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In Remedial Law
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UNIVERSITY of BATANGAS
ON
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NOT FOR SALE.
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Citations omitted.
2. The trial court dismissed a civil complaint without prejudice.
What is the remedy available to the aggrieved party?
Ans. Certiorari under Rule 65. It is clearly provided under the Rules of
Court that am order dismissing an action without prejudice is correctible by
Certiorari under Rule 65 of the Rules of Court, of course, subject to the
filing of the requisite motion for reconsideration.
13. What rule shall govern the action for annulment of judgment if
it is filed with the CA in the exercise of its exclusive original jurisdiction ?
Ans. Rule 47.
If the A.V. of the property is P20k and below and the property is in
the province, then the MTC has exclusive original jurisdiction. If the A.V. of
the property is above P20k and the property is in the province, then the RTC
has exclusive original jurisdiction. If the A.V. of the property is P50k and
below and the property is in the NCR, then the MeTC has exclusive original
jurisdiction, and if the A.V. of the property is above P50k and the property is
in the NCR, then the RTC has exclusive original jurisdiction.
Basis:
"Sec. 33. (3) Exclusive original jurisdiction in all civil actions which
involve title to, or possession of, real property, or any interest therein where
the assessed value of the property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila,
where such assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses and costs.
Basis:
Ejectment, unlawful detainer and forcible entry are special civil action
cases (Rule 70, Rules of Court), but also considered as real actions. The only
difference is that these cases are governed by the Rules on Summary
Procedure, a proceeding summary in nature; an expeditious means of
preventing an alleged illegal possessor of property from unjustly continuing
his possession for a long time, thereby insuring the maintenance of peace
and order in the community, as, otherwise, the party illegally deprived of
possession might feel the despair of long waiting and decide, as a measure
of self-protection, to take the law into his hands and seize the same by force
and violence.
Basis: 1997 RRSP Section 3 (B) All pleadings shall be verified. (A) the
only pleadings allowed to be filed are the complaints, compulsory
counterclaims and cross-claims pleaded in the answer, and the answers
thereto.
Within the fifteen (15) day period from promulgation judgment for
attempted homicide, Phrobie filed a notice of appeal solely to reduce the
imposed penalty from an indeterminate penalty from four (4) months of
arresto mayor, as minimum, to two (2) years and four (4) months of
prision correccional, as maximum, to a straight penalty of one (1) year,
and argued in the notice of appeal that since he pleaded guilty to the
crime charged when arraigned, straight penalty of one (1) year is the
proper one and not the indeterminate penalty from four (4) months of
arresto mayor, as minimum, to two (2) years and four (4) months of
prision correccional, as maximum.
(a). on penalty imposed issue, will you dismiss the appeal if Phrobie
fails to file his appeal memorandum?
(b). on the civil aspect alleging in the notice of appeal that all the
medical receipts representing P2M hospitalization expenses presented
during the trial were all photocopies, not authenticated, and the same
were not formally offered in evidence, thus, no factual basis, will you
dismiss the appeal if Phrobie fails to file his appeal memorandum?
(c). You are the trial judge, and Phrobie immediately applied for
probation upon receipt of notice affirming in toto on appeal your ruling on
Phrobies imposed of indeterminate penalty, will you allow him to avail
the benefit of probation?
Ans. (a) If Phrobie will fail to file his appeal memorandum appealing
the decision as regards penalty imposed against him, I WILL NOT dismiss the
appeal, because submission of memorandum or brief is not a mandatory
requirement. It is optional on the part of the appellant. The Rules provides
that the RTC shall decide the case on the basis of the entire record of the
case.
HOT ITEM
19. Mary and Joey were childhood friends and became sweethearts
when they reached seventeenths and lived together when they were
eighteenth. Mary gave birth to Peter when she was nineteenth. On their
twenties, Mary and Joey were enticed by an ecclesiastical minister in the
Manila City hall to have their union documented sans marriage ceremony,
but both of them were not required to sign any document. The Marriage
Certificate was duly recorded and intact with the National Statistics Office
(now Philippine Statistics Authority). After securing copy of their Marriage
Certificate, they caused to legitimize Peters status from illegitimate to
legitimated. Thereafter, their union turned sour and became
irreconcilable.
Rule 108 of the Rules of Court sets forth the rules on cancellation or
correction of entries in the civil registry, to wit:
SEC. 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the cancellation
or correction of any entry relating thereto, with the Regional Trial Court of
the province where the corresponding civil registry is located.
SEC. 4. Notice and Publication. Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the same,
and cause reasonable notice thereof to be given to the persons named in
the petition. The court shall also cause the order to be published once a
week for three (3) consecutive weeks in a newspaper of general circulation
in the province.
SEC. 7. Order. After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or correction prayed for.
In either case, a certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in his record.
Rule 108 creates a remedy to rectify facts of a persons life which are
recorded by the State pursuant to the Civil Register Law or Act No. 3753.
These are facts of public consequence such as birth, death or marriage,
which the State has an interest in recording.
