19. Bar Examination Questions (Conclusion), Legal Ethics and Practical Exercises.pdf

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extracted text: 1961 BAR EXAMINATION QUESTIONS (Conclusion) REMEDIAL LAW I. {a) Distinguish; (1) "admission" from "declaration against interest", (2) action from special proceeding, (3) Factum probrius from fa~tum probandnm., (4) preventive mjunction from mandatory injunction, and (5 ) aim:ndcct pleading- from a supplemental JJieading. ( b) In civil cases, when may a pleading in the CFI be amcnde<l as a matter of cou1·sc and when may it I.le amended only by leave o_f court? 11. FACTS: After the plaintiff rested his case in an crdinary civil action in the Court of First Instance, th\.: defendant filed a · motion to dismiss for insufficiency 'of evidence, reserving the r:gi'lt to present his evidence in case hi:,; mot ion is denied. QUESTIONS: {l) Suppose the court finds that th:i plaintiff's evidence is sufficient to prove a pl"fnu.i f acic cas~, and consequently denies the motion, may the court forthwith render judirment in faVL ' I' of the p!aintiff or should the c.ou1 t allow the defendant to present his evidence first? Reason out your answer. (2) Suppose the Court of First Instance grants the defend::.n!'s motion, but on appeal to the Court of Appeals. th·• lalter finds that the lower court erred, should the Cou1t of Appeals proceed lo render judgment in favor of the plaintiff, or should it remand the case to the lower court for rereption of the defendant's evidence and furthe1· p1·~eedings? III. (a) When and under what circumstances: (l) may a defendant file a third party complaint? (2) may a person be permitted to intervene in a civil action? (3) may a person file an action for interpleadet? (b) Over what <;.ases does the Juvenile and Domestic Rclat·ons Court h:i.ve exclusive orib'inal jurisdiction? IV. (a) A group of 40 laborers had been in the employ of a corporation for many years until they resigned in December, 1959. At the time of their separation from the service, they were each entitled to re-ceive from the corpo!'ation the i;um of PU,000.00 rep1·eaenting their overtime pay arising from the Eight--Hour Labor Law, as well as their gratuity arising from a collective bargaining ai'reement, which the corporation refused to pay despite repeated demands therefor. Henoo, they filed a petition with the Cou!'t of Industrial Relations against the corporation for the collection of the above.slated sum. But the defendant's counS(!I f led a 1110tion to dismiss, oontending that. it is the Court of First Instance which had jurisdiction over the subject matter. Decide the moti•m. RcaMn briefly. (b) Point out four (4) instances when a w;tness may be inte1·rogated by leading questions on direct examination. V. (a) In the special pr~ceding on the intestate of San Jcsc, & parcel of land is adjudicated pro-indiviso to heira Juan and Pedro, and Juan wants to compel immediate partition thereof. As Juan's lawyer, what would yo11 do. Reason briefly. (b) In a certain civil case, Armando, an official of the BI R, was utilized as the sole witne:s.s for the plaintiff, and the defendant's counsel wa.nted to adduce evidence to prove the bad moral character of Annan® for truth, honesty and integrity, in order to discredit his testimony. Hence, defendant's counsel called on Toribio to testify that on two dif!P-rent occasions, Armando sclicitcd bribes from Toribio in connection with the latter's tax case pending with the BIR. But the plaintiff's counsel objected to Toribio's testimony. Rule on the objection. Reason briefly. V I. (a) Ptirit out three (3) ways of impeaching a judicial reco -,!. (b) What are the rt:(!uisites in .1rder that an admission of a partner may be admissible in evidence lllf(l.inst his co--partncr? '\'!!. (a) In c:riminai actions, when may a mere sult\m()nS be issued instead of warranl of arrest? (b) Lite thrt.-e (3) instftnces w,here fin~! judgment in civil cases may be executed, as of r;ght, before the expiration of the time to appt'ul. VIII. (a) State fully the ruks on venue in infer ior courts regarding civil actions. (b) FACTS: Lazaro was an insurance agent assigned to Da· vao, with the obligation to turn over tr. his principa\'s office in !