...BAR EXAMS QUESTIONS AND ANSWERS 2001 GEN TOPIC: RECEIVERSHIP SPECIFIC: REMEDIES Joaquin filed a complaint against Jose for the foreclosure of a mortgage of a furniture factory with a large number of machinery and equipment. During the pendency of the foreclosure suit, Joaquin learned from reliable sources that Jose was quietly and gradually disposing of some of his machinery and equipment to a businessman friend who was also engaged in furniture manufacturing such that from confirmed reports Joaquin gathered, the machinery and equipment left with Jose were no longer sufficient to answer for the latter’s mortgage indebtedness. In the meantime judgment was rendered by the court in favor of Joaquin but the same is not yet final. Knowing what Jose has been doing. If you were Joaquin’s lawyer, what action would you take to preserve whatever remaining machinery and equipment are left with Jose? Why? (5%) SUGGESTED ANSWER: To preserve whatever remaining machinery and equipment are left with Jose, Joaquin’s lawyer should file a verified application for the appointment by the court of one or more receivers. The Rules provide that receivership is proper in an action by the mortgagee for the foreclosure of a mortgage when it appears that the property is in danger of being wasted or dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt. (Sec. 1 of Rule 59). 2001 GEN TOPIC: WRIT May a writ of preliminary attachment be issued ex-parte...
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...20. People v. Relova Facts: 5 Feb 1, 1975 - Police searched the ice plant owned by Opulencia; they discovered electric wiring, devices and contraptions had been installed without necessary authority from city govt 6 Nov 24, 1975 - Asst. City Fixcal filed info against Opulencia for violation of a city ordinance which prohibits unauthorized wiring installations. 7 Opulencia pleaded not guilty and filed motion to dismiss on the ground that the crime had alrdy prescribed (offense charged was a light felony w/c prescribes 2 mos from discovery thereof.) 8 Lower court dismissed the case 9 Acting City Fiscal filed another info for theft of electric power 10 Opulencia filed Motion to Quash upon the ground of double jeopardy 11 Judge Relova granted motion and dismissed the case. 12 Motion for Recon denied, hence this appeal Issue: WON there was double jeopardy Ratio Decidendi: A person who was charged for violating a city ordinance for having installed a metering device to lower his electric bills which was dismissed for prescription of the offense may not be charged again for theft of electric power under the RPC Reasons: 13 The second sentence of Art. IV Sec. 22 embodies an exception to the gen. Proposition: the consti protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the RPC, provided that both offenses spring from the same act...
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...FIRST DIVISION MYRNA P. ANTONE, Petitioner, -versus- LEO R. BERONILLA, Respondent. | G.R. No. 183824 Present: CORONA,C.J., Chairperson, LEONARDO-DE CASTRO,*DEL CASTILLO, andABAD,**PEREZ, JJ. Promulgated: December 8, 2010 | | | x-----------------------------------------------------------------------------------------x D E C I S I O N PEREZ, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to nullify and set aside the issuances of the Court of Appeals in CA-G.R. SP No. 102834, to wit: (a) the Resolution[1] dated 29 April 2008 dismissing the petition for certiorari under Rule 65, which assailed the trial court’s Orders[2] dated 20 September 2007 and 6 December 2007 in Criminal Case No. 07-0907-CFM for Bigamy; and (b) the Resolution[3] dated 18 July 2008 denying the motion for reconsideration of the first resolution. The trial court quashed the Information on the ground that the elements of Bigamy were rendered incomplete after herein respondent presented documents to prove a fact, which the court believed would negate the allegation in the Information that there was a first valid marriage. The evidence presented showed that respondent later obtained a judicial declaration of nullity of the first union following the celebration of a subsequent marriage. The Antecedents On...