In Corpuz v. Sto. Tomas, G.R. No. 186571, August 11, 2010, 628 SCRA
266, the High Court said that the recognition of the foreign divorce decree
may be made in a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of Court) is precisely to
establish the status or right of a party or a particular fact (Fujiki vs.
Marinay,G.R. No. 196049, June 26, 2013).
NOTE: In Fujiki vs. Marinay, the judge upon receipt of the petition,
immediately dismissed the case on simple ground that it failed to comply
with A.M. No. 02-11-10-SC, as the petition is an ordinary civil actions for
declaration of nullity and annulment of marriage.
While the Philippines does not have a divorce law, Philippine courts
may, however, recognize a foreign divorce decree under the second
paragraph of Article 26 of the Family Code, to capacitate a Filipino citizen to
remarry when his or her foreign spouse obtained a divorce decree abroad.
HOT ITEM
21. Johanna filed a petition to declare her missing husband as dead.
Her petition was granted by the trial court. The government being the
sole oppositor, appealed the decision of the trial court to the Court of
Appeals. The trial court gave due course to the notice of appeal. Is the
trial court correct in giving due course to the notice of appeal? If your
answer is yes, why? And if not, why not?
Ans. It depends.
Art. 247. The judgment of the court shall be immediately final and
executory.
Clear from Rule 109 that an interested person may appeal in special
proceedings from an order or judgment rendered by the trial court where
such judgment or order relating to the settlement of estate.
When what is left are not genuinely issues requiring trial but
questions concerning the proper interpretation of the provisions of some
written contract attached to the pleadings, judgment on the pleadings is
proper (Philippine National Bank vs. Utility Assurance & Surety Co., Inc.,
G.R. No. 32915, September 1, 1989 cited in (Pacific Rehouse Corporation
vs. EIB Securities, Inc., G.R. No. 184036, October 13, 2010).
A motion for judgment on the pleadings admits the truth of all the
material and relevant allegations of the opposing party and the judgment
must rest on those allegations taken together with such other allegations as
are admitted in the pleadings. It is proper when an answer fails to tender
an issue, or otherwise admits the material allegations of the adverse partys
pleading.
HOT ITEM
23. What are remedy to defendant if he is ordered declared in
default ?
Ans. (1) a motion to set aside the order of default under Section
3(b), Rule 9 of the Rules of Court, if the default was discovered before
judgment could be rendered, or course, with motion to admit attached
answer;
(2) a motion for new trial under Section 1(a) of Rule 37, if the default
was discovered after judgment but while appeal is still available, with
motion to admit attached answer;
(3) a petition for relief under Rule 38, if judgment has become final
and executory, with motion to admit attached answer; and
(4) an appeal from the judgment under Section 1, Rule 41, even if no
petition to set aside the order of default has been resorted to (Lina vs. CA,
135 SCRA 637 cited in Indiana Aerospace University vs. CHED, G.R. No.
139371, April 4, 2001).
(b). The prosecutor did not gravely abuse his discretion when he also
filed a estafa case against Dimaculangan.
26. Small claims court rendered its judgment in the morning of July
11, 2016 against the Deffie, and after lunch the break a motion for
issuance of a writ of execution was filed by Plaintie. On the same day, the
sheriff implemented the writ and took the motorcycle that was parked
inside Deffies garage. The sale on auction is set on August 29, 2016 at
8:30 in the morning at the Pasig City Hall of Justices lobby. Unknown to
the sheriff, the tricycle belonged to Deffies son, Joey.
(a). If any, what is the remedy available to Deffie, and when to avail
the same?
(b). What is the remedy, if any, available to Joey, and where and
when to avail the same?
Ans. (a). Since the judgment in small claims cases is immediately
executory, and appeal is not available. Deffie's remedy is Certiorari under
Rule 65, provided that there is clear grave abuse of discretion to be imputed
against the judge that rendered the decision. He may avail this remedy
within 60-day period from receipt of notice of judgment.
(b). The remedy available to Joey is to file a third party claim. this is
authorized by Section 16 of Rule 39 of the Rules of Court, to be availed of
by executing an affidavit showing his title or right to the property executed.
(a) will you entertain the petition for relief from judgment?
However, in one case, Hilario vs. People, April 14, 2008, the accused
after he was found guilty of homicide, filed a petition for relief from
judgment when his counsel failed to file a notice of appeal within the
reglementary period despite request. The High Court gave due course to
the notice of appeal, because his life, liberty, or property is subjected to
restraint or in danger of loss.
HOT ITEM
26. What are the requirements for an indigent litigant to be
exempted from paying docket fees and other legal fees?