\lanila ail the pr..mliums collected by him. As such agent, Lazaro was able to collect. premiums in Davuo in the total sum of Pl0,000, but he misa1Ji;rop1·iated the entire amount in Davao. QUESTION: Whe1~· is the 11en11e of the criminal action that may be possibly :nstituted ag.:inst Lazaro for his a:Jove-descrlbed acts? Ri>'.lrnn briefly. IX. FACTS: Victor was H:e Director, :ind Lucas the Assistant Director, of the Bureau of Fort:stry. Victor met accident, Jost his dght arm and left leg, and was hospitalized for six months, during which period, Lucas assumed the position of Director of Forestry. On the seventh (7) month, Victor wanted to resume his office as Director but. Luo.as refused to relinquish tho position, c:aiminr: that Victor ha<l been perrrurnently incapacitated to dis· charged the duties of the office. QUESTIONS: (a) What judicial 1 emcdy may Victor avail vf in order lo estab~ish h is right to the office of Director of F orestry? (b) Does Victor have to bring thit matt<"r to the Office of thf' Secretary of Agriculture, and if not satisfied therein, then to the Office of the President, for administrative remedy before he gors to Court? Why? (<') Within what period of lime may Victor possibly bring an activr. aginst Lucas for the recovery of whak\"E'r damages he maY i1a\·1t suffered by rP-nson of th!'! above-described acts of Lucas' X. (a) &at<- or expluin two 1liffcrcnt general rules of " Res [,;. fer Alios Acta". (b) When is a case considered n.; presenting a moot question? (c) Mey the attorney o{ the plaintiff or of the appellant, as t11e ca~e may t:.e, be order<"! tv pay 1hc costs of the suit, :in1\ if so, when! --oOo----LEGAL ETHICS AND PRACTICAL EXERCISES (\Varning: Use letter X, never your own name, as signature of attorney or notary public on any pleading or form cal'.ed for · in thP.s'' quest.ion~. \ (a) What is the power of the Court of Appeals or a Court uf First In& tancc upon the cxiE=tence of any of the grounds for suspcusion or disbarment aga.inst a lawyer? (b) State the effect, and the subsequent prooe.?ding to m; taken, when 1<uch power is exercised. IJ. Disc:.iss the liability of an Attorney-at Law to his client for mist:lkes or errors on matters of law, and for negligence in filing necessary pleading·s and briefs, or in taking the ~teps necessary to perfect an app1:al within t he tune fixe1i by statute or the Rules of Crourl. III. (a) Upon what grounds does a lawyer !ind justi!icatioo in :·l::presenting an accused who has confessed his gui!t to him, or whom he knows to be guilty from the facts disclosed to him. Explain ~our answer. (b) A lawyer was convicted of the crime of bigamy. Su~ scqucntly the President of the Philippines pardoned him uncon· ditionally'. May this lawyer still be disban'.ed "for having been convicted of a crime involving moral turpitude"? Give reasons. (C&ntimrcd 11ext pl'!gc) Pag~ :MS LAWYERS ll'OURNAL November 30, 1961 COURT OF APPEALS DIGEST OF' DECISIONS CERTIORARI; EXECUTION OF JUDGMENT; EXAMIN1\TION OF JUDGMENT DEBTOR; CONTEMPT; EXCESS OJ~ JURISDICTION.- A judgment debtot· can only he required to apJJear and answer concerning his property and income before the Court of First Instance of the province in which he resides or is found, so that an order issued by any other Coutt of First InA ancc dedaring such judgment debtor in contempt and ordering his ttrrP;;t for iailu1e to ::ippcar for such examinatiim is nu!I and void ns issurd in excess of jurisdiction. Chiong Bu Ho11g, vs. Bien1•c11ido Ta11. rt fli., C.4. C.R. Nfl. 27345-R, Jm•e 23, 1900, .-hgclc.~ . J. CEnTIORARI; CONTEMPT ; LACK OF JUP..ISOICT JON OF COURT ISSUING ORDER; EFFECT; WAIVER.-The power to punish for contempt should be used ~paringly, with caution, deliberation, llnd with due regard to the provisions of the law and" the consiit.utional right!I of tho! in,!ividual. Disobedience of, or resi~t ance to, a void mandate, order, judgment, or decree, or one issued by a court without jurisdiction of the subject-matter aiid pa:-ties!ihi::!nt, is net contempt, and where Hw court has no jurisdictior. to make the ord£:r, no waiver can cut Qff the rights of the party to attack its validity. (U.S. Fedcial Trude Commission vs. Fair-foot Prr.ducts Co., 94 F'. 3d, 844; 17 C.J.S. p. 19, note 34.) l!Jid. CRIMINAL LAW: MITIGATING CIRCUMSTANCB: PLBA OF GUILTY WHEN NOT MIT IGA'rING.- A judicial pica of ~uih~· after thr pl"osecution had introduced its evidence is no longer a mitirr.tting circumstance (Pe:ople vs. de la Pena, 66 Phil. 459). Resid~s. a plea of guilty as a mitigating circumstance is not ap1 :\icable to a prosecution under special laws (Article 10, Revised Prnal CodC'; People vs. Ramos, 44 0. G. 3288; U. S. Barba 29 Phil. 206, U S. \'!<. Santiago, 35 Phil. 20; People vs. Maicpiez CA-47 O.G. 4226). , People vs. C1istodio T ecson, CA-G.R. N o. 18256R, June 30, 1960, f'iccio, J. CRll\llNAL PROCEDURE; PL EA OF GU I LTY.