CASES.doc

1. Morata v. Go, 125 SCRA 444 (1983)

Petition for certiorari and prohibition with prayer for writ of prelim injunction to review the order of Judge Tomol CFI Cebu BR11.

FACTS:

Respondent spouses Victor & Flora Go filed in the CFI of Cebu a complaint against petitioners Julius & Ma. Luisa Morata for recovery of a sum of money plus damages amounting to Php49,400.

Petitioners filed a motion to dismiss (MtD) on grounds that of (a) failure of the complaint to allege prior availment by plaintiffs of the barangay conciliation process required by PD1508, as well as (b) the absence of a certification by the Lupon or Pangkat Secretary that no conciliation or settlement had been reached by the parties. The motion was opposed by private respondents. Respondent judge denied the said motion to dismiss. Petitioners filed a motion for recon (MfR) but the same was denied.

RULING:

The Lupon has the authority to settle amicably all types of disputes involving parties who actually reside in the same city or municipality. The law makes no distinction with respect to the classes of civil disputes that should be compromised at the barangay level, in contradistinction to the limitation imposed upon the Lupon over criminal cases. The fact that the city or municipal courts are forum for the nullification or execution of the settlement or arbitration award issued by the Lupon cannot be construed as a limitation of the scope of authority of the Lupon. This merely confers upon the city and municipal courts the jurisdiction to pass upon and resolve petitions or actions for nullification or enforcement of settlement/arbitration awards issued by the Lupon, regardless of the amount involved or the nature of the original dispute. But there is nothing in the context of said sections to justify the thesis that the mandated conciliation process in other types of cases applies exclusively to said inferior courts. The conciliation process at the barangay level is compulsory not only for cases falling under the exclusive competent of the MeTCs and MTCs, but for actions cognizable by the RTCs as well.

Candido v. Macapagal, 221 SCRA 328 (1993)

Petition for certiorari of the orders of Judge Macapagal RTC18 Malolos.

FACTS: RTC judge dismissed the complaint of petitioners Emiliana and Francisca Candido against private respondent Mila Contreras on the ground of lack of jurisdiction for petitioners’ failure to comply with the mandatory bgy conciliation process required by PD1508. Petitioners are the only legitimate children of Agapito Candido and Florencia Santos. However, Agapito eventually left his legitimate family and lived with Sagraria Lozada until his death. Sagraria,

Jorge, Virginia, Maximina, and Eduardo who represented themselves to be the sole heirs of Agapito executed a Deed of Extra-judicial Settlement of Estate with Sale covering parcels of land owned by the latter and sold to private respondent Contreras. Petitioners instituted an action with the RTC to annul the Deed of Extra-judicial Settlement of Estate with Sale. Private respondent filed a Motion to Dismiss on grounds that petitioners failed to comply with mandatory bgy conciliation. RTC approved the MtD. Petitioners filed a MfR which was denied. (Note: other defendants of the civil case reside in different municipalities and cities.)

HELD: The barangay court or Lupon has jurisdiction over disputes between parties who are actual residents of barangays located in the same city or municipality or adjoining barangays of different cities or municipalities. Where some of the other co-defendants reside in barangays of municipalities, cities and provinces different with that of the complainant, compulsory conciliation is not required. The action may be filed directly in court.

2. Ramos v. CA, 174 SCRA 690 (1989)

FACTS: Domingo Ramos authorized his brother Manuel to sell his share of lands owned by them in common with their other brothers and sisters. Manuel did. Later, Domingo revoked the power of attorney and demanded an accounting from Manuel. Manuel refused. Domingo then filed a complaint with the Punong Barangay of Pampanga, Buhangin District, Davao City. Manuel appeared but Domingo did not on the schedule hearing by the Punong Bgy. Domingo was represented, however, by his wife who said her husband wanted to avoid a direct confrontation with his brother. She requested that the Punong Bgy issue a certification that no settlement had been reached so a complaint could be filed in court. The

Punong Bgy complied. Thereupon, Domingo sued Manuel in the RTC Davao, also for accounting, in Civil Case No. 18560-87.

Manuel moved to dismiss the complaint on the ground of non-compliance with the requirements of PD1508. He cited the failure of the Punong Bgy to refer the dispute to the Pangkat ng Tagapagkasundo after the unsuccessful mediation proceedings convened by him. The motion was denied

Manuel then filed with this Court a petition for certiorari which we referred to the CA. CA denied the petition. It held that there was no need for such referral because Domingo had clearly indicated, by his refusal to appear before the Punong Bgy, that no extrajudicial settlement was possible between him and his brother. Manuel is now before us to question this decision.

HELD: The dispute should not have ended with the mediation proceedings before the Punong Barangay because of his failure to effect a settlement. It was not for the Punong Barangay to say that referral to the Pangkat was no longer necessary merely because he himself had failed to work out an agreement between the parties. The Pangkat could have exerted more efforts and succeeded (where he had not) in resolving the dispute. If the complainant refuses to appear before the Punong Barangay, he is barred from seeking judicial recourse for the same course of action. The parties must appear in person without assistance of counsel, except minors and incompetents.

3. Vda. de Borromeo v. Pogoy, 126 SCRA 217 (1983):

Petitioner seeks to stop respondent Judge Pogoy of MTC Cebu from taking cognizance of an ejectment suit for failure of the plaintiff to refer the dispute to the Bgy Lupon for conciliation.

FACTS: The intestate estate of the late Vito Borromeo is the owner of a building located at F. Ramos, Cebu City. Said building has been leased and occupied by petitioner Petra Vda. de Borromeo at a monthly rental of Php500. Private respondent Atty Reyes, administrator of the estate, served upon petitioner a letter demanding that she pay the overdue rentals and thereafter vacate the premises. Petitioner failed to do so. Atty Reyes instituted an ejectment case against the Petra in the MTC. Petitioner moved to dismiss the case, advancing et al, the want of jurisdiction of the MTC. Petitioner contends that the court could not exercise jurisdiction over the case for failure of Atty Reyes to refer the dispute to the Bgy Court as required by PD1508. Respondent judge denied the MtD. After MfR was denied, petitioner filed petitioner for

Certiorari with SC. Atty Reyes admitted not having availed himself of the bgy conciliation process, but justified such omission by citing par4, sec6 PD1508 which allows the direct filing of an action in court where the same may otherwise be barred by the Statute of Limitations as applying to the case at bar.

HELD: Referral of a dispute to the Barangay Lupon is required only where the parties thereto are individuals. An intestate estate is a juridical person and not an individual. The administrator may file the complaint directly in court.

4. San Miguel v. Pundogar, 173 SCRA 704 (1989):

FACTS: Petitioner San Miguel Village School (SMVS) entered into a contract of services with private respondent Christina Triño, where Triño would teach at SMVS during SY1985-86 which would start june85 and end March86. Sometime Aug85, Triño suddenly stopped teaching at SMVS without giving notice of termination and thereby causing difficulties for SMVS. SMVS filed a complaint for breach of contract with damages against respondent Christina Triño

before RTC03 Lanao del Norte. A Certificate to File Action, signed by the Bgy Capt of Bgy Palao, Iligan City, bearing the notation that the “respondent cannot be contacted” was filed along with the complaint. Summons was served upon private respondent thru her husband. Private respondent failed to file an answer within the reglementary period, petitioner SMVS move to declare her in default. RTC granted the motion, declared private respondent in default and designated the Clerk of Court to receive the evidence of the petitioner and thereafter report back to court.

Triño filed a Petition for Relief from Judgment with the RTC, alleging that the court had no juricdiction to render its decision for failure of petitioner to go through the mandatory conciliation procedure prescribed by sec2&6 of PD1508. Triño argued that the certification of the Bgy Capt of Palao was inadequate compliance with PD1508, Triño being a resident of Bgy Tomas Cabili, and not Bgy Palao. RTC, this time presided by Judge Pundogar, issued an order upholding Triño’s contentions and setting aside the assailed decision. Judge Pundogar acknowledged the impropriety of the Petition

for Relief from Judgment, he nonetheless in effect granted the relief sought, holding that the RTC in rendering the decision, acted without jurisdiction “over parties and the subject matter of the action” for failure of petitioner to comply with PD1508. A MfR by petitioner was denied by respondent judge.

HELD: Failure of a plaintiff to comply with the requirements of Katarungang Pambaranggay does not affect the jurisdiction of the court that tried the action. Failure of a plaintiff to go through the required conciliation procedure merely affects the sufficiency, or the maturity or ripeness of the cause of action and the complaint becomes vulnerable to a motion to dismiss, not on the ground of lack of jurisdiction, but rather for want of cause of action or for prematurity. Where, however, the defendant in an action fails for

one reason or another to respond to a notice to appear before the Lupon, the requirement of conciliation proceedings must be regarded as having been satisfied by the plaintiff. A defendant cannot be allowed to frustrate the requirements of the statute by her own refusal or failure to appear before the Lupon and then later to assail a judgment

rendered in such action by setting up the very ground of non-compliance with conciliation proceedings. The alleged failure on the part of a plaintiff to comply with conciliation proceedings must be raised in a timely manner, that is, at the first available opportunity, if such alleged failure is to provide legal basis for dismissal of the complaint. Such failure must be pleaded, in a timely motion to dismiss or in the answer. Failure to so set up that defense produces the effect of waiver of such defense.

5. Uy v. Contreras, 237 SCRA 167 (1994):

Petition for Certiorari under Rule65 for the order of Judge Contreras denying the petitioner’s MtD crim cases for slight physical injuries. MtD is based on the failure of the private respondents, as offended parties therein, to comply with PD1508 and sec18 of 1991 Revised Rule on Summary Procedure requiring referral of disputes to the Lupong Tagapamayapa of the proper bgy.

FACTS: Petitioner Felicidad Uy subleased from respondent Susanna Atayde the other half of the 2nd floor of a building in

Makati. Uy operated and maintained a beauty parlor. Sublease contract expired but Uy was not able to remove all her movable properties.

An argument arose between Uy and Atayde when the former sought to withdraw from the subleased premises her remaining movable properties. The argument degenerated into a scuffle between Uy and Atayde and several of Atayde’s employees.

After having themselves medically examined, private respondents filed a complaint with the bgy capt of Valenzuela, Makati. Confrontation was scheduled on 28apr93 and on that day, only the petitioner appeared. The bgy capt reset the confrontation to 26may93.

On 11may93, the Ofc of the Provincial Prosecutor filed 2 infos for SPI against petitioner with the Makati MTC. Respondent judge ordered the petitioner to submit her counter-affidavit and those of her witnesses. Petitioner submitted the required counter-affidavit wherein she alleged the prematurity of the filing of the crim cases for failure to undergo conciliation

proceedings as she and private respondents are residents of Manila. She also attached a certification by the bgy capt of Valenzuela, Makati that there was an ongoing conciliation between Atayde and Uy.

Petitioner filed MtD crim cases for non-compliance with PD1508. Judge Contreras denied MtD. Judge Contreras held that MtD to be without sufficient merit since the offense subject to these cases occurred in Makati; that bgy Valenzuela had started the conciliation proceedings between the parties but as of 18may93 nothing has been achieved; that the cases were filed directly with the MTC by the public prosecutor on 11may93; and the accused and her witnesses had already filed their counter-affidavits and docs. At this stage of the proceedings, the court believes that the accused had already waived the right to a reconciliation proceeding before the bgy of Valenzuela considering that the accused and complainant are residents of different bgys; that the offense charged occurred in Makati; and finally this offense is about to prescribe. MfR for the order was denied. Hence the special civil action for certiorari.

HELD: Conciliation process at the Barangay level is a condition precedent for the filing of a complaint in Court. Non-compliance with that condition precedent could effect the sufficiency of the plaintiff's cause of action and make his complaint vulnerable to dismissal on the ground of lack of cause of action or prematurity. Pending the first mediation, no case could be validly filed with the courts. Filing of complaint with the lupon suspends the prescriptive period for 60 days at most.

Rogie: Filing a complaint with the lupon signifies that you want to conciliate or mediate. Since filing a case in court would signify that you want to litigate and not mediate. Therefore the conciliation should be finished before one can file a case in court.

Escolin: Labor cases are exempt from Barangay Conciliation proceedings because the labor court has its own experts at arriving at an amicable settlement.