Ans. Indigent litigants are exempted from payment of docket and
other legal fees, provided that the following requisites must concur:
(1) their gross income and that of their immediate family do not
exceed an amount double the monthly minimum wage of an employee;
(2) who do not own real property with a fair market value as stated in
the current tax declaration of more than Three Hundred Thousand
(P300,000.00) Pesos;
(3) the legal fees shall be a lien on any judgment rendered in the case
favorable to the indigent litigant unless the court otherwise provides;
(4) the litigant shall execute an affidavit that he and his immediate
family do not earn a gross income above-mentioned, and they do not own
any real property with the fair value aforementioned, supported by an
affidavit of a disinterested person attesting to the truth of the litigant's
affidavit. The current tax declaration, if any, shall be attached to the
litigant's affidavit; and
(5) Any falsity in the affidavit of litigant or disinterested person shall
be sufficient cause to dismiss the complaint or action or to strike out the
pleading of that party, without prejudice to whatever criminal liability may
have been incurred (Spouses Algura vs. City of Naga, G.R. No. 150135,
October 30, 2006).
REASON: The cost of living in some other areas like Metro Manila is
different from the cost of living in the provinces or in the municipalities or
cities.
HOT ITEM
27. When do you consider granting an application as indigent
litigant mandatory, and when discretionary?
Ans. If the applicant for exemption meets the salary and property
requirements under Section 19, Administrative Matter No. 04-2-04-SC
effective August 16, 2004 (amending Rule 141), then the grant of the
application is MANDATORY (Spouses Algura vs. City of Naga, G.R. No.
150135, October 30, 2006).
In People vs. Piccio, 732 SCRA 254, the High Court allowed the
aggrieved party to file a petition for certiorari even without the
intervention of the OSG for the purpose of preserving his interest in the civil
aspect of the case..
30. After the court had issued the warrant of arrest and fixed the
required bond, Frendie, without knowing that there was a criminal case
filed with prosecutors office as he did not receive any notice/subpoena,
he immediately posted the required bail and filed the necessary motion
for re-investigation. Pending resolution of his motion, Frendie when
arraigned pleaded not guilty to the charged, and thereafter entered into
stipulations during pre-trial conference. Is admission to bail bar his right
to challenge the regularity of preliminary investigation? Explain your
answer.
Ans. Yes. Because he voluntarily enters his plea and participates
during trial, without previously invoking his objections thereto. The accused
did not vigoruosly and clearly raise his objection prior to his arraignment.
(Leviste vs. Alameda, 626 SCRA 575).
31. In what instance, if any, the public attorneys officials and
employees considered authorized to serve summons?
Ans. Public Attorneys Officials and Employees are authorized to serve
summons. But their authority is limited only to cases involving their client
(A.M. No. 11-10-03-O dated July 30, 2013 entittled Re: Letter dated April
18, 2011 of Chief Public Attorney Persida-Acosta Requesting Exemption
from the Payment of Sheriffs Expenses authorizes the Public Attorneys
Officials and Employees to serve summons pursuant to Section 3, Rule 14
of the 1997 Revised Rules of Civil Procedure).
(b). After Procopios death, his heirs brought his last will to Atty.
Igancia to obtain their respective shares in the estate. Then Atty. Igancia
immediately prepared a deed of partition distributing Procopios estate in
accordance with the terms of her will. Was Atty. Igancias actuation
legally sound?
Ans.
(a). Production of the wills is in the nature of a public or a private
duty. Sections 2 to 5 of Rule 75 provide adequate remedy for the
production of the will.
SEC. 2. Custodian of will to deliver.The person who has custody of a
will shall, within twenty (20) days after he knows of the death of the
testator, deliver the will to the court having jurisdiction, or to the executor
named in the will.
(b) The RTC is not correct, because any party who wants to challenge
the order granting the quashal of the search warrant may do so without the
conformity of the public prosecutor, because applications for search
warrant is not subject to public prosecutors direction and control
(Worldwide Web Corporation vs. People and PLDT, G.R. No. 161106 and
Planet Internet Corp. vs. PLDT, G.R. No. 161266, January 13, 2014).
HOT
34. In this jurisdiction, probable cause plays a very important role in
the administration of justice. What are the differnt types of probable
cause? Explain their respective characteristics or nature and their usages.
Ans. There are four (4) types of probable cause. These are: (1)
probable cause determinable by police officers whether to effect (or not to
effect) a warrantless arrest (in flagrante delito and hot pursuit); (2) probable
cause determinable by the judge whether to issue (or not to issue) search
warrants; and (3) probable cause determinable by the inquest/investigating
prosecutor whether to file (or not to file) criminal information (executive
character or executive probable cause); and (4) probable cause
determinable by the judge upon filing of the information whether to issue
(or not to issue) warrant of arrest if the accused is at large; or whether to
issue (or not to issue) a commitment order if accused is under detention,
and if want of probable cause, whether to dismiss (or not to dismiss) the
case for want of probable cause and forthwith the release of the accused
from detention (judicial character or judicial probable cause), or to require
the prosecutor to submit additional evidence.
On the other hand, Rule 119, Section 17, of the Revised Rules on
Criminal Procedure, upon which petitioner relies reads:
(e) Said accused has not at any time been convicted of any offense
involving moral turpitude.