Mid-Term Exam Remedial Law Essay Example

Mid-Term Exam Remedial Law Essay Mid-Term Exam 1. Distinguish Cause of action from action SUGGESTED ANSWER: A CAUSE OF ACTION is an act or omission of one party in violation of the legal right or rights of the other (Maao Sugar Central vs. Barrios, 79 Phil. 606; Sec. 2 of new Rule 2), causing damage to another. An ACTION is an ordinary suit in a court of Justice by which one party prosecutes another 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 concept of remedial law? SUGGESTED ANSWER: The concept of Remedial Law lies at the very core of procedural due process, which means a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered (Albert v. University Publishing, G. R. No. 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 invasion (Bustos v. Lucero, G. R. No. L-2068, October 20, 1948; First Lepanto Ceramics, Inc. v. CA, G. R. No. 110571, March 10, 1994). 3. How shall the Rules of Court be construed? SUGGESTED ANSWER: The Rules of Court should be liberally construed in order to promote their objective 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, strict observance of the rules is an imperative necessity when they are considered indispensable to the prevention of needless delays and to the orderly and speedy dispatch of Judicial business. (Alvero vs. Judge de la Rosa, 76 Phil. 428) 4. Distinguish between substantive law and remedial law. We will write a custom essay sample on Mid-Term Exam Remedial Law specifically for you for only $16.38 $13.9/page Order now We will write a custom essay sample on Mid-Term Exam Remedial Law specifically for you FOR ONLY $16.38 $13.9/page Hire Writer We will write a custom essay sample on Mid-Term Exam Remedial Law specifically for you FOR ONLY $16.38 $13.9/page Hire Writer SUGGESTED ANSWER: SUBSTANTIVE LAW is that part of the law which creates, defines and regulates rights concerning life, liberty, or property, or the powers of agencies or instrumentalities for the administration 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 venue? SUGGESTED ANSWER: JURISDICTION treats of the power of the Court to decide a case on the merits, while VENUE refers to the place where the suit may be filed. In criminal actions, however, venue is jurisdictional. Jurisdiction is a matter of substantive law; venue, of procedural law. Jurisdiction may be not be conferred by consent through waiver upon a court, but 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 effects of the following: 1 Splitting a single cause of action: and 2 Non-joinder of a necessary party. SUGGESTED ANSWER: 1. The effect of splitting a single cause of action is found in the rule as follows: If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment on the merits in any one is available as a ground for the dismissal of the others. (Sec. 4 of Rule 2) 2. The effect of the non-joinder of a necessary party may be stated as follows: The court may order the inclusion of an omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion without justifiable cause to a waiver of the claim against such party. The court may proceed with the action but the judgment rendered shall be without prejudice to the rights of each necessary party. (Sec. 9 of Rule 3) 7. Rolando filed a petition for declaration of the nullity of is marriage to Carmela because of the alleged psychological incapacity of the latter. After trial, the court rendered judgment dismissing the petition on the ground that Rolando failed to prove the psychological incapacity of his wife. The judgment having become final, Rolando filed another petition, this time on the ground that his marriage to Carmela had been celebrated without a license. Is the second action barred by the judgment in the first? Why? 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 marriage 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 35(3),Family Code]. They are different causes of action because the evidence required to prove them are not the same. [Pagsisihan v. Court of Appeals, 95 SCRA 540 (1980) and other cases]. . The plaintiff sued the defendant in the RTC for damages allegedly caused by the latter’s encroachment on the plaintiff’s lot. In his answer, the defendant denied the plaintiff’s claim and alleged that it was the plaintiff who in fact had encroached on his (defendant’s) land. Accordingly, the defendant counterclaimed agai nst the plaintiff for damages resulting from the alleged encroachment on his lot. The plaintiff filed an ex parte motion for extension of time to answer the defendant’s counterclaim, but the court denied the motion on the ground that it should have been set for hearing. On the defendant’s motion, therefore, the court declared the plaintiff in default on the counterclaim. Was the plaintiff validly declared in default? Why? 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 answered within ten (10) days from service. (Rule 11, sec. 4). However, a counterclaim that raises issues which are deemed automatically joined by the allegations of the Complaint need not be answered. Gojo v. Goyala, 35 SCRA 557 (1970)]. In this case, the defendant’s counterclaim is a compulsory counterclaim which arises out or is connected with the transaction and occurrence constituting the subject matter of the plaintiff’s claim. It raises the same issue of who encroached on whose land. Hence, there was no need to answer the co unterclaim. 9. 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. 1 Should the judge grant the defendant’s motion for production and inspection of the original of the promissory note? Why? 2 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? 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 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. (2) The defendant is not required to deny under oath the genuineness and due execution of the promiss ory 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 obey the order of the court for the production and inspection of the promissory note. [Rule 29 Sec. 3(c)]. 10. What is forum shopping? SUGGESTED ANSWER: Forum shopping is the act of a party which consists of filing multiple 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 Import Corp. v. CA, G. R. Nos. 112438-39, December 12, 1995).