6. Gegare v. CA, 177 SCRA 471 (1989)

this case involves a small piece of land. The decision was to cut it into 2 between the parties. Petitioner wants the whole lot while the private respondent if happy with his half.

FACTS: a 270sq.mtr lot situated in GenSan was titled in the name of Paulino Elma. A reversion case was filed by the Republic against Paulino and the lot was reverted to the mass of public domain subject to disposition and giving preferential right to its actual occupant, Napoleon Gegare. Both petitioner and private respondent filed an application for the lot in the Board of Liquidators (Board). Board resoleved to dispose the lot in favor of petitioner by way of a negotiated sale. Private respondent protested against the

application of petitioned, then Board denied the said protest. A request for recon of private respondent was referred by the Board to Artemio Garlit, liquidator-designee, GenSan Branch for verification and investigation. After which, Garlit submitted a report to the Manila Ofc recommending division of the lot to the parties. Nevertheless, the Board denied the protest because the case had already been decided by the court.

However, a MfR filed by private respondent was favorably considered by the Board. Board directed the chief of LASEDECO to investigate the occupancy and area of the lot. Findings were that only private respondent was the actual occupant so the LASEDECO chief recommended the division of the property.

Both parties appealed to the Ofc of the President but both appeals were dismiss. A MfR filed by petitioner was denied on 29may84

Private respondent paid for the value of ½ of the lot and applied for the issuance of a patent. Patent was issued to ½ portion of the lot. Petitioner was also adviced to file his application and pay his portion.

Petitioner filed an action for “Annulment and Cancellation of Partition” and/or to Declare them Null and Void” against private respondent and the Board.

Private respondent filed MtD the complaint on the grounds et al …(5) lack of conciliation efforts pursuant to sec6 PD1508. The motion was granted.

Petitioner MfR thereof to which an opposition was filed by private respondent. MfR was granted and private respondent was required to file his responsive pleading. Private respondent filed his answer. On 24jul86, private respondent asked for a prelim hearing of the grounds for the MtD in his affirmative defenses. This was denied.

Private respondent filed a petition for certiorari and prohibition in the CA questioning the said orders of the trial court. CA granted the petition, declaring the questioned orders null and void, and directing the trial court to dismiss the civil case for lack of jurisdiction. MfR filed by petitioner was denied. Thus, the herein petition.

HELD: Where the case involves residents of the same barangay, it must comply with conciliation proceedings even if a government instrumentality is one of the defendants. If the other only adverse party is the government or its instrumentality or subdivision, the case falls within the exception. But when the government instrumentality is only one of multiple adverse parties, a confrontation should still be undertaken among the other parties.

7. Galuba v. Laureta, 157 SCRA 627 (1988):

HELD: The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of the 10 days from the date thereof unless repudiation of the settlement has been made or a petition for nullification of the award has been filed before the proper city or municipal court. Having failed to repudiate the amicable settlement within the 10-day period, petitioner is left with no recourse but to abide by its terms.

8. Raymundo v. CA, 213 SCRA 457 (1992):

A claim of attorney's fees is only incidental to its principal cause of action and therefore not determinative of the jurisdiction of the court. An action to remove the illegal and unauthorized installation of glasses at a condominium unit is not capable of pecuniary estimation and falls under the exclusive jurisdiction of the RTC. In determining whether an

action is one the subject matter of which is not capable of pecuniary estimation the criterion is first to ascertain the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the MTC or in the RTC would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by the RTC.

9. Ortigas v. Herrera, 120 SCRA 89 (1983)

Facts: Ortigas and respondent entered into an agreement whereby Ortigas agreed to sell to the respondent a parcel of land with a special condition that should respondent as purchaser complete the construction including the painting of his residential house on said lot within 2 years from purchase, Ortigas would refund to respondent the amount of P10 per square meter. When the aforesaid special condition was fulfilled, respondent notified Ortigas in writing and requested for his refund. Upon failure of

Ortigas to pay his obligation, respondent filed a complaint for sum of money and damages with the City Court. Ortigas fails in his attempt to dismiss the complaint on the ground of lack of jurisdiction.

Held: The action involved in this case is one for specific performance and not for a sum of money and therefore incapable of pecuniary estimation because what private respondent seeks is the performance of petitioner's obligation under a written contract to make a refund but under certain specific conditions still to be proven or established. In a case for the recovery of a sum of money, as the collection of a debt, the claim is considered capable of pecuniary estimation because the obligation to pay the debt is not conditioned upon any specific fact or matter. But when a party to a contract has agreed to refund to the other party a sum of money upon compliance by the latter of certain conditions and only upon compliance therewith may what is legally due him under the written contract be demanded, the action is one not capable of pecuniary estimation and is within the jurisdiction of the RTC. The payment of a sum of money is only incidental which can only be ordered after a determination of certain acts the performance of which being the more basic issue to be inquired into.

Counterclaim filed in MTC in excess of the MTC’s jurisdictional amount is considered waived (Agustin v. Bacalan, GR L-46000).

NOTE: case of specific performance for delivery of title of real property from people engaged in the realty business is within the primary jurisdiction of the HLURB.

Legados v. de Guzman, 170 SCRA 357 (1989):

The rule now (1989) is MTCs have jurisdiction over offenses punishable with at most 4 years and 2 months (now [2001] 6 years), regardless of other imposable accessory penalties or civil liability. Simple seduction is now within the MTC’s jurisdiction even if the offender may be compelled to acknowledge and give support to the offspring.

SEC v. CA, 201 SCRA 124 (1991)

Facts: The Uy Family owned 2 corporations: UBS Marketing and Soon Kee. Uy-Flores and Uy-Chua were managing directors and had custody of corporate accounting and tax records of both corporations. As a result of a family dispute, the family resolved to assign all their shares in UBS to Johnny Uy, while Johnny Uy assigned all his shares in Soon Kee to the rest of the family. Johnny Uy demanded from Uy-Flores and Uy-Chua the UBS corporate books, funds, properties and records. His request was denied, hence he filed a case before the SEC. Uy-Flores and Uy-Chua filed MTD on the ground that the SEC has no jurisdiction, because there was no intra-corporate dispute. This was denied. CA reverses holding that since Uy-Flores and Uy-Chua were no longer stockholders and directors of UBS, there was no intra-corporate relationship and hence no intra-corporate dispute.

Held: The SEC has jurisdiction over intra-corporate disputes. Intra-corporate dispute is one which arises between a stockholder and the corporation. The SEC has no jurisdiction over a controversy wherein one of the parties involved is not

or not yet a stockholder of the corporation. This rule negating the jurisdiction of the SEC however, does not apply where one of the parties was a former stockholder and the controversy arose out of this relation.

In the case at bar, at the time of the execution of the Deeds of Assignment the parties were all interlocking stockholders and officers of the 2 corporations. Hence, the deeds of assignment were intra-corporate transactions which arose from intra-corporate relations or between and among the stockholders of the two 2 corporations. The controversy is, therefore, an intra-corporate controversy which falls within the original and exclusive jurisdiction of the SEC.

The fact that when the complaint was filed with the SEC, Uy-Flores and Uy-Chua were no longer stockholders of the UBS did not divest the SEC of its jurisdiction. The existence of the intra-corporate relationship at the time of the filing of the complaint does not determine the jurisdiction of the SEC. The fact that the intra-corporate relationship has apparently terminated does not deprive the SEC of its jurisdiction to hear and decide the controversy which arose from that relationship. The determining factor is whether the controversy arose out of intra-corporate relations.

10. Primero v. IAC, 156 SCRA 435 (1987):

Labor arbiters now have jurisdiction to award damages. Failure to claim moral damages in the illegal dismissal case

before the Labor Arbiter bars the subsequent claim for moral damages in a regular court.

11. Tipait v. Reyes, 218 SCRA 592 (1993)

Facts: Labor Arbiter orders employer to reinstate the employee and to pay backwages. Decision became final and writ of execution was issued. The employer now files an action for prohibition to restrain enforcement of the writ of execution.

Held: A civil case to restrain enforcement of a writ of execution issued by labor officials is in the nature of a motion to quash such writ of execution. It is the labor officials who has jurisdiction over the case, not the civil courts.

12. Manliguez v. CA, 232 SCRA 427 (1994)

Facts: Employer was ordered in a final judgment to pay its employees. Writ of execution was issued and enforced by levying on property. Manliguez filed a complaint which sought the lifting of the levy over, and annulment of the sale of, the property on the ground that Manliguez was the owner of such property and that the employer was just leasing it from him.

Held: Where the civil case is to lift levy over and annulment of the sale of the property on the ground that it was not owned by the respondent in the labor case, the civil court has jurisdiction. Where the action attacked the regularity of the

issuance of the writ of execution in the labor case, the labor officials have jurisdiction. If the action does not attack the issuance, but the manner of execution, the civil courts have jurisdiction.

***Note: In Tipait, there was an employer-employee relationship between the plaintiff in the civil case and the judgment obligee in the labor case. In Manliguez, there was no such relationship.

13. Trade Union of the Phils. v. Coscolluela, 140 SCRA 302 (1985)

Facts: Super Garments and Rustan Commercial Corporation have separate compartments in the same building. TUPAS filed a notice of strike against Super Garments. Alleging that goods of Super Garments were spirited out of its strike-bound premises thru Rustan's warehouse, TUPAS picketed Rustan as well. Rustan thus files a petition for injunction and damages before the RTC and NLRC to enjoin the union from picketing its premises. RTC after finding no employer-employee relationship between the parties, issued the writ of preliminary injunction. TUPAS files a case of Unlawful delegation of Legislative Power (ULP) against both Super Garments and Rustan alleging that the former is but the manufacturing arm of the latter. TUPAS claims that the RTC has no jurisdiction to issue an injunction because the case is a labor dispute, that the prerogative belongs to the Secretary of Labor and Employment.

Held: Where no employer-employee relation exists between the parties, there is no labor dispute. The civil courts, not labor officials, has jurisdiction. There is no labor dispute between the TUPAS and Rustan. Therefore Rustan was justified in seeking relief in before the RTC. The ULP complaint filed by TUPAS does not prove a labor relationship. Furthermore, it was improper for Rustan to have filed a case with the NLRC.

14. Painaga v. Cortes, 202 SCRA 245 (1991)

Power and authority given to the Director of Lands to alienate and dispose of public lands does not divest the regular courts of their jurisdiction over possessory actions instituted by occupants or applicants against others to protect their respective possessions and occupations. While the jurisdiction of the Bureau of Lands is confined to the determination of the respective rights of rival claimants to public lands or to cases which involve disposition of public lands, the power to determine who has the actual, physical possession or occupation or the better right of possession over public lands remains with the courts. A protest filed before the Bureau of Lands seeking the cancellation of OCT on the ground of fraud differs from Civil Case for injunction to protect prior possession. The administrative protest boils down to the question of ownership of the area in controversy, while the court action is concerned merely with possession.

15. Pestanas v. Dyogi, 81 SCRA 574 (1978)

Where a party seeks the cancellation of a free patent with the Bureau of Lands, he must pursue his action in the proper Department and a review by the Courts will not be permitted unless the administrative remedies are first exhausted.

Note: In Painaga, the action before the courts was for mandatory injunction to stop invasion into its property. In Pestanas, the action was for cancellation of patent.

Villamor v. Salas, 203 SCRA 540 (1991)

An RTC has no jurisdiction to declare as unjust a judgment of another RTC and sentence the judge thereof liable for damages. Only the higher appellate courts, namely, the CA and the SC, are vested with authority to renew and correct errors of the RTC.

Vital-Gozon v. CA, 212 SCRA 235 (1992)

The CA has jurisdiction to award moral and exemplary damages in original special civil actions of mandamus, even without an express grant from statute.

Cabrera v. Tiano, 8 SCRA 542 (1963)

FACTS: Josefina Potestas Cabrera and her sister Cresencia Potestas Omulon filed an action for “Partition and Recovery of Real Estate, with Damages against Mariano Tiano. Their complaint alleged that they were entitled to a portion of the

land, since Josefina did not sign the Deed of Sale while Cresencia was a minor at the time of the sale.