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...Brief Fact Summary. Plaintiff Dennis Burnham, a New Jersey resident, was served with process for divorce by his wife in California, while he was visiting California on business. Synopsis of Rule of Law. Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard. Facts. Plaintiff a New Jersey resident, visited Southern California on business, after which he went to visit his children in the San Francisco Bay area, where his wife resided. Upon returning the children to his wife’s home, Plaintiff was served with a California court summons and a copy of his wife’s divorce petition. Plaintiff made a special appearance in California for the purpose of filing a motion to dismiss on the ground that the court lacked personal jurisdiction over him. The Superior Court denied the motion, and the California Court of Appeal denied mandamus relief. The Supreme Court of the United States then granted certiorari. Issue. Whether the Due Process clause denies a state court jurisdiction over a non-resident who was personally served with process while temporarily in that state, in a suit unrelated to his activities in that state. Held. No. The Supreme Court upheld the ruling of the California Superior Court. Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard...
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...1. Walker v. Texas Division, Sons of Confederate Veterans, No. 14-144 LEGAL QUESTION Do the messages and symbols on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality and has Texas engaged in viewpoint discrimination by rejecting the license-plate design proposed by the Sons of Confederate Veterans? FACTS Texas provides drivers with the opportunity to purchase and utilize specialty license plates. One possible method for the creation of a specialty license plate is if the Texas Department of Motor Vehicles Board (“Board”), by the Board’s initiative or after an application filed by a nonprofit organization, issues a new specialty license plate. See id. If a nonprofit files an application for a new specialty license plate, the plate will only be issued if the design gains the Board’s approval. The Board has the authority to “refuse to create a new specialty license plate if the design might be offensive to any member of the public.” The Texas Division of the Sons of Confederate Veterans (“SCV”) is a nonprofit organization dedicated to preserving the memory and reputation of confederate Civil War veterans. On August 2009, SCV applied for a specialty license plate featuring a logo of the confederate battle flag. Thereafter, the Texas Department of Transportation (“TxDOT”) submitted the application for a vote to its seven-member panel. The TxDOT, responsible for approving specialty license plates in 2009, voted...
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...Supreme Court of the Philippines Batas.org G.R. No. 109125 EN BANC G.R. No. 109125, December 02, 1994 ANG YU ASUNCION, ARTHUR GO AND KEH TIONG, PETITIONERS, VS. THE HON. COURT OF APPEALS AND BUEN REALTY DEVELOPMENT CORPORATION, RESPONDENTS. DECISION VITUG, J.: Assailed, in this petition for review, is the decision of the Court of Appeals, dated 04 December 1991, in CA-G.R. SP No. 26345 setting aside and declaring without force and effect the orders of execution of the trial court, dated 30 August 1991 and 27 September 1991, in Civil Case No. 87-41058. The antecedents are recited in good detail by the appellate court thusly: "On July 29, 1987 a Second Amended Complaint for Specific Performance was filed by Ann Yu Asuncion and Keh Tiong, et al., against Bobby Cu Unjieng, Rose Cu Unjieng and Jose Tan before the Regional Trial Court, Branch 31, Manila in Civil Case No. 87-41058, alleging, among others, that plaintiffs are tenants or lessees of residential and commercial spaces owned by defendants described as Nos. 630-638 Ongpin Street, Binondo, Manila; that they have occupied said spaces since 1935 and have been religiously paying the rental and complying with all the conditions of the lease contract; that on several occasions before October 9, 1986, defendants informed plaintiffs that they are offering to sell the premises and are giving them priority to acquire the same; that during the negotiations, Bobby Cu Unjieng offered a price of P6-million while...
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...Panetti v Quarterman Facts of the Case September 8, 1992 Scott Panetti shaved off his hair, put on his military fatigues (he had served briefly in the Navy), and proceeded to drive to the home of his wife’s parents house. His wife had very recently left him because he was abusive not only to her and their young daughter, but also heavily abused alcohol. He entered the home by breaking into a sliding glass door. While his wife begged him to stop, he pointed his rifle at her mother; shooting and killing her in front of his wife and 3 year old daughter. He proceeded to then shoot her father, again, in front of her and her child. Blood spattered onto their 3 year old daughter. He shot his parents-in-law at extremely close range. After killing Amanda and Joe Alvarado, he took his wife and daughter to the place he had been living and held them captive through the night. The next morning he let them go without any harm. Several hours after releasing them he put on a dress suit and drove to the Giuseppe police station where he turned himself in for the murders. While at the station he explained to the police that an auditory hallucination named Sarge was in control during the murders. He also referenced his act was of divine intervention, therefore his victims did not suffer during their deaths. Scott Panetti had a long history of mental illness. There was a report filed when he served in the Navy in regards to his mental health dating back to 1975. The prior 6 years before the shooting...
