the case after the plaintiff rests without any demurrer by the defendant; there is no such thing
as motu propio demurrer. In criminal cases, the court may dismiss the action on its own
initiative after giving the prosecution the chance to present its evidence.

4. Leave of court. In civil cases, leave of court is not required before filing a demurrer.
In criminal cases, leave of court may be filed with or without leave of court.

5.Judgment on the Pleadings of the court

General rule: A judgment on the pleadings can be done only upon motion to that
effect filed by the appropriate party. It cannot be rendered by the court motu
proprio.
Exception: If at pre-trial the court finds that a judgement on the pleadings is proper,
it may render judgement motu proprio (Rule 18, Sec.2)

Grounds: If the answer either:

a) Fails to tender an issue
Note: an answer fails to tender an issue due to either:
1. General denial of the material allegations of the complaint
2. Insufficient denial of the material allegations of the complaint
b) Admits the material allegations of the adverse party’s pleading

6.Summary judgment. What are the legal grounds or requisites?

A summary judgment or accelerated judgment is a procedural technique to
promptly dispose of cases where the facts appear undisputed and certain from the pleadings,
depositions, admissions and affidavits on record, or for weeding out sham claims or defenses
at an early stage of the litigation to avoid the expense and loss of time involved in a trial.

7.Distinguish Final judgment and Final order.

Final Judgment - is the final, decisive act that resolves a dispute in court. It is always
in writing and signed by the judge, and it declares who wins the lawsuit and what, if anything,
the winner receives as the prevailing party. Ordinarily, a judgment resolves all of the disputes
between all of the parties in the case.
Final order – it resolves a dispute between the parties but does not normally resolve
the entire case. In many cases, dozens or even hundreds of orders may be issued before a
final judgment is signed in a case. For example, orders of continuance, orders of transfer,
docket control orders and discovery orders, none of which actually resolve the lawsuit. Also,
while judgments are always in writing, orders sometimes are not – orders may simply be
issued verbally from the judge in open court.

8.Distinguish Local and Foreign order.

A judgment or final order of a tribunal of a foreign country, having jurisdiction to
render judgment or final order
a. In case of a judgment or final order upon a specific thing, the judgment or final order,
is conclusive upon the title to the thing, and
b. In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest
by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

9.What is the effect of amendment of motion before it becomes final and executory. Can you
do this even after Judgment have become final.

10.Judgment NON PRO TUNC and give example.

Judgment nunc pro tunc is an action by a trial court correcting a clerical (rather than
judicial) error in a prior judgment. A nunc pro tunc may be signed even after the trial court
loses its plenary power.
Ex: Incorrect amount of child support indicated in a court order furnished to a party,
which amount differs from the order of the judge.

11.What is immutability of final judgment and give examples.

Immutability of final judgment – A principle wherein a decision that has acquired
finality becomes unalterable, and may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact and law, and whether it be
made by the court that rendered it or by the Highest Court of the land. This principle,
commonly known as the doctrine of immutability of judgment, has a two-fold purpose,
namely:
(a) to avoid delay in the administration of justice and thus, procedurally, to make orderly the
discharge of judicial business; and
(b) to put an end to judicial controversies, at the risk of occasional errors, which is precisely
why courts exist.

12.Rule 23 Different modes of discovery.

a. Depositions pending action (Rule 23);
b. Depositions before action or pending appeal (Rule 24);
c. Interrogatories to parties (Rule 25)
d. Admission by adverse party (Rule 26);
e. Production or inspection of documents and things (Rule 27); and
f. Physical and mental examination of persons (Rule 28).

13.State the order of trial in civil case. “Process”

a. Plaintiff shall adduce evidence in support of his claim
b. Defendant shall adduce evidence in support of his defense, counterclaim, and 3rd
party complaint
c. 3rd party defendant (if any) shall adduce evidence of his defense, counterclaim,
crossclaim, and 4th party complaint
d. 4th party (and so forth) shall adduce evidence of the material facts pleaded by them
e. Parties whom any counterclaim or crossclaim has been pleaded shall adduce evidence
in support of their defense, in the order prescribed by the court
f. Parties may respective adduce rebutting evidence only
g. Upon admission of evidence, the case shall be submitted for decision, unless the court
directs the parties to argue or to submit their respective memoranda or any further
pleadings

14.Give the rule on consolidation of cases or severance of cases.

Consolidation of cases (Rule 31, Sec.1)
When actions involving common questions of law/fact are pending before the court, it
may:
a. Order a joint hearing/trial of any/all the matters in issue in the actions
b. Order all the actions consolidated
c. Make such orders concerning the proceedings as to avoid unnecessary costs or
delays
Where a case has been partially tried before one judge, the consolidation of the same
with another related case pending before another judge who had no opportunity to
observe the demeanor of the witness during trial makes the consolidation not mandatory.
Severance of trial (Rule 31, Sec.2)
The court may issue separate trials for convenience or to avoid prejudice:
 a. Of any claim, crossclaim, counterclaim, or 3rd party complaint
b. Of any separate issue
c. Of any number of claims, crossclaims, counterclaims, 3rd party complaints or issues

15.What are the rules or grounds for motion of new trial or motion of reconsideration.
a. Fraud (extrinsic), accident, mistake (of fact and not of law) or excusable negligence
which ordinary prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights;
b. Newly discovered evidence (Berry Rule), which he could not, with reasonable diligence,
have discovered and produced at the trial, and which if presented would probably alter
the result.
c. For the grounds of fraud, accident, mistake, or excusable negligence, attachment of
affidavit of merit is required; otherwise, it would be a pro forma motion.

1. A motion for new trial should be filed within the period for taking an appeal. Hence, it
must be filed before the finality of the judgment (Sec. 1). No motion for extension of
time to file a motion for reconsideration shall be allowed. In Distilleria Limtuaco vs. CA,
143 SCRA 92, it was said that the period for filing a motion for new trial is within the
period for taking an appeal.
2. The period for appeal is within 15 days after notice to the appellant of the judgment
or final order appealed from. Where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within 30 days from notice of the
judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in
special proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40).