Tiano claimed that he was the absolute owner of the land by acquisitive prescription of 10yrs, from the date of purchase 02jul47. Plaintiffs commenced this case on 20jun57. Court issued summons on 21jun57. Defendant received the summons on 02jul57 which was incidentally, the end of the 10yr prescriptive period.

The trial court declared that the plaintiffs are entitled each to 1/8 of the property in question plus P1,000 damages for both of them and P200 attorney’s fees. Defendant moved for recon and was denied.

Defendant appealed to SC contending that prescription has already set in. He insists that the period should be counted from the date the summons was served on him. He claims that the judicial summons, which could civilly interrupt his possession, was received by him only of 02jul57.

HELD: Civil actions are deemed commenced from date of the filing and docketing of the complaint with the Clerk of Court, without taking into account the issuance and service of summons. Commencement of the suit prior to the expiration of the prescriptive period, interrupts the prescription period.

Sun Insurance v. Asuncion, 170 SCRA 274 (1989)

FACTS: Petitioner Sun Insurance filed a complaint with the Makati RTC for the consignation of a premium refund on a fire insurance policy with prayer for the judicial declaration of its nullity against private respondent Manuey Uy Po Tiong. Private respondent was declared in default for failure to file the required answer within the reglementary period.

Private respondent filed a compliant in the Quezon City RTC for the refund of premiums and the issuance of a writ of preliminary attachment. Only the amount of P210 was paid by private respondent as docket fee which prompted petitioner to raise objection. Upon order of the SC, the case was assigned to a different branch due to under-assessment of docket fees.

The case was thereafter assigned to Judge Asuncion who required the parties to comment on the Clerk of Court’s letter-report signifying her difficulty in complying with the SC Resolution since the pleadings filed by private respondent did not indicate the exact amount sought to be recovered.

Private respondent filed a Re-Amended complaint stating therein a claim of not less than 10M as actual compensatory damages in the prayer. However, the body of the amended complaint alleges actual and compensatory damages and atty’s fees in the total amount of about P44,601,623.70

Judge Asuncion issued another Order admitting the second amended complaint and stating that the same

constituted proper compliance with the SC Resolution. Petitioner filed a petition for Certiorari with the CA questioning the order of Judge Asuncion. Private respondent filed a supplemental complaint alleging an additional claim of P20M as damages bringing the total claim to P64,601,623.70. CA denied petition and granted writ of prelim attachment.

HELD: 1) It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period. 2) Permissive counterclaims, third party claims and similar pleadings, shall not be considered filed until and unless the filing fee prescribed therefore is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period. 3) If the judgment awards a claim not specified in the pleading, or if specified the

same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment.

PETITION DISMISSESD for lack of merit.

Escolin: There are some compulsory counterclaim that needs payment of docket fees, and some which does not.

Hodges v. CA, GR 87617, 184 SCRA (1990)

FACTS: Gellada filed an action for damages against Hodges in the Iloilo CFI for some alleged defamatory statements of defendant against plaintiff. The defendant pointed out that the court cannot acquire jurisdiction over the case unless the corresponding docket fee is paid. CFI ruled against Hodges. CA affirmed CFI ruling.

HELD: SC reversed CA ruling. Filing fees should be paid in full for the court to acquire jurisdiction. Partial payment of docket fees prevents the court from acquiring jurisdiction and any proceeding undertaken thereafter is null and void.

Spouses de Leon v. CA, 287 SCRA (1998)

FACTS: Private respondent Elayda filed in the Quezon City RTC a complaint for annulment or rescission of a contract of sale of 2 parcels of land against petitioners. The trial court

held the fees should be based on the value of the property. CA reversed and held that the flat rate of P400 should be charged.

HELD: An action for rescission of contract should be treated similar to an action for specific performance. An action for rescission of contract is one which cannot be estimated and therefore the docket fee for its filing should be the flat amount for actions incapable of pecuniary estimation, regardless of the value of the real property which is the subject of the contract.

Manchester Development v. CA, 149 SCRA 562 (1987)

Facts: Manchester filed an action for torts and damages and specific performance. Body of the complaint specified amount of damages, but the prayer did not. Complaint was amended deleting all amounts. Only after court order did complainant specify the amount, but still only in the body, not in the prayer. Said amended complaint was admitted.

Held: In civil cases, all pleadings should specify in both the body and prayer the amount of damages sought. The court does not acquire jurisdictions until the proper docket fee has been paid. Where an action is both for specific performance and damages, the docket fees must be based on the total damages sought to be recovered, even if it is not spelled out in the prayer. Where the prayer clearly shows that the action was one for damages, there can be “no honest difference of opinion” as to the amount of filing fees. Where payment was insufficient and there was “no honest difference of opinion” as to the correct amount of filing fees, the court never acquired jurisdiction over the original complaint. There was thus no complaint to amend. Docket fees must be based on the original, not amended complaint. A case is deemed filed only upon payment of the docket fee regardless of the actual date of filing in court. Henceforth, the amount sought to be recovered should be stated both in the body of the complaint and in prayer.

Escolin: The SC in Manchester prohibited plaintiffs in civil cases from not specifying the amount of damages.

Manuel v. Alfeche, 259 SCRA 475 (1996)

Facts: Manuel filed a libel case against writer/author and editors of the newspaper Panay News. RTC found 3 people to be guilty but acquitted a fourth accused. However the civil

indemnity by way of moral damages were dismissed for lack of jurisdiction. Complainant in a libel case, where the information stated the amount of moral damages, did not pay filing fees for the impliedly instituted civil action.

Held: When a civil action is deemed impliedly instituted with the criminal, when the amount of damages, other than actual, is alleged in the complaint or information filed in court, then the corresponding filing fees shall be paid. However, when the amount of damages is not so alleged, filing fees need not be paid

and shall simply constitute a first lien on the judgment, except in an award for actual damages (in every crime there is also civil liability. These are the actual damages. Thus they should not be charged docket fees). In no case shall filing fees for actual damages be collected.

Manuel case is applicable to civil cases impliedly instituted with criminal cases. In purely civil actions, the Manchester ruling applies.

de Leon: Note that under the Criminal Procedure Rules of 2000, filing fees for actual damages may be collected in case of cases for violation of BP 22.

Citizen Surety v. Melencio-Herrera, 38 SCRA 369 (1971)

FACTS: Spouses Dacanay were indebted to Citizens’ Surety Insurance. As security, the Dacanays mortgaged a parcel of land in Baguio. Since they were not able to pay said debt, the said lot was sold in a foreclosure sale. However, proceeds of the sale were insufficient to satisfy said debt. Thus Citizens’ Surety filed a complaint with the Manila CFI, seeking to recover the balance, plus 10% thereof as atty’s fees, and other costs.

At petitioner’s request, respondent Judge caused summons to be made by publication in the Phils Herald. But despite the publication and deposit of a prepaid copy of the complaint at the Manila Post Office, defendants did not appear within the

period of 60days from last publication, as required by the summons.

Plaintiff then asked that defendants be declared in default; but instead, respondent Judge asked it to show cause why the action should not be dismissed, the suit being in personam and the defendants not having appeared. Respondent Judge dismissed the case despite plaintiff’s argument that the summons by publication was sufficient and valid under sec16 Rule14 RRC.

HELD: Where the action is in personam (e.g. action for deficiency judgment), the Court could not validly acquire jurisdiction on a non-appearing defendant, absent a personal service of summons. Without such personal service, any judgment on a non-appearing defendant would be violative of due process. Summons by publication cannot confer upon the court jurisdiction over said defendants, who does not voluntarily submit himself to the authority of the court. The proper recourse for a creditor is to locate properties, real or personal, of the resident defendant debtor and cause them to be attached, in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective. The case should not be dismissed but should be held pending in the court's archives, until plaintiff succeeds in determining the whereabouts of the defendants'

person or properties and causes valid summons to be served personally or by publication.

Escolin: Citizen Surety could not have availed of summons by publication because this provision applies only to actions in rem or quasi in rem.

He should have invoked Rule 57, Sec. 1 (f) (on provisional remedies; Prel. attachment) to convert the action into quasi in rem

Section 1. Grounds upon which attachment may issue. — At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:

(f) In an action against a party who does not reside and is not found in the Philippines,

or on whom summons may be served by publication.(1a)

Bachrach Motor v. Icarañgal, 68 Phil 287 (1939)

FACTS: Icarañgal, with Figueroa, for value received, executed in favor of Bachrach, a promissory note; and

executed a real estate mortgage on a parcel of land in Laguna as security for the pro note.

Thereafter, promissors defaulted in the payment of the agreed monthly installments. Bachrach instituted in the Manila CFI an action for the collection of the amount due. Judgment was rendered for the plaintiff. A writ of execution was issued and in pursuance thereof, the Laguna sheriff, at the indication of the plaintiff, levied on the properties of the defendants, including the mortgaged lot.

The other defendant herein Oriental Commercial, interposed a third-party claim, alleging that by virtue of a writ of execution issued in a civil case in the municipal court of Manila City, the said lot had already been acquired by it at the public auction. Thus the sheriff desisted from the sale of the property and the judgment in favor of Bachrach remained unsatisfied.

Bachrach then instituted an action to foreclose the mortgage. Trial court dismissed the complaint. Thus Bachrach took the present appeal.

HELD: An action for a collection on a loan and an action for foreclosure of the mortgage that secures such loan are based on one a single cause of action (i.e. default of the debtor). Such actions can not therefore be split or filed separately. The filing or judgment on one action will necessarily bar the filing of the other.

Industrial Finance Corp. v. Apostol, 177 SCRA 521 (1989)

FACTS: Spouses Padilla bought on credit 3 units of Isuzu trucks from Industrial Transport & Equipment. They executed a prom note for the balance of the purchase price. This was secured by a chattel mortgage of said trucks and, as additional collateral, a real estate mortgage on their land.

<as bet. Padillas and IFC>

The Padillas failed to pay several installments on the prom note, the assignee Industrial Finance Corp. (IFC) sued them in the CFI for the recovery of the unpaid balance including attys fees.

CFI ruled on 16Apr75 in favor of assignee IFC. On appeal, CA sustained the CFI’s ruling except for modification of attys fees from 25% to 12% of the balance.

<as between the IFC + padillas and the Delmendos>

Meanwhile on 09Sep71 private respondents Juan and Honorata Delmendo filed a complaint against IFC, as principal party, and the Padillas, as formal parties, in respondent CFI. The Delmendos alleged that they were the transferees of the real property which was mortgaged earlier by the Padillas to Ind’l Transport. The Delmendos prayed for the cancellation of the mortgaged lien annotated of the TCT and the delivery to them by petitioner of the owner’s copy of said title with damages and attys fees, considering that IFC

waived its rights over the mortgage when it instituted a personal action against the Padillas for collection of sum of money.

IFC moved for the dismissal of the complaint, contending that is has not waived its right over the mortgage lien. The Delmendos filed a motion for summay judgment which the CFI granted.

CFI ruled in favor of the Delmendos. IFC filed a MfR which was denied. Hence this petition.

HELD: A mortgage creditor may elect to waive his security and instead bring an ordinary action to collect with the right to execute on all the properties of the debtor, including the subject-matter of the mortgage. If he fails in the collection suit, he can not thereafter foreclose on the mortgage.

Escolin: In case of splitting of a single cause of action, the ground for dismissal is res judicata.

Escolin: If there is one cause of action but two remedies, the plaintiff should have pleaded alternative remedies in his complaint.

Progressive Development Corp. v. CA, 301 SCRA 637 (1999)

Facts: Pursuant to a lease contract, for non-payment of rentals Progressive (lessor) repossessed the leased properties and seeks to auction-off movable property found therein.

Westin Seafood Market (lessee) files a forcible entry case before the MTC against the lessor.

Settlement was agreed upon (deposit of money in the designated bank) which was reneged (meaning: go back on promise) by the plaintiff.

Lessor seeks to auction-off lessee’s properties again. Lessee now files a case for damages with the RTC against the lessor.

Lessor filed a MtD the damage suit on the ground of litis pendencia and forum shopping.

Instead of ruling on the motion, Judge Santiago issued an order archiving the case pending the outcome of the forcible entry case being heard at the MeTC for the reason that “the damages is principally anchored on whether or not the defendants (petitioner herein) have committed forcible entry.”

Petitioner moved for recon of the order and reiterated its motion to dismiss the damages suit.