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...Resources, seeking to have him cancel all the timber licenseagreements (TLAs) in the country and to cease anddesist from accepting and approving more timber licenseagreements. The children invoked their right to abalanced and healthful ecology and to protection by theState in its capacity as parens patriae . The petitionersclaimed that the DENR Secretary's refusal to cancel theTLAs and to stop issuing them was "contrary to thehighest law of humankind-- the natural law-- andviolative of plaintiffs' right to self-preservation andperpetuation." The case was dismissed in the lower court, invoking the law on non-impairment of contracts,so it was brought to theSupreme Courton certiorari. Issue Did the children have the legal standing to file the case? Ruling Yes. The Supreme Court in granting the petition ruledthat the children had the legal standing to file the casebased on the concept of “intergenerationalresponsibility”. Their right to a healthy environmentcarried with it an obligation to preserve that environmentfor the succeeding generations. In this, the Courtrecognized legal standing to sue on behalf of futuregenerations. Also, the Court said, the law on non-impairment of contracts must give way to the exercise of the police power of the state in the interest of publicwelfare. Relevance The case of Oposa vs. Factoran has been widely citedworldwide for its concept of intergenerationalresponsibility, particularly in cases related to ecologyand the environment. For example: ...
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...Government of Hong Kong v. Judge Olalia Facts: Juan Muñoz was charged before a Hong Kong Court with several counts of offenses in violation of Hong Kong laws. If convicted, he faces a jail term of 7 to 14 years for each charge. After Juan Muñoz was arrested in the Philippines, the Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of Juan Muñoz. On December 20, 2001, Judge Olalia of RTC-Manila allowed Juan Muñoz to post bail. However, the government of Hong Kong alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting him to bail because “there is nothing in the Constitution or statutory law providing that a potential extraditee a right to bail, the right being limited solely to criminal proceedings.” Issue: Whether Juan Muñoz, a potential extradite, be granted bail on the basis of clear and convincing evidence that he is not a flight risk and will abide with all the orders and processes of the extradition court Held: Yes. In a unanimous decision, the SC remanded to the Manila RTC, to determine whether Juan Muñoz is entitled to bail on the basis of “clear and convincing evidence.” If Muñoz is not entitled to such, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. “If bail can be granted in deportation cases, we see no justification...
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...why the example case appeal did or did not succeed. Introduction A defendant can challenge is conviction by filling an appeal to have the conviction overturned. The first appeal filed in most cases in the Federal System and most State Court systems is an appeal of the Statutory Right. If they lose the appeals under the statutory right they may then appeal to the State Supreme Court or the U.S. Supreme Court. But in most cases a defendant does not have the right to file such an appeal. The Supreme Court must agree to hear the defendant’s case. But defendant needs to remember that an Appeals Court is not automatically required to review a case. What is an appeal? An appeal is a petition to a higher court for review of a case that has already been decided by a lower court of law. The petition is made for the purpose of having the lower court’s decision overturned. How do appeals factor into the overall criminal procedures and processes? Merely filing an appeal does not automatically mean that a defendant will find it easy to have the court decision reversed. It is imperative that the defendant shows the court in the appeals process that the initial decision was incorrect or flawed in some way. This can be done by proving that the previous decision was made in error, or by bringing to light new evidence that was not offered in the initial trial. Defendants need to know that appellate courts each have rules that control the...