~ Upon a judicial plea oi guilty (Sec. 3 Rule 114, Rules of Court), intcrp"sec: by the accused generally upon a1·raignll'ent (before trial on the merit<;), the com1, when sa:isfied that same h•;.d been i11teqll,~:ed freely and voluntarily by the defendant who was well aware of its natul"e ,.ind consequences, may pronounce said accused "guilty" and forthwith convict him without requi1·ing the prosecution to introduce its evidence. And it makes no difference that such plea was made after the introd11ction cf prosecution's evidence. The effect is the same. Ibid. ACTIONS; ACTION FOR PARTITION: PRESCRIPTION. - Generally, an action foi- partition among co-heirs and co-owners doe,; not prescribe. This rule, however, applies only to "actions where19Vl BAH ... (Contim1ed from pa.r,e 3411) IV. A files an action to recover a parcel of land from B b:lsed t:pon a notarial deed of sale and A attaches a copy of the de~d of sale to his complaint. B claims that he did not sell his property to A, and that the signature 1mrporting to be his on the ,l.,eJ i<i li fu1·gery. As lawye1· for B, p1 ·cpare an answer, supri!ying other details. \'. (a) Define and distinguish attorney's contingent fee and champertous fee. (b) In the absence of a written contract between attorney <md dirnt, what factors are lo be considered in determining 1 hc :.tmount of attcrney's fees? Vi. (a) In the event that severnl lawyers representing a party in a case should act differently on any matte1 · relating to the l'tigation, which of these may propel"ly claim the right to bind the client? in the !"iiriits of all parties to their respective shares of the inhcrit:rnce is taken for g ranted but not to an action wherein the plaintiff's l'ight to participate in the inheritance is denied.~ (Baqrnyo vs. Camumot, 40 Phil. 857, 8'?0). Jnlio Dolar et al., vs. Eliseo Dei:rumco.t, d (ll., CA-G.R. No. 24528-R, J11ly 18 , 1%0 , Ampa"o, J. JUDGMENT; ENFORCEMENT; PRESCRIPTIVE PERIOD.A valid· judgment may be enforced either by motion within five years after entry or by action after the lapse of said period but bdoi-e it ;s barred by any statute of limitations, and a vidid <XECUtion issued nnct levy made within the five-year period after entry of judgment may be enforced by the sale of thC property levied upon, 1 >rovided the sale is made within ten years a fler rmi.ry of :,;:uC'h iudg-ment. 1\ie8lol"ci R igo1· Vda. de Q1tiambao, et aL, vs. !lfonila Motor Comµcrn.y, Inc., et ti!., C.'1.-G.R. No. 17031-R, .July 23 , 1960, Nt1livi<lml, J . OHLIGATIONS AND CONTRACTS; VESTED RIGHT, J\IEANING OF.- Vested' right has hc~n defined as accrued, fixet!, si:ttkd, :.:bto:ute, having ihe character or giving the .. jghts c.f nbsohitc nvncrship, not contingent, not subject to be defeated Ly a condition pret·ede11l. Primarily, ;'vested" is to be interpreted as 1ne11ni:lg frre (rom a ll c011ting<>rcy. In this sense, it is nea?"ly €quivalent to ';possessed." However , the word is often used in a different sense from its techniC'al 01· strictly legal meaning; thus, ''vested" has been construed tCJ mean not subject to be divested or indefeasible ; transmissible. I t has alsc been constrned to mea11 payab;e. 67 C.J., pp. 239-240. The Unit<:(/ States of A1neri.cn v.<· f',)(i1v \"t"f/el de Dfos, et 11!, CA -G.R. :Vo. 21474-R, J,tfy 25, 1900, CRIMINAL PROCEDURE; ORAL MOTION TO QUASH; EFFICACY· SECTION 3 RU LE 113 RULES OF COUHT.- Seetion 3 of R~le 113 of th~ Rules of CCiurt states that a motion to ' qu'l>'h sh:t:i bC" in writing, s1i~11ed ~~, the defo11dant or his a1k -rney", and .. shall specify distmctly the ground of objection" rc!ied upon. However, an oral motion to quash presented in open court, at an opportune time, that is, before arraignment, ~nd ba~cd on the ground that more than one offense was charged m th1: information, should be considered as effectively placed before the coul't for its consideration and decision as if it had been in writing·. Tc deny the motion for being void and inefficacious because it was not reduced to writing, is to place inordinate importance on the sha<low rnthcr than on the substance of the law, am! to sfress technicality while denying justice. Hair-splitting technicalities shculd be 0 frowned upon and avoided if they do not square with the ends of justice. People vs. fl!u1111el Ballena , CA-G.R. Nv. 20810-R. .July 25, 1960, Castro, J. (b) What duties, if any, does an attorney owe to a client, after the termination of the relationship of attorney and client? VI I. Drnf~ a motion for leave to i11krvene in n civil case. Snpply necessary tletails. V III. (a) Draw an infornlation fo1· filing in the Court of First Instance, charging an accused for estafa. Supply the necessary cietails. (b) Prepu re a motion to quash !:nid information on any of the grounds provided by law. IX. What inhibitions, if any, are imposed upon members of the R:ir who ~,.e likew ise members of Congress in the practice of the law profession and why? X. Pn•prt!·e the following: (a) Jurat; (b) aeknowledgemer.t in a deed of sale consisting of more than two pages and coverin~ three pai·cels of land ; (c) attestation clause in a last will and tcst:,ment ; (d) arfi<la\·it of Go:i<l l~aith in a Chii.ttel Mn1·tgage. No\·embc!r 30, 1961 LAWYEHS \JOURNAL Pngc 34'.)
Date: 1961
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