Before petitioner’s MtD could be resolved, private respondent filed with the RTC an amended complaint for damages. Westin also filed an Urgent Ex-Parte Motion for the Issuance of a TRO and Motion for the Grant of a Prelimi Prohibitory and Prelim Mandatory Injunction. RTC denied petitioner’s MtD and admitted Westin’s amended complaint and granting the TRO.

Progressive filed with CA a special civil action for certiorari and prohibition in the ground that Judge Santiago acted in excess of his jurisdiction and/or committed grave abuse of discretion amounting to lack of jurisdiction in admitting the amended complaint of Westin and issuing a restraining order against Progressive; in allowing private respondent to engage in forum shopping; and, taking cognizance of the action for damages despite lack of jurisdiction. CA dismissed the petition due to the failure of petitioner to file a MfR of Judge Santiago’s order, which it explained was a prerequisite to the institution of a petition for certiorari and prohibition. CA also found that the elements of litis pendencia were lacking to justify the dismissal of the action for damages with the RTC because despite the pendency of the forcible entry case with the MeTC the only damages recoverable thereat were those caused by the loss of the use and occupation of the property and not the kind of

damages being claimed before the RTC which had no direct relation to loss of material possession.

CA clarified that since the damages prayed for in the amended complaint with the RTC were those caused by the alleged high-handed manner with which petitioner reacquired possession of the leased premises and the sale of Westin’s movable found therein, the RTC and not the MeTC had jurisdiction over the action of damages.

Petitioner filed petition for review on certiorari under Rule 45 alleging that CA erred in finding that petitioner failed to avail of its plain, speedy and adequate remedy of a prior MfR with the RTC; ruling that the trial judge did not act with grave abuse of discretion in taking cognizance of the action for damages and injunction despite the pendency of the forcible entry case with the MeTC; and ruling that private respondent did not commit forum shopping since the causes of action before the RTC and MeTC were not identical with each other.

Held: Petition is with merit. While generally a MfR must first be filed before resorting to certiorari in order to give the lower court an opportunity to correct the errors imputed to it, this rule admits of exceptions and is not intended to be applied without considering the circumstances of the case.

The filing of the MfR before availing of the remedy of certiorari is not sine qua non when

1. the issue raised is one purely of law, or

2. where the error is patent or

3. the disputed order is void, or

4. questions raised on certiorari are the same as those already squarely presented to and passed upon the lower court.

The MtD the action for damages with the RTC on the ground that another action for forcible entry was pending at the MeTC between that same parties involving the same matter and cause of action.

Outrightly rejected by the RTC, the same issue was elevated by petitioner on certiorari before the CA.

Clearly, any MfR on the trial court would have been a pointless exercise.

The forcible entry and damages case arose from a single cause of action. Hence, the case for damages may be dismissed.

Petition is granted. CA decision and order of RTC reversed and set aside. RTC directed to dismiss the damages case. MeTC directed to proceed with forcible entry case.

Escolin: The SC was wrong.

Previous jurisprudence ruled that in cases filed with the MTC, a compulsory counterclaim in excess of the jurisdiction of the MTC should be filed as a separate action, or if filed in the same action, the excess is waived.

de Leon:

Under Rule 70, if a claim in an ejectment case in the MTC is for reasonable use of the property, the claim may go beyond the jurisdiction of the MTC.

But if the claim is other than reasonable use of the property, it must be within the jurisdiction of the MTC.

de Leon:

Counterclaims for moral and exemplary damages in ejectment cases before the MTC should be within the the amounts prescribed for summary procedure.

Agustin v. Bacalan, 135 SCRA 340 (1985)

Facts: Administrator of estate-lessor files a case for ejectment before the City Courts against the lessee. Lessee files counterclaim in excess of the City Court’s jurisdiction. City Court decides for plaintiff. On

appeal, CFI rules for defendant and grants him damages. This became final. Plaintiff files separate for nullifying the CFI decision on the ground that the

damages awarded was beyond the jurisdiction of the City Court.

Held: A counterclaim not presented in the lower court can not be entertained on appeal. Defendant is deemed to have waived his counterclaim in excess of the City Court’s jurisdiction. It is as though it has never been brought before City Court. It may not be entertained on appeal. The amount of judgment, therefore, obtained by the defendant-appellee on appeal, cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the defendant's counterclaim in excess of the jurisdictional amount, the appellate court, likewise, acquired no jurisdiction over the same by its decisions or otherwise. When court transcends the limits prescribed for it by law and assumes to act where it has no jurisdiction, its adjudications will be utterly void and of no effect either as an estoppel or otherwise. The excess award of the CFI is therefore null and void. Action to declare nullity of award is proper. The award not in excess stands.

Escolin: A compulsory counterclaim beyond the jurisdiction of the court can be filed as a separate action.

Maceda v. CA, 176 SCRA (1989)

Facts: Transferee of leased property files an ejectment case against the lessee.

Lessee sets up counterclaim for reimbursement of renovation expenses, in excess of the MTC’s jurisdiction.

MTC ejects lessee. RTC reinstates lessee and orders plaintiff to reimburse lessee. CA affirms RTC but deletes award of reimbursement.

Held: MTC had no jurisdiction over the excess counterclaim. Hence, neither did the RTC.

A counterclaim in excess of the limit may be pleaded only by way of defense to weaken the plaintiff's claim, but not to obtain affirmative relief.

Bayang v. CA, 148 SCRA 91 (1987)

Facts: Pending a quieting of title case, defendant dispossesses the plaintiff. CA rules in favor of plaintiff.

Plaintiff now files separate action for the fruits (income) during the period of dispossession.

Held: Ownership of the land and income from the land is a single cause of action in case of quieting of title. The claim for the income from the land was incidental to a claim for ownership of the land.

During the whole period of dispossession, plaintiff made no move to amend his complaint to include a claim for the income supposedly received by the defendant.

Failure to do so is res judicata to the subsequent case.

Famador: Compulsory counterclaims should be filed with the original case.

Permissive counterclaims may be filed in a separate case.

Escolin:

Plaintiff should have filed a supplementary complaint after the defendant has dispossessed him.


FACTS: Spouses Dacanay were indebted to Citizens’ Surety Insurance. As security, the Dacanays mortgaged a parcel of land in Baguio. Since they were not able to pay said debt, the said lot was sold in a foreclosure sale. However, proceeds of the sale were insufficient to satisfy said debt. Thus Citizens’ Surety filed a complaint with the Manila CFI, seeking to recover the balance, plus 10% thereof as atty’s fees, and other costs.

At petitioner’s request, respondent Judge caused summons to be made by publication in the Phils Herald. But despite the publication and deposit of a prepaid copy of the complaint at the Manila Post Office, defendants did not appear within the period of 60days from last publication, as required by the summons.

Plaintiff then asked that defendants be declared in default; but instead, respondent Judge asked it to show cause why the action should not be dismissed, the suit being in personam and the defendants not

having appeared. Respondent Judge dismissed the case despite plaintiff’s argument that the summons by publication was sufficient and valid under sec16 Rule14 RRC.

HELD: Where the action is in personam (e.g. action for deficiency judgment), the Court could not validly acquire jurisdiction on a non-appearing defendant, absent a personal service of summons. Without such personal service, any judgment on a non-appearing defendant would be violative of due process. Summons by publication cannot confer upon the court jurisdiction over said defendants, who does not voluntarily submit himself to the authority of the court. The proper recourse for a creditor is to locate properties, real or personal, of the resident defendant debtor and cause them to be attached, in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective. The case should not be dismissed but should be held pending in the court's archives, until plaintiff succeeds in determining the whereabouts of the defendants'

person or properties and causes valid summons to be served personally or by publication.

Escolin: Citizen Surety could not have availed of summons by publication because this provision applies only to actions in rem or quasi in rem.

He should have invoked Rule 57, Sec. 1 (f) (on provisional remedies; Prel. attachment) to convert the action into quasi in rem

Section 1. Grounds upon which attachment may issue. — At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:

(f) In an action against a party who does not reside and is not found in the Philippines,

or on whom summons may be served by publication.(1a)

Bachrach Motor v. Icarañgal, 68 Phil 287 (1939)

FACTS: Icarañgal, with Figueroa, for value received, executed in favor of Bachrach, a promissory note; and

executed a real estate mortgage on a parcel of land in Laguna as security for the pro note.

Thereafter, promissors defaulted in the payment of the agreed monthly installments. Bachrach instituted in the Manila CFI an action for the collection of the amount due. Judgment was rendered for the plaintiff. A writ of execution was issued and in pursuance thereof, the Laguna sheriff, at the indication of the plaintiff, levied on the properties of the defendants, including the mortgaged lot.

The other defendant herein Oriental Commercial, interposed a third-party claim, alleging that by virtue of a writ of execution issued in a civil case in the municipal court of Manila City, the said lot had already been acquired by it at the public auction. Thus the sheriff desisted from the sale of the property and the judgment in favor of Bachrach remained unsatisfied.

Bachrach then instituted an action to foreclose the mortgage. Trial court dismissed the complaint. Thus Bachrach took the present appeal.

HELD: An action for a collection on a loan and an action for foreclosure of the mortgage that secures such loan are based on one a single cause of action (i.e. default of the debtor). Such actions can not therefore be split or filed separately. The filing or judgment on one action will necessarily bar the filing of the other.

Industrial Finance Corp. v. Apostol, 177 SCRA 521 (1989)

FACTS: Spouses Padilla bought on credit 3 units of Isuzu trucks from Industrial Transport & Equipment. They executed a prom note for the balance of the purchase price. This was secured by a chattel mortgage of said trucks and, as additional collateral, a real estate mortgage on their land.

<as bet. Padillas and IFC>

The Padillas failed to pay several installments on the prom note, the assignee Industrial Finance Corp. (IFC) sued them in the CFI for the recovery of the unpaid balance including attys fees.

CFI ruled on 16Apr75 in favor of assignee IFC. On appeal, CA sustained the CFI’s ruling except for modification of attys fees from 25% to 12% of the balance.

<as between the IFC + padillas and the Delmendos>

Meanwhile on 09Sep71 private respondents Juan and Honorata Delmendo filed a complaint against IFC, as principal party, and the Padillas, as formal parties, in respondent CFI. The Delmendos alleged that they were the transferees of the real property which was mortgaged earlier by the Padillas to Ind’l

Transport. The Delmendos prayed for the cancellation of the mortgaged lien annotated of the TCT and the delivery to them by petitioner of the owner’s copy of said title with damages and attys fees, considering that IFC

waived its rights over the mortgage when it instituted a personal action against the Padillas for collection of sum of money.

IFC moved for the dismissal of the complaint, contending that is has not waived its right over the mortgage lien. The Delmendos filed a motion for summay judgment which the CFI granted.

CFI ruled in favor of the Delmendos. IFC filed a MfR which was denied. Hence this petition.

HELD: A mortgage creditor may elect to waive his security and instead bring an ordinary action to collect with the right to execute on all the properties of the debtor, including the subject-matter of the mortgage. If he fails in the collection suit, he can not thereafter foreclose on the mortgage.

Escolin: In case of splitting of a single cause of action, the ground for dismissal is res judicata.

Escolin: If there is one cause of action but two remedies, the plaintiff should have pleaded alternative remedies in his complaint.

Progressive Development Corp. v. CA, 301 SCRA 637 (1999)

Facts: Pursuant to a lease contract, for non-payment of rentals Progressive (lessor) repossessed the leased properties and seeks to auction-off movable property found therein.

Westin Seafood Market (lessee) files a forcible entry case before the MTC against the lessor.

Settlement was agreed upon (deposit of money in the designated bank) which was reneged (meaning: go back on promise) by the plaintiff.

Lessor seeks to auction-off lessee’s properties again. Lessee now files a case for damages with the RTC against the lessor.

Lessor filed a MtD the damage suit on the ground of litis pendencia and forum shopping.

Instead of ruling on the motion, Judge Santiago issued an order archiving the case pending the outcome of the forcible entry case being heard at the MeTC for the reason that “the damages is principally anchored on whether or not the defendants (petitioner herein) have committed forcible entry.”

Petitioner moved for recon of the order and reiterated its motion to dismiss the damages suit.