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...San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) Historical Setting After Civil Rights success in the 1960’s, many of the United States underrepresented citizenry such as minorities and poor searched for equality through the Constitution. In San Antonio, Texas, citizens found that the school finance system was unjust and filed suit under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Federal District Court found that the Texas school finance system violated the Fourteenth Amendment. The State appealed to the Supreme Court. Case Summary San Antonio Independent School District v. Rodriguez (1973) argued that education was a “fundamental right” implied in the Constitution and that poor Hispanic families were being treated as a “suspect class” due to financial disparities between wealthy and poor school districts. The argument was that this inequality of funding between school district’s violated the Equal Protection Clause. The State contended that education was not an Federal enumerated power, therefore it was reserved to the State and that included financial decisions. Court’s Decision The Court found in a 5-4 ruling that this was not a violation of the Equal Protection Clause of the Fourteenth Amendment because education is not a guarantee...
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...1865 to 1900 Write a three to four (3-4) page paper on the period from Reconstruction through widespread industrialization in the Western United States (approximate time period: 1865-1900.) Your paper should cover the following: Identify at least (2) two major historical turning points in the period under discussion. Death of Lincoln in 1865. Lincoln’s death changed the course of the country trying to rebuild after the Civil War. President Andrew Johnson was not popular and could not convince Congress especially the southerners to go along with him. Lincoln had a plan to build up the South and end the hate. He ordered amnesty and that the south be rebuilt. He pardoned, with a few exceptions, any southerner who would swear allegiance to the Union and the United States Constitution. His plan was to let the Confederate states back into the Legislature, but it was not working too well. We will never know how that went because he was assassinated. His idea always was to try to “mend fences” and forgive. The entire civil rights movement was set back because of the death of Lincoln. The Railroad The two railroads, the Union Pacific and Central Pacific met in Utah in May of 1869. It was merely ceremonial, but the real occasion was that it meant the railroads now would run from coast to coast. The availability of the railroad changed the face of the west and the whole of the United States. Remote places now could ship farm products and receive goods from...
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...(Slip Opinion) OCTOBER TERM, 2010 Syllabus 1 NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SNYDER v. PHELPS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09–751. Argued October 6, 2010—Decided March 2, 2011 For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military. The church’s picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs—stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests...
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...Skinner v. Oklahoma 1. Skinner v. Oklahoma, 316 U.S. 535 (1942) This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right that is basic to the perpetuation of a race-the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional questions, we granted the petition for certiorari. The statute involved is Oklahoma’s Habitual Criminal Sterilization Act.Petitioner was convicted in 1926 of the crime of stealing chickens and was sentenced to the Oklahoma State Reformatory. In 1929 hewas convicted of the crime of robbery with firearms and was sentenced to the reformatory. In 1934 he was convicted again of robbery with firearms and was sentenced to the penitentiary. He was confined there in 1935 when the Act was passed. In 1936 the Attorney General instituted proceedings against him. Petitioner in his answer challenged the Act as unconstitutional by reason of the Fourteenth Amendment. It is true that the Act has a broad severability clause. But we will not endeavor to determine whether its application would solve the equal protection difficulty. The Supreme Court of Oklahoma sustained the Act without reference to the severability clause. We have therefore a situation where the Act as construed and applied to petitioner is allowed to perpetuate the discrimination...
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...ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER 3. Special Proceedings – remedy by which a party seeks to establish a status, a right, or a particular fact. CIVIL PROCEDURE CLASSIFICATION OF ACTIONS (A) As to nature ORDINARY ACTION Governed by rules. CIVIL ordinary SPECIAL CIVIL ACTION Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71). Special features not found in ordinary civil actions. RULE 1 GENERAL PROVISIONS Section 1. Title of the Rules The Rules of Court are not penal statutes. They cannot be given retroactive effect. They can, however, be made applicable to cases pending at the time of their passage and therefore are retroactive in that sense. Under the 1987 Constitution, the rule-making power of the Supreme Court has the following limitations: 1. It must provide a simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade; and 3. Shall not diminish, increase or modify substantive rights (Art: VIII Section 5[5]). Section 2. In what courts applicable Section 3. Cases governed ACTION CLAIM An ordinary suit in a A right possessed by one court of justice. against another. One party prosecutes The moment said claim is another for the filed before a court, the enforcement or claim is converted into an protection of a right or action or suit. QuickT the prevention or redress ime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. of...
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