Mid-Term Exam Remedial Law

Mid-Term Exam 1. Distinguish try of trans go through from lickion SUGGESTED rejoinder A CAUSE OF ACTION is an act or omission of unity party in violation of the legal unspoilt or rights of the other (Maao Sugar Central vs. Barrios, 79 Phil. 606 Sec. 2 of new feel 2), causing damage to other. An ACTION is an ordinary wooing in a salute of jurist by which one party prosecutes some other for the enforcement or protection of a right, or the prevention or redress of a wrong. (Section 1 of former Rule 2). 2. What is the design of remedial righteousness? SUGGESTED ANSWERThe purpose of Remedial justness lies at the very core of procedural due process, which mode a law which hears sooner it condemns, which egress upon inquiry and renders nous only afterwards trial, and contemplates an opportunity to be heard before judgment is rendered (Albert v. University Publishing, G. R. no(prenominal) L-19118, January 30, 1965). Remedial Law is that branch of law which prescribes the method of enforcing the rights or obtaining redress for their usurpation (Bustos v. Lucero, G. R. zero(prenominal) L-2068, October 20, 1948 front Lepanto Ceramics, Inc. v. CA, G. R. no. 110571, March 10, 1994). 3.How shall the Rules of judicature be construed? SUGGESTED ANSWER The Rules of Court should be liberally construed in order to promote their target of securing a just, speedy and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1 1997 Rules of Civil Procedure. ) ADDITIONAL ANSWER However, unforgiving observance of the radiation diagrams is an imperative necessity when they argon considered indispensable to the prevention of traininessless delays and to the slap-up and speedy dispatch of Judicial business. (Alvero vs. hazard de la Rosa, 76 Phil. 428) 4. Distinguish among substantive law and remedial law.SUGGESTED ANSWER SUBSTANTIVE justice is that part of the law which creates, defines and regulates rights concerning life, liberty, or pr operty, or the powers of agencies or instrumentalities for the plaque of public affairs. This is distinguished from REMEDIAL LAW which prescribes the method of enforcing rights or obtaining redress for their invasion (Bustos v. Lucero, G. R. No. L-2068, October 20, 1948). 5. Distinguish jurisdiction from locus? SUGGESTED ANSWER JURISDICTION treats of the power of the Court to decide a case on the merits, piece of music VENUE refers to the place where the lawsuit whitethorn be filed.In criminal actions, however, locus is jurisdictional. Jurisdiction is a thing of substantive law venue, of procedural law. Jurisdiction may be not be conferred by consent through waiver upon a hail, solely venue may be waived, except in criminal cases (Nocum et al. v. Tan, G. R. No. 145022, September 23, 2005 Santos III v. Northwest Airlines, G. R. No. 101538, June 23, 1992). 6. Give the actions of the following 1 Splitting a single draw of action and 2 Non-joinder of a indispensable party. SU GGESTED ANSWER 1.The effect of splitting a single get to of action is put in the rule as follows If two or more suits argon instituted on the basis of the same cause of action, the register of one or a judgment on the merits in all one is available as a kingdom for the dismissal of the others. (Sec. 4 of Rule 2) 2. The effect of the non-joinder of a requisite party may be stated as follows The court may order the inclusion of an omitted necessary party if jurisdiction over his someone may be obtained. The failure to accord with the order for his inclusion without justifiable cause to a waiver of the assume against such(prenominal) party.The court may proceed with the action but the judgment rendered shall be without preconceived idea to the rights of each necessary party. (Sec. 9 of Rule 3) 7. Rolando filed a demand for declaration of the idle words of is conjugation to Carmela because of the alleged psychological idiocy of the latter. After trial, the court rendered jud gment dismissing the petition on the understanding that Rolando failed to prove the psychological folly of his wife. The judgment having become final, Rolando filed another petition, this date on the ground that his conjugation to Carmela had been celebrated without a license.Is the gage action barred by the judgment in the first? wherefore? SUGGESTED ANSWER No, the second action is not barred by the judgment in the first because they are different causes of action. The first is for annulment of spousals on the ground of psychological incapacity under Article 36 of the Family Code, while the second is for declaration of nullity of the marriage in view of the absence of a basic requirement, which is a marriage license. Arts, 9 &038 35(3),Family Code. They are different causes of action because the render needful to prove them are not the same. Pagsisihan v. Court of Appeals, 95 SCRA 540 (1980) and other cases. . The complainant sued the suspect in the RTC for indemnity al legedly caused by the latters violation on the plaintiffs lot. In his declaration, the defendant denied the plaintiffs claim and alleged that it was the plaintiff who in position had encroached on his (defendants) land. Accordingly, the defendant counterclaimed against the plaintiff for damages resulting from the alleged encroachment on his lot. The plaintiff filed an ex parte trend for extension of time to answer the defendants counterclaim, but the court denied the crusade on the ground that it should have been set for hearing.On the defendants social movement, therefore, the court declared the plaintiff in default on the counterclaim. Was the plaintiff validly declared in default? wherefore? SUGGESTED ANSWER No, the plaintiff was not validly declared in default. A motion for extension of time to file an answer may be filed ex parte and need not be set for hearing. Amante vs. Sunga, 64 SCRA 192 (1975). ALTERNATIVE ANSWER The general rule is that a counterclaim must be answe red within ten (10) days from service. (Rule 11, sec. 4). However, a counterclaim that raises resultant roles which are deemed automatically get together by the allegations of the Complaint need not be answered. Gojo v. Goyala, 35 SCRA 557 (1970). In this case, the defendants counterclaim is a exacting counterclaim which arises out or is committed with the transaction and occurrence constituting the subject matter of the plaintiffs claim. It raises the same issue of who encroached on whose land. Hence, there was no need to answer the counterclaim. 9. The plaintiff sued the defendant in the RTC to collect on a promissory note, the terms of which were stated in the disorder and a photocopy attached to the care as an annex.Before answering, the defendant filed a motion for an order directing the plaintiff to progress to the original of the note so that the defendant could inspect it and verify his signature and the written entries of the dates and amounts. 1 Should the judge gra nt the defendants motion for outturn and review of the original of the promissory note? Why? 2 Assuming that an order for production and reassessment was issued but the plaintiff failed to be with it, how should the defendant plead to the alleged execution of the note? SUGGESTED ANSWER 1) Yes, because upon motion of any party showing good cause, the court in which the action is pending may order any party to evoke and permit the surveillance 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. (2) The defendant is not required to deny under oath the legitimacy and due execution of the promissory note, because of the non-compliance by the plaintiff with the order for production and inspection of the original thereof. (Rule 8, sec. 8). ALTERNATIVE ANSWER 2) The defendant may file a motion to dismiss the complaint because of the refusal of the plaintiff to come after the order of the court for the production and inspection of the promissory note. Rule 29 Sec. 3(c). 10. What is forum obtain? SUGGESTED ANSWER Forum shopping is the act of a party which consists of filing duplex suits, simultaneously or successively, for the purpose of obtaining a favorable judgment (Leyson v. Office of the Ombudsman, G. R. No. 134990, April 27, 2000 Yulienco v. CA, G. R. No. 131692, June 10,1999 Chemphil Export &038 Import Corp. v. CA, G. R. Nos. 112438-39, celestial latitude 12, 1995).