Before petitioner’s MtD could be resolved, private respondent filed with the RTC an amended complaint for damages. Westin also filed an Urgent Ex-Parte Motion for the Issuance of a TRO and Motion for the Grant of a Prelimi Prohibitory and Prelim Mandatory Injunction. RTC denied petitioner’s MtD and admitted Westin’s amended complaint and granting the TRO.

Progressive filed with CA a special civil action for certiorari and prohibition in the ground that Judge Santiago acted in excess of his jurisdiction and/or committed grave abuse of discretion amounting to lack of jurisdiction in admitting the amended complaint of Westin and issuing a restraining order against Progressive; in allowing private respondent to engage in forum shopping; and, taking cognizance of the action for damages despite lack of jurisdiction. CA dismissed the petition due to the failure of petitioner to file a MfR of Judge Santiago’s order, which it explained was a prerequisite to the institution of a petition for certiorari and prohibition. CA also found that the elements of litis pendencia were lacking to justify the dismissal of the action for damages with the RTC because despite the pendency of the forcible entry case with the MeTC the only damages recoverable thereat were those caused by the loss of the use and occupation of the property and not the kind of

damages being claimed before the RTC which had no direct relation to loss of material possession.

CA clarified that since the damages prayed for in the amended complaint with the RTC were those caused by the alleged high-handed manner with which petitioner reacquired possession of the leased premises and the sale of Westin’s movable found therein, the RTC and not the MeTC had jurisdiction over the action of damages.

Petitioner filed petition for review on certiorari under Rule 45 alleging that CA erred in finding that petitioner failed to avail of its plain, speedy and adequate remedy of a prior MfR with the RTC; ruling that the trial judge did not act with grave abuse of discretion in taking cognizance of the action for damages and injunction despite the pendency of the forcible entry case with the MeTC; and ruling that private respondent did not commit forum shopping since the causes of action before the RTC and MeTC were not identical with each other.

Held: Petition is with merit. While generally a MfR must first be filed before resorting to certiorari in order to give the lower court an opportunity to correct the errors imputed to it, this rule admits of exceptions and is not intended to be applied without considering the circumstances of the case.

The filing of the MfR before availing of the remedy of certiorari is not sine qua non when

5. the issue raised is one purely of law, or

6. where the error is patent or

7. the disputed order is void, or

8. questions raised on certiorari are the same as those already squarely presented to and passed upon the lower court.

The MtD the action for damages with the RTC on the ground that another action for forcible entry was pending at the MeTC between that same parties involving the same matter and cause of action.

Outrightly rejected by the RTC, the same issue was elevated by petitioner on certiorari before the CA.

Clearly, any MfR on the trial court would have been a pointless exercise.

The forcible entry and damages case arose from a single cause of action. Hence, the case for damages may be dismissed.

Petition is granted. CA decision and order of RTC reversed and set aside. RTC directed to dismiss the damages case. MeTC directed to proceed with forcible entry case.

Escolin: The SC was wrong.

Previous jurisprudence ruled that in cases filed with the MTC, a compulsory counterclaim in excess of the jurisdiction of the MTC should be filed as a separate action, or if filed in the same action, the excess is waived.

de Leon:

Under Rule 70, if a claim in an ejectment case in the MTC is for reasonable use of the property, the claim may go beyond the jurisdiction of the MTC.

But if the claim is other than reasonable use of the property, it must be within the jurisdiction of the MTC.

de Leon:

Counterclaims for moral and exemplary damages in ejectment cases before the MTC should be within the the amounts prescribed for summary procedure.


Facts: Administrator of estate-lessor files a case for ejectment before the City Courts against the lessee. Lessee files counterclaim in excess of the City Court’s jurisdiction. City Court decides for plaintiff. On appeal, CFI rules for defendant and grants him damages. This became final. Plaintiff files separate for nullifying the CFI decision on the ground that the

damages awarded was beyond the jurisdiction of the City Court.


Escolin: A compulsory counterclaim beyond the jurisdiction of the court can be filed as a separate action.

Maceda v. CA, 176 SCRA (1989)

Facts: Transferee of leased property files an ejectment case against the lessee.

Lessee sets up counterclaim for reimbursement of renovation expenses, in excess of the MTC’s jurisdiction.

MTC ejects lessee. RTC reinstates lessee and orders plaintiff to reimburse lessee. CA affirms RTC but deletes award of reimbursement.

Held: MTC had no jurisdiction over the excess counterclaim. Hence, neither did the RTC.

A counterclaim in excess of the limit may be pleaded only by way of defense to weaken the plaintiff's claim, but not to obtain affirmative relief.

Bayang v. CA, 148 SCRA 91 (1987)

Facts: Pending a quieting of title case, defendant dispossesses the plaintiff. CA rules in favor of plaintiff.

Plaintiff now files separate action for the fruits (income) during the period of dispossession.

Held: Ownership of the land and income from the land is a single cause of action in case of quieting of title. The claim for the income from the land was incidental to a claim for ownership of the land.

During the whole period of dispossession, plaintiff made no move to amend his complaint to include a claim for the income supposedly received by the defendant.

Failure to do so is res judicata to the subsequent case.

Famador: Compulsory counterclaims should be filed with the original case.

Permissive counterclaims may be filed in a separate case.

Escolin:

Plaintiff should have filed a supplementary complaint after the defendant has dispossessed him.

Juasing Hardware v. Mendoza, 115 SCRA 783 (1982)

FACTS Juasing Hardware, single proprietorship owned by Ong Bon Yong, filed a complaint for the collection of a sum of money against Pilar Dolla. The case proceeded to pre-trial and trial. After plaintiff presented its evidence and rested its case, defendant filed a Motion for Dismissal of Action (Demurrer to Evidence) praying that the action be dismissed for the plaintiff’s lack of capacity to sue. Defendant in said Motion contended that plaintiff Juasing is a single prop, not a corp or partnership duly registered in accordance with law and therefor is not a juridical person with legal capacity to bring an action in court. Juasing filed an Opposition and moved for the admission of an Amended Complaint. CFI Judge dismissed the case and denied admission of Amended Complaint.

HELD Correction of the designation of the plaintiff (from name of sole proprietorship to name of individual owner) is merely formal, not substantial, and hence may be corrected at any stage of the action.

Chang Kai Shek v. CA, 172 SCRA 389 (1989)

FACTS Fausta Oh was abruptly dismissed for no apparent or given reason from her teaching job in Chang Kai Shek School. Fausta sued and demanded separation pay, SSS benefits, salary differentials, maternity benefits, moral and exemplary damages. Chang Kai Shek filed MtD on the ground that it could not be sued. Complaint was amended. Certain school officials were also impleaded to make them solidarily liable with the school. CFI dismissed the complaint. On appeal, CA set aside CFI decision and held the school suable and liable while absolving the school officials. MfR was denied. The school then came to SC in a petition for review on certiorari.

HELD An unincorporated entity sued as such can not invoke its non-compliance with the law to escape being sued. It is now in estoppel. Petition denied. CA decision affirmed.

Hang Lung Bank v. Saulog, 201 SCRA 137 (1991)

FACTS Hang Lung Bank (HLB), foreign corp not doing business in the Phils, entered into 2 continuing guarantee agreements with Cordova Chin San (CCS) in HK whereby CCS agreed to pay on demand all sums of money which

may be due the bank from Worlder Enterprises (WE). WE having defaulted in its payment, HLB filed a collection suit against WE and CCS in the HK SC.

Thereafter, HLB sent a demand letter to CCS at his Phils address but again, no response was made thereto. Hence HLB instituted in the Makati RTC an action seeking enforcement of its just and valid

claims. CCS raised in his answer to the complaint the affirmative defenses of; lack of cause of action, incapacity to sue, and improper venue.

A day before pre-trial, CCS filed MtD on grounds that HLB had no legal capacity to sue and that venue is improper. RTC granted the MtD. HLB filed MfR but was denied. Hence the instant petition for certiorari seeking reversal of said orders.

HELD License as a requirement for a foreign corporation to sue applies only to foreign corporations doing business in the Philippines. “Isolated Transaction Rule” – unlicensed foreign corporation not doing business may sue on an isolated transaction. RTC orders set aside. Case reinstated and RTC is directed to proceed with the disposition of the case.

Commissioner of Customs v. KMK Gani, 182 SCRA 591 (1990)

Unlicensed foreign corporations not engaged in business may sue in the Philippines based on an isolated transaction. Fact of not doing business must be alleged in the suit.

Escolin: In Commissioner of Customs, KMK’s personality was not recognized because it was not able to prove that it was a duly formed corporation by presenting a certification from the government of its country of origin. Unlike in Hang Lung, the foreign corporation was able to prove its corporate existence under the foreign law.

de Leon: Even if a plaintiff foreign entity is not required to obtain a license because it is not doing business, it must still prove its due incorporation in its country of origin.

Merrill Lynch v. CA, 211 SCRA 824 (1992)

Facts: Unlicensed foreign corporation sues for recovery of money. They were doing business in the Philippines.

Held: The defendant is estopped to deny the capacity of the foreign corporation to sue, having dealt with the corporation.

My notes: defendant spouses Lara were allegedly aware that MLPI had NO LICENSE to act as broker… SC ordered the trial court to reinstate the case and to determine WON the Laras were indeed were aware, etc…

USA v. Reyes, 219 SCRA 192 (1993)

The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen.

The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity.

This situation usually arises where the public official acts without authority or in excess of the powers vested in him.

A public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.

Flores v. Mallare-Philips, 144 SCRA 377 (1986)

Facts: Plaintiff files 1 complaint against 2 distinct defendants before the RTC under distinct separate causes of action. Total amount of the claim is with RTC jurisdiction, but individual claim is under MTC jurisdiction. RTC dismisses the complaint .

Held: In cases of joinder of causes of action, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arose out of the same or different transactions.

In cases of permissive joinder of parties, whether as plaintiffs or as defendants, the total of all the claims shall now furnish the jurisdictional test.

However, there should be a proper joinder of parties for the totality rule to apply.

In this case, the 2 causes of action did not arise out of the same transaction or series of transactions and there was not common question of law or fact.

There was improper joining of parties, hence the totality rule does not apply. MTC has jurisdiction.

MY NOTES: In this case, the SC said…

In other words, in cases of permissive joinder of parties, whether as plaintiffs or as defendants, the total of all the claims shall now furnish the jurisdictional test. < under Section 6 of Rule 3 >

Needless to state also, if instead of joining or being joined in one complaint separate actions are filed by or against the parties, the amount demanded in each complaint shall furnish the jurisdictional test.

In the case at bar, the lower court correctly held that the jurisdictional test is subject to the rules on joinder of parties

(pursuant to Section 5 of Rule 2 and Section 6 of Rule 3 of the Rules of Court and)

that, after a careful scrutiny of the complaint, it appears that there is a misjoinder of parties f

or the reason that the claims against respondents Binongcal and Calion are separate and distinct and neither of which falls within its jurisdiction.

WHEREFORE, the order appealed from is affirmed, without pronouncement as to costs.

Ralla v. Ralla, 199 SCRA 495 (1991)

Facts: Validly disinherited son (Pedro) sues for annulment of sale of property from the decedent to another heir.

Held: The disinherited son has no legal standing to question the validity of the sale.

He is not a real party in interest as he does not stand to be benefited or injured by the judgment or a party entitled to the avails of the suit.

“Interest” means material interest.

MY NOTES: SC said…

The records show that they received a copy of the petition on February 26, 1991, but their memorandum was never filed. On May 29, 1991, the Court, noting this omission, finally resolved to dispense with the memorandum and to decide this case on the basis of the available records.

Our decision is that as a validly disinherited heir, and not claiming to be a creditor of his deceased father, Pedro Ralla had no legal personality to question the deed of sale dated November 29, 1957, between Rosendo Ralla and his son Pablo.

Legally speaking, Pedro Ralla was a stranger to the transaction as he did not stand to benefit from its annulment.

His disinheritance had rendered him hors de combat.

WHEREFORE, the decision of the respondent court dated January 23, 1987, is set aside and another judgment is hereby rendered dismissing Civil Case 194 (originally Civil Case 4624) in this Regional Trial Court of Ligao, Albay, Branch 5.

Mansion Biscuit v. CA, 250 SCRA 195 (1995)

FACTS Ty Teck Suan, as Pres of Edward Ty Brothers Corp (ETB Corp), ordered cartons of nutri-wafers from Mansion Biscuit Corp. B4 delivery of goods on nov81, Ty issued to Ang Cho Hong, pres of Mansion, 4 postdated checks. 4 other

PD checks were issued by Ty with Siy Gui as co-signor in dec81. Mansion delivered the good. First 4 PD checks were deposited but were dishonored due to ISF. Ang informed Ty of the dishonor and asked him to replace the checks with cash or good checks. Ang sent a formal demand letter. Thereafter, the second batch of checks were deposited but was also dishonored. Mansion then filed a crim case for violation of BP22 in Valenzuela RTC. Ty pleaded not guilty. Ang filed a verified motion for the issuance of a writ of attachment.

After prosecution rested its case, Ty filed a MtD by way of demurrer to evidence, which Siy adopted as his own. RTC granted the MtD stating that the stare decisis in these cases where the check is issued as part of an agreement to guarantee or secure payment of an obligation, whether pre-existing or not, the drawer

is not criminally liable for either Estafa or Violation of BP22. Both accused are found not guilty. Order of Attachment set aside. Prosecution then filed MfR and for clarification as to the civil aspect of the crim actions. MfR was denied.

Mansion filed certiorari and injunction with the CA questioning RTC’s setting aside of the order of attachment. CA annulled and set aside the portion of the order which set aside the Order of Attachment. Mansion filed another appeal with the CA assailing RTC’s ruling absolving defendants from civil liability.

While appeal was pending, Ty died. MtD the appeal was filed. CA denied MtD and granted the substitution of Ty’s children.

CA dismissed the appeal filed by Mansion for lack of merit. CA held that civil liab sought to be enforced by Mansion was not the personal liab of Ty but a contractual liab of ETB Corp. The civil liab of ETB Corp to Mansion was not litigated and resolved in the crim cases because ETB Corp was not a party thereto. CA held that a separate civil action should be instituted by Mansion against ETB Corp.

HELD Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. However, the claim for civil liability survives, if the same may also be predicated on a source of obligation other than delict. Where the civil liability survives, an action for recovery therefor may be pursued but only by way of filing a separate civil action against the executor/administrator or the estate of the accused, depending on the source of obligation. In cases where in the civil action is impliedly instituted with the criminal action, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case.

Nuñal v. CA, 221 SCRA 26 (1993)

Facts: Frank and Mary had children, one of whom was Mary Lyon Martin. They also owned a parcel of land. They died. Luisa Lyon Nuñal was in possession of the land. Emma Lyon de Leon in her behalf and as guardian ad litem of the minor heirs of Frank and Mary (but not including Mary Lyon Martin) sued Luisa Lyon, now deceased and herein represented by her heirs, for partition and accounting. CFI ordered the partition but dismissed the complaint for accounting. Affirmed by the CA, with a finding that Mary Lyon Martin was a child of Frank and Mary, but the order of partitioning did not include Mary Lyon Martin. Decision became final and writ of execution was issued.

Thereafter, Mary Lyon Martin filed a motion to quash the order of execution with preliminary injunction. Eventually, the lower court ordered the inclusion of Mary Lyon Martin in the partitioning as a co-owner, invoking the fact that the earlier decision had a finding that Mary Lyon Martin is one of the children of Frank and Mary. CA affirms.

Held: When a final judgment becomes executory, it thereby becomes immutable and unalterable. The judgment may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the

modification is attempted to be made by the Court rendering it or by the highest Court of land. The only recognized exceptions are the correction of clerical errors or the making of so-called nunc pro tunc entries which cause no prejudice to any party, and, of course, where the judgment is void. Any amendment. or alteration which substantially affects a final and executory judgment is null and void for lack of jurisdiction, including the entire proceedings held for that purpose.

In the case at bar, the decision of the trial court has become final and executory. Thus, upon its finality, the trial judge lost his jurisdiction over the case. Consequently, any modification that he would make, as in this case, the inclusion of Mary Lyon Martin would be in excess of his authority. The remedy of Mary Lyon Martin is to file an independent suit against the parties and all other heirs for her share in the subject property, in order that all the parties in interest can prove their respective claims.

Escolin: Once a judgment has been rendered, even if it is not yet final, intervention may no longer be allowed.(exception: if the intervenor is an indispensable party to the case). It is not necessary for the judgment of partition be final before the excluded heir may not be allowed to intervene. cf Rule 19, Sec. 2

Sec. 2. Time to intervene. - The motion to intervene may be filed at any time before rendition of judgment by the trial court. xxx

Robles v. CA, 83 SCRA 180 (1978)

Facts: Heirs sign power of attorney authorizing an heir to sell land inherited. One heir did not sign. The land was sold and registered. Excluded heir now sues the buyer and the RoD to “cancel” the buyer’s title. TC dismisses the case on ground that the vendors should have been impleaded as an indispensable party

Held: The action is not really one for cancellation of title, but really one questioning RoD’s acceptance of the PoA as a Declaration of heirship. The vendors are not indispensable parties. (Buyer is an indispensable party.) The action for cancellation pertains only to plaintiff’s rights as an excluded heir, and does not affect the rights and interests of the vendors. In reality, plaintiff’s action is one of legal

redemption where the vendors are clearly not indispensable parties. Besides, the defendant RoD had the option of impleading the vendors as 3rd party defendants if he wanted to.

Imson v. CA, 239 SCRA 58 (1994)

Facts: Plaintiff sues for damages from a vehicular accident. Beneficial owner and the driver were declared in default. Compromise was reached with the insurer and the claim against him was withdrawn. Registered owners now seek dismissal of the claims against them as well.

Held: The case should proceed. The rule is dismissal of the case against an indispensable party results in dismissal of the case against the other indispensable parties. The insurer is merely a necessary party. Dismissal of the case against him will not result to dismissal of the claim against the other defendants.

Escolin: The insurer is not an indispensable party to the case. The only indispensable party here is the driver of the truck. All the others are mere necessary parties.

Mina v. Pacson, 6 SCRA 775 (1963)

Facts: Plaintiffs Mina are the illegitimate children of Joaquin Mina. Joaquin executed a two deeds of absolute sale to Crispino Medina and Cresencia Mina (legitimate child). These deeds bear the conformity of Joaquin’s wife Antonia. Joaquin died in 1958. Plainitffs Mina sued Crispino and Cresencia for declaration of nullity of the deeds of sale and that defendants be required to deliver to plaintiffs ¼ of said

properties together with moral damages (1st case). The RTC directed plaintiffs to amend their complaint to include Antonia and other intestate heirs of Joaquin. Plaintiffs failed to comply, so 1st case was dismissed. Thereafter plainitffs Mina brought another action with the same pleading with an additional prayer for recognition as Joaquin’s illegitimate children (2nd case). Defendants filed a MTD on the ground of res judicata. The court thereby dismissed the 2nd case. Plaintiffs now contend that there is no res judicata because the 1st dismissal was void.

Held: To order an amendment to a complaint within a certain period in order to implead as party plaintiff or defendant one who is not a party to the case lies within the discretion of the Court. Where it appears that the person to be impleaded is an indispensable party, the party to whom such order is directed has no other choice but to comply with it. His refusal or failure to comply with the order is a ground for the dismissal of his complaint and is res judicata to a 2nd complaint.

Casenas v. Rosales, 19 SCRA 463 (1967)

Facts: Arañas and Caseñas filed a complaint for specific performance and enforcement of their alleged right under a certain deed of sale, and damages against the spouses Rosales. After answer has been filed and before trial, counsel for plaintiffs informed the trial court that plaintiff Arañas and defendant Rosales had both died. The lower court directed the surviving plaintiff, Caseñas, to amend the c

effect the necessary substitution of parties thereon. Caseñas failed to do this, so the TC dismissed the case. The dismissal became final. Thereafter, Caseñas filed another complaint against the widow Rosales and heirs of the late Rosales "to quiet, and for reconveyance of, title to real property, with damages." This suit referred itself to the very same property litigated in the previous dismissed case. and asserted exactly the same allegations as those made in the former complaint. Defendants filed MTD on ground of res judicata. TC dismissed the case.

Held: When certain of the parties died and due notice thereof was given to the trial court, it devolved on the said court to order, not the amendment of the complaint, but the appearance of the legal representatives of the deceased. An order to amend the complaint, before the proper substitution of parties has been effected, is void and imposes upon the plaintiff no duty to comply therewith to the end that an order dismissing the said complaint, for such non-compliance, would similarly be void.

Escolin: where the defendant dies pending the case, the duty of the court is to order the substitution of the defendant, not to order the amendment of the complaint to implead the heirs of the defendant

de Leon: In Mina, the court ordered the amendment of the complaint to implead an indispensable party. The order was proper, hence failure to comply was a valid ground for

dismissal of the complaint. In Casenas, the court ordered the amendment of the complaint to implead the heirs of a deceased party. The order was improper because the proper procedure was to substitute. Hence failure to comply was not a valid ground for dismissal of the complaint.

Escolin: Heirs of the decedent are indispensable parties in an action to for support by an illegitimate child of the decedent.

Vda dela Cruz v. CA, 88 SCRA 695 (1979)

Facts: Defendant in an ejectment case died before judgment could be rendered. TC acknowledged in its decision that the defendant had died. Decision became final and was executed. Heirs of the defendant now filed a motion to substitute the deceased and to set aside as null void the decisions, orders, writ of

execution and sale at public auction made and entered against the latter. TC allowed substitution, but denied setting aside of the decision and execution. CA reverses.

Held: In case of the death of a party and due notice is given to the trial court, it is the duty of the court to order the legal representative of the deceased to appear for him. In the case at bar, no legal representative was ever summoned appear in court. No legal representative appeared to be substituted. The plaintiffs did not procure the appointment of such legal representatives. As a result, the continuance of a proceeding

during the pendency of which a party thereto dies, without such having been validly substituted in accordance with the rules, amounts to lack of jurisdiction.

Escolin: It is the duty of the court to order substitution and such substitution is mandatory otherwise the court does not acquire jurisdiction.

de Leon: If the heirs ordered to substitute refuses to appear, they may not be held in contempt. The remedy is for the creditor to procure the appointment of an administrator for the estate and then substitute him for the decedent.

Vda. de Haberer v. CA, 104 SCRA 534 (1981)

Facts: TC dismisses 11 complaints for recovery of parcel of land. Plaintiff dies pending appeal. Counsel notifies the court of appellant’s death, and prayed for suspension of the period for filing an appellant’s brief pending appointment of an executor. CA denies extension and dismisses the appeal.

Held: The RoC requires appearance of the deceased legal representatives instead of dismissing the case. Dismissal of an appeal on the ground of failure to file appellant’s brief must be in accordance with the tenets of justice and fair play. The extension should have been granted.

Vda. de Salazar v. CA, 250 SCRA 305 (1995)

Formal substitution of heirs is not necessary when the heirs themselves voluntarily appeared, participated in the case and presented evidence in defense of deceased defendant.

Acar v. Rosal, 19 SCRA 625 (1967)

An applicant for leave to sue in forma pauperis, need not be a pauper; the fact that he is able-bodied and may earn the necessary money is no answer to his statement that he has not sufficient means to prosecute the action or to secure the costs. It suffices that plaintiff is indigent, though not a public charge. “Indigents” are persons who have no property or source of income sufficient for their support aside from their own labor, though self-supporting when able to work and in employment. It is in this sense of being indigent that "pauper" is taken when referring to suits in forma pauperis. In class suits, the nominal plaintiffs directly bear the cost of the suit. The proof of the indigence of the nominal parties is enough to support a petition to sue as pauper litigants. It need not be proved that every beneficiary of the class suit is indigent. The remedy in case of denial of a meritorious petition to sue as pauper litigants is mandamus. Appeal is unavailing because the plaintiffs were not even accorded the status of litigants.

Dacoycoy v. CA, 195 SCRA 641 (1991)

FACTS Jesus Dacoycoy filed before RTC of Antipolo, Rizal a complaint against private respondent Rufino de Guzman praying for annulment of 2 deeds of sale involving a parcel of riceland located in Lingayen, Pangasinan, the surrender of the produce, and damages. Before summons could be served on de Guzman, RTC judge ordered counsel for petitioner to confer with respondent trial judge on the matter of venue. After said conference, RTC dismissed the complaint due to improper venue. RTC found that petitioner’s action is a real action as it sought not only the annulment of the deeds of sale but also recovery of ownership of the riceland which was outside of the RTC’s territorial jurisdiction. Petitioner appealed to IAC which affirmed RTC’s order of dismissal.

Petitioner faults the IAC in affirming RTC finding that the venue was improperly laid when de Guzman has not even answered the complaint nor waived the venue.

HELD Petition granted. The court can not motu proprio dismiss the case on ground of improper venue. Objections to venue may be waived by the parties. Improper venue does not necessarily divest the court of jurisdiction over the subject matter of the controversy.

Even granting that the action of petitioner is a real action, respondent trial court would still have jurisdiction over the case, it being a RTC vested with the exclusive original jurisdiction over “all civil actions which involve the title to, or possession of, real property, or any interest therein.”

de Leon: This does not apply in summary procedure cases where the court may motu propio dismiss the complaint even on the ground of improper venue (SC Resolution 15 October 1991, Sec. 4).

Fortune Motors v. CA, 178 SCRA 564 (1989)

FACTS Metrobank extended various loans to Fortune which was secured by a real estate mortgage on the Fortune building and lot in Makati. For failure of Fortune to pay the loans, Metrobank initiated extrajudicial foreclosure proceedings. After notice were served, posted and published, the mortgaged property was sold at a public auction to Metrobank as the highest bidder.

3days after the expiration of the 1yr redemption period, Fortune filed a complaint for annulment of the extrajudicial foreclosure sale alleging that the foreclosure was premature because its obligation to Metrobank was not yet due, publication of the notice of sale was incomplete, there was no public auction, and the price for which the property was sold was “shockingly low”.

Before summons could be served, Metrobank filed a MtD the complaint on the ground that the venue of the action was improperly laid in Manila for the subject real property is situated in Makati, therefore the action to annul the foreclosure sale should be filed in Makati RTC.

MtD was opposed by Fortune alleging that its action “is a personal action” and that “the issue is the validity of the extrajudicial proceedings” so that it may have a new 1yr redemption period.

Manila RTC issued an order reserving the resolution of Metrobank’s MtD until after the trial on the merits as the grounds relied upon by the defendant were not clear and indubitable. Metrobank filed a MfR but was denied by Manila RTC. Metrobank appealed to CA. CA granted and dismissed the annulment case without prejudice to its being filed in the proper venue.

HELD An action to annul a real estate mortgage foreclosure sale is no different from an action to annul a private sale of real property. Both are actions that affect title and seek recovery of the real property sold. It is therefore a real action which should be commenced and tried in the province where the property or part thereof lies. Petition denied. CA decision affirmed.

Clavecilla Radio v. Antillon, 19 SCRA 379 (1967)

FACTS New Cagayan Grocery Bacolod Branch sent a message (REURTEL WASHED NOT AVAILABLE REFINED TWENTY FIFTY IF AGREEABLE SHALL SHIP LATER REPLY) to New Cagayan Grocery CDO Branch thru Clavecilla Radio Bacolod. Clavecilla Radio Cagayan received the message. However, in delivering the same to New Cagayan Grocery CDO, the word “NOT” between the word “WASHED” and “AVAILABLE” was omitted, thus changing entirely the contents and purport of the message and causing the addressee to suffer damages.

New Cagayan filed a complaint against Clavecilla in the MTC. After service of summons, Clavecilla filed MtD the complaint on the grounds that it states no cause of action and the venue is improperly laid. New Cagayan interposed opposition to which Clavecilla filed its rejoinder. Thereafter, MTC judge Antillon denied MtD for lack of merit.

Clavecilla filed a petition for prohibition and prelim injunction with the CFI praying that judge Antillon be enjoined from further proceeding with the case on the ground of improper venue. Respondents filed MtD the petition but was opposed by Clavecilla. CFI held that Clavecilla may be sued in Manila where it has its principal office or in CDO where it was served with summons thru the branch manager. In other word, CFI upheld the authority of MTC to take cognizance of the case.

In appealing, Clavecilla contends that the suit against it should be filed in Manila where it holds its principal office.

HELD The residence of the corporation is the place where its principal office is established. Branch offices are not “residences” where it may be sued. The phrase “where he (defendant) may be found” as to venue of actions applies only to non-residents. It does not apply to defendants residing in the Philippines.

Young Auto v. CA, 223 SCRA 670 (1993)

Facts: Young Auto (YASCO) sold its shares of stock in Consolidated Mktg & Dev’t Corp (CMDC) to Roxas. Purchase price 8M, dp 4M check bal 4M in pd checks 1M each. After execution of the agreement, Roxas took full control of the four markets of CMDC. However YASCO held on to stock certificates as security pending full payment. First 4M was honored but the four 1M checks were dishonored. Roxas sold one of the markets to a 3rd party. Out of the proceeds, YASCO rcvd 600k leaving a bal of 3.4M

YASCO filed a complaint against Roxas in Cebu RTC praying that Roxas be ordered to pay the bal or that full control of the 3 markets be turned over to YASCO. Roxas filed MtD, ground: improper venue. RTC dismissed MTD.

Roxas appealed to CA. CA ordered dismissal of the complaint on the ground of improper venue. YASCO appealed to SC.

The Articles of Incorporation of Young Auto Motors stated that its principal office was in Cebu. In its transactions with Roxas, Young Auto stated in its letterhead that its principal office was in Manila. Young Auto sued Roxas in Cebu based on such transactions. Roxas files MTD on the ground of improper venue.

Held: A corporation is a resident of the place where its principal office is located as stated in the articles of incorporation. Hence, Cebu was a valid venue for Young’s action.

Escolin: If it was Roxas who filed the case against Young in Pasay City based on the address in the letterhead, Young would be estopped from objecting on the ground of improper venue.

Hernandez v. DBP, 71 SCRA 290 (1976)

Facts: Hernandez resides in Batangas. He was awarded a lot in Quezon City by DBP. Subsequently, DBP refused to accept Hernandez’s payment and cancelled the award. Hernandez filed an action to annul the cancellation of the award in Batangas. DBP filed MTD on ground of improper venue.

Held: Hernandez's action is not a real but a personal action. His action is one to declare null and void the cancellation of the lot and house in his favor which does not involve title and ownership over said properties but seeks to compel respondent to recognize that the award is a valid and subsisting one which it cannot arbitrarily and unilaterally cancel and to accept payment. Such an action is a personal action which may be properly brought by petitioner in his residence.

Lizares v. Calauag, 4 SCRA 746 (1962)

FACTS: Flaviano Cacnio bought from Dr. Antonio Lizares on installment a parcel of land located in Sinkang Subd Bacolod City. Cacnio made a dp of Php1,206 bal Php10,858 to be paid in 10yearly installments.

Cacnio received a letter from Lizares demanding payment of arrears in installment payments, interests, and taxes. Cacnio sent a check to pay the amount due but Lizares returned the check and refused the tender of payment. Cacnio instituted a civil case in the Rizal CFI praying that Lizares be ordered “to accept the payment being made” by him.

Petitioner MtD the complaint due to improper venue for the action affects the title or possession of real property located in Bacolod. CFI denied MtD holding that it was a personal action. Petitioner appealed to the CA. CA denied petition.

HELD: An action praying that defendant be ordered "to accept the payment being made" by plaintiff for the lot which the latter contracted to buy on installment basis from the former, to pay plaintiff compensatory damages and attorney's fees and to enjoin defendant and his agents from repossessing the lot in question, is one that affects title to land, and "shall be commenced and tried in the province where the property or any part thereof lies," because, although the immediate remedy is to compel the defendant to accept the tender of payment allegedly made, it is obvious that this relief is merely the first step to establish plaintiff's title to real property.

Escolin: In the Bar exams of 1978, Wigberto Tañada was the Bar examiner. There was a question using the facts of Lizares. The consensus was the case should be filed in the place where the property was located. Tañada cited the Hernandez case in ruling that the case should be filed in the residence of the plaintiff. Eventually, both where considered correct.

de Leon: So where should we side now?

Esuerte v. CA, 193 SCRA 541 (1991)

For purposes of venue of personal actions, the venue is to be determined where the plaintiff or the defendant is actually located. It is actual residence, not legal domicile, which is relevant.

de Leon: The meaning of “residence” in determining venue of personal actions is the same as “residence” in determinng venue of estate proceedings.

Capati v. Ocampo, 113 SCRA 794 (1982)

Stipulation as to venue which uses the word “may” is permissive and does not limit the venue of the action only to the venue stipulated.

Unimasters v. CA, 267 SCRA (1997)

Stipulation as to venue which uses the word “shall” is permissive and does not limit the venue of the action only to the venue stipulated.

Escolin: They should have used the words “solely,” “exclusively,” or “only.” “Shall” is not enough to confer exclusive venue with a court.

Diaz v. Adiong, 219 SCRA 631 (1993)

Filing of answer waives MTD on ground of improper venue.

Escolin: the rules now allow raising the issue of improper venue as an affirmative defense in the answer even if there was failure to raise it in a motion to dismiss (Rule 16, Sec. 6).

Sweetlines v. Teves, 83 SCRA 361 (1978)

Facts: Boat tickets stipulated that the venue of actions arising out of the tickets should be filed in Cebu City.

Held: Although venue may be changed or transferred by agreement of the parties in writing, such an agreement will not be held valid where it practically negates the action of the claimants. Considering the expense and trouble a passenger residing outside of Cebu City would incur to prosecute a claim in the Cebu City, he would most probably decide not to file the action at all. The condition will thus defeat, instead of enhance, the ends of justice. On the other hand, Sweetlines has branches or offices in the respective ports of call of its vessels and can afford to litigate in any of these places. Hence, the filing of the suit in residence of plaintiff, as was done in the instant case, will not cause inconvience to, much less prejudice Sweetlines. The stipulation, if enforced, will be subversive of the public good or interest, since it will frustrate in meritorious cases, actions of passenger claimants outside of Cebu City, thus

placing Sweetlines company at a decided advantage over said persons, who may have perfectly legitimate claims against it. The said condition should, therefore, be declared void and unenforceable, as contrary to public policy

Escolin: The SC characterized a contract of adhesion as void for being against public policy.

de Leon: Contrast the rationale in the cases of Sweetlines and Clavecilla re: “confusion” and “untold inconvenience” on the part of defendants.

a.

Combate v. San Jose, 135 SCRA (1985)

Facts: Combate was charged with theft of a rooster before the MTC. He pleaded not guilty without aid of counsel. Without trial, judgment was rendered based on the affidavits and counter-affidavits presented.

Held: Summary procedure is applicable for offenses punishable by not more than 6 months. Theft is punishable up to 2 years and 4 months. Summary procedure is inapplicable. Even if applicable, summary procedure does not dispense with trial in criminal cases. All it allows is affidavits to be considered as direct testimony, but subject to cross-examination. Otherwise, this would violate the right of the accused to due process (de Leon: and his right to confront witnesses against him).

de Leon: contrast this case with the prevailent practice of courts, even in cases not covered by the rules on summary procedure, to substitute direct examination with affidavits of the witnesses, subject to cross-examination.

Bayubay v. CA, 224 SCRA 557 (1993)

Facts: Bayubay files an ejectment case against Big Mak Burger. Pre-trial was terminated, but the court ordered only the submission of position papers. 3 months later, the court ruled that Big Mak should be ejected.

Held: The rules on summary procedure require that immediately after the preliminary conference, an order should be issued distinctly setting forth the issues of the case and other matters taken up during the preliminary conference. This is important because only after receipt of the order does the 10 day period to submit affidavits and other evidence begin to run.

Failure of the MTC to issue such order means the 10 day period never began to run. It could not therefore have decided the case then. Furthermore, this was not a pure question of law as the defendant claimed reimbursement for expenses and damages.

(1968)

Counterclaims that are beyond the jurisdiction of the MTC are not compulsory and are not waived by the failure to set up before the MTC. The rules allow such counterclaims to be set-up only for the defendant to prevent plaintiff from recovering from him. This means that should the court find both plaintiff's complaint and

defendant's counterclaim (for an amount exceeding said court's jurisdiction) meritorious, it will simply dismiss the complaint on the ground that defendant has a bigger credit. However, any counterclaim set-up in excess of the court’s jurisdiction is waived. Failure of the defendant to set-up such claim does not bar him from filing a separate civil action on the same claim before the RTC.

de Leon: compare this with the Progressive Development Corp. v. CA, 301 SCRA 637 (1999) which Escolin said was wrong.

Singapore Airlines v. CA, 243 SCRA (1995)

Facts: Rayos was an employee of Aramco. Aramco reimburses the amounts its employees pay for excess baggage. Rayos validly claimed reimbursement. Aramco investigates Rayo for fraudulent claims. Rayo asked Singapore Airlines to issue a certification. Singapore delays in issuing the certification. Rayo’s contract with Aramco was not renewed. Rayo sues Singapore. Singapore blames PAL and files a 3rd party complaint against PAL. PAL answers that the tampering was Singapore’s fault. Judge

rules for Rayo on the main case, and for Singapore in the 3rd party complaint. Judgment for Rayo became final. PAL appeals the 3rd party complaint claiming for the 1st time that Rayo was not entitled to damages from Singapore because his contract with Aramco was not renewed because of his unsatisfactory performance.

Held: Judgment for Rayo being final, PAL may not question it. A 3rd-party defendant is allowed to set up in his answer the defenses which the 3rd-party plaintiff (original defendant) has or may have against the original plaintiff's claim. However, he must do so in his 3rd party answer, and not raise it for the 1st time on appeal. PAL should have raised in its 3rd party answer everything that it may conceivably interpose by way of its defense, including specific denials of allegations in the main complaint which implicated it along with Singapore.

b. Cases

Chavez v. Sandiganbayan, 193 SCRA 282 (1991)

A claim for damages based on malice and evident bad faith of a litigant’s counsel in filing a case is not a compulsory counterclaim in the case filed against him. It must be filed as a separate and distinct civil action for damages against such counsel. When a lawyer acts in the name of a client, he should not be sued in a counterclaim in the very same case he has filed only as counsel and not as a party. A counterclaim is possible only against a party to the action.

Bulacan v. Torcino, 134 SCRA 252 (1985)

Facts: Complaint for forcible entry was signed by a non-lawyer friend of the plaintiff. Judgment for plaintiff. Defendant appeals before the RTC and moves to dismiss the case on the ground that the complaint was not signed by the plaintiff or by an attorney.

Held: The complaint is valid as non-lawyer friends may assist litigants before the MTC. However, in cases before the RTC, the litigant must be aided by a member of the bar.

Estoesta v. CA, 191 SCRA 303 (1990)

Facts: Accused files motion to withdraw petition for review of an RTC judgment modifying an MTC conviction for slight physical injuries, in order to apply for probation. Probation was denied. Accused now moves to reconsider the withdrawal and to reinstate the petition for review because its withdrawal was filed without advice of counsel.

Held: A party can always conduct litigation personally. If in the process his cause suffers reverses, he only has himself to blame.

Cortez v. CA, 83 SCRA 31 (1978)

Until counsel of record formally withdraws, court processes may be validly served upon him, even if his services have in fact been terminated. Service to him, is service to his client, even if he returns the document served on him to the court.

Requirements for Substitution of Counsel during proceeding

.1 written consent of party

.2 written consent of attorney to be substituted

.3 approval of court

Jureidini v. CA, 83 SCRA 90 (1978)

Lawyers' rights to fees from their clients cannot have a standing higher than the rights of the clients or parties themselves and may not be invoked by the lawyers themselves as a ground

for disapproving or otherwise holding in abeyance the approval of the compromise agreement, since said rights can be enforced in the proper court in an appropriate proceeding. A petition for intervention cannot prevent the approval of a compromise agreement entered into by and between the parties litigants and the same will be denied where the claim of the intervenor can be properly ventiliated before the proper court in a separate proceeding.

Escolin: In criminal cases, the accused has a constitutional right to counsel. Hence if his defense was handled by a fake attorney which resulted in to a conviction, the case should be remanded. The same is true when it comes to civil cases (Telan v. CA, 1991)

Sto. Tomas University v. Surla, 294 SCRA 382 (1998) *

A party need not execute a certification of non-forum shopping on a compulsory counterclaim. Only a permissive counterclaim must contain such certification.

Kavinta v. Castillo, Jr., 249 SCRA 604 (1995)

Mere submission of a certification of non-forum shopping after the filing of a motion to dismiss on the ground of such failure does not operate as a substantial compliance and does not cure the defect. The case may still be dismissed.

International Container Terminal v. CA, 249 SCRA 389 (1995)

For forum shopping to exist, both actions must involve the same transactions, same essential facts and circumstances. The actions must also raise identical causes of action, subject matter, and issues. There is forum shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another.

Ortiz v. CA, 299 SCRA (1998) *

Facts: Petition for review from the judgment of the RTC was filed with the CA. Certificate against forum-shopping was signed by counsel, not by the party.

Held: A petition for review, for certiorari, for mandamus, and even appeal requires a certificate against forum-shopping. It must be the party himself who must certify. If only counsel certifies, the case should be dismissed, unless there is a statement of a reasonable and sufficient cause why the party could not sign the certification.

de Leon: A perusal of the rules on appeal reveal that ordinary appeals does not require a certificate against forum shopping while petitions for review, petition for review on certiorari, and special civil action for certiorari does require a certificate against forum-shopping.

c. Cases

The rule requiring denial under oath does not apply where the litigant signed the instrument

merely as a witness, not as a party (Donato v. CA, 217 SCRA 196 [1993]).

Toribio v. Bidin, 134 SCRA 162 (1985)

The requirement of denial under oath applies also to defenses based on a document attached to an answer. The offeror need not be a party to the instrument in order to require a denial under oath, as long as the adverse party is a party to the instrument. Allegation in a previous sworn pleading negating the possibility of execution of the instrument subsequently offered by the oppenent is sufficient denial under oath of such instrument.

Escolin: Objection to evidence barred by the rule requiring denial under oath must be upon calling the witness, even before the question is put forth.

Bough and Bough v. Cantiveros, 40 Phil 209 (1919)

Failure of a party to deny under oath the genuineness of an actionable document does not bar him from proving fraud, mistake, or other defenses that do not deny the genuineness and due execution of the instrument.

Hibberd v. Rohde, 32 Phil 476 (1915)

Failure to deny under oath the genuineness and due execution of an actionable document bars only evidence to controvert its due execution. Execution can only refer to the actual making and delivery, but it cannot involve other matters without enlarging its meaning beyond reason. The party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that at the time it was signed it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him (memorize!). It does not bar evidence of other defenses like want or illegal consideration.

Defenses that are barred by failure to deny under oath a document upon which an action or defense is based

.1 signature is a forgery

.2 the signature was by an unauthorized agent or partner

.3 the corporation was not authorized under its charter to sign the instrument

.4 the party charged signed the instrument in some other capacity than that alleged in the pleading setting it out

.5 the instrument was never delivered

Jabalde v. PNB, 7 SCRA 791 (1963)

Presentation of evidence as to facts admitted by the failure to deny under oath, and failure to object when the opposing party offers evidence to controvert what he has already deemed to have admitted, amounts to a waiver of the admission.

Escolin: Counsel for Jabalde should have objected on the ground that the fact that the evidence sought to prove had already been admitted.

de Leon: If counsel did object, I submit that the offeror’s mere presentation of supporting evidence was enough waiver of the technical admission. cf Rule 10, Sec. 5

Sec. 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a)

Presentation of evidence by the offeror of the actionable document treats the issue of authenticity and due execution of the actionable document as having been raised in the pleadings (i.e. as if there had been a specific denial under oath).

Central Surety v. CN Hodges, 38 SCRA 159 (1971)

Failure of the plaintiff to object to evidence constitutes a waiver of admission from failure to deny under oath.

Capitol Motors v. Yabut, 32 SCRA 1 (1970) *

The rule that deems as a denial an allegation of “lack of knowledge sufficient to form a belief as to the truth of an allegation of the adverse party” does not apply where the fact as to which the lack of knowledge is asserted is plainly within the defendant’s knowledge and his averment of ignorance must be palpably untrue (e.g. whether or not he executed a PN). The allegation of lack of knowledge must be in good faith and in sincerity. Mere allegation of ignorance is insufficient to raise an issue. Defendant must aver positively how it is that the is ignorant of the facts so alleged.

de Leon: This in effect ruled that in order to effectively deny an actionable document, there must be a specific denial, and not just an allegation of lack of knowledge. Lack of knowledge as a denial is ineffective against actionable documents because the adverse party is always a party to the instrument being offered. Being a party to the instrument, it is always “plainly within his knowledge” whether the instrument offered is authentic or duly executed. Hence, to deny an actionable document, the denial must always be specific, and not just a mere allegation of lack of knowledge.

Ferrer v. Ericta, 84 SCRA 705 (1978)

Facts: Dennis Pfleider, then 16 years old, drove a pick-up of his parents. He met an accident which resulted in injuries to Annette Ferrer in 31 December 1970. Ferrer parents sued in 6 January 1975. Actions for damages arising from physical injuries because of a tort must be filed within 4 years. Defendants’ answer did not raise the defense of prescription. They did not appear at the pre-trial and was declared in default.

Held: Defense of prescription, even if not raised in a motion to dismiss or in the answer, is not waived unless such defense raises issues of fact not appearing upon the preceding pleading. The general rule that the defense of prescription can only be considered if invoked in the answer does not obtain when the evidence shows that the cause of action upon which plaintiff’s complaint is based is already barred by the statute of limitations. Moreso if the plaintiff’s own allegation in the complaint or the evidence it presented shows clearly that the action had prescribed.

(Pacson v. Lorenzo) *

Facts: Plaintiff sues for reconveyance of land. Defendant filed MTD on the ground of prescription. Court denies the MTD on the ground that prescription was not indubitable. Defendant does not file an answer and was declared in default. Plaintiff’s evidence shows that the action had already prescribed. Plaintiff’s action was dismissed on the ground of prescription. Plaintiff appeal on the ground that prescription as a ground to dismiss was waived by failure to file an answer.

Held: The dismissal was proper.

Garcia v. Mathis, 100 SCRA 251 (1980)

Facts: Colonel Mathis dismissed Garcia from his employment at the Clark Air Force Base on the ground of bribery and collusion on 23 August 1956. Garcia sues on 18 November 1977, or after a lapse of more than 21 years Defendant enters a special appearance and files an MTD on the ground that no jurisdiction was acquired over his person because he was sued as a representative of a foreign sovereign not consenting to be sued. TC dismissed on the ground of prescription though this was not raised by the defendant.

Held: The general rule is an action can not be held as prescribed if this was not raised in a motion to dismiss. An exception is when plaintiff’s own allegations in his complaint show that the action has prescribed. A MTD on this ground is not necessary. Furthermore, because of the special appearance which the defendant had entered, he was constrained to confine himself to showing that the trial court did not have jurisdiction over his person and had to exclude all other non-jurisdictional grounds in his MTD, otherwise he would have been deemed to have abandoned his special appearance and voluntarily submitted himself to the jurisdiction of the court.

de Leon: cf Rule 14, Sec. 20.

Sec. 20. Voluntary appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)

This is a reiteration of La Naval case. Assertion by the defendant of an affirmative relief in the MTD or filing of an answer is a voluntary appearance before the court.

Gabuya v. Layug, 250 SCRA 218 (1995)

Facts: Gabuya sold land to Layug. Layug defaulted on the final installment. Gabuya sues Layug for annulment of contract with damages in Lanao Del Norte CFI (now RTC). Gabuya obtains a final and executory judgment in his favor. Thereafter, Layug files a complaint for reimbursement of the value of the improvements buildings and materials introduced on the lands. MTD by Gabuya was denied.

Held: The claim for reimbursement should have been raised as a counterclaim in the previous case. Failure to do so precludes the re-litigation of the same facts in a separate complaint. The claim for such improvements and indemnity is necessarily connected with the suit for the restitution or recovery of land.

cf Rule 9 Sec. 2

Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. — A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)

Calo v. Ajax, 22 SCRA 996 (1968)

Counterclaims that are beyond the jurisdiction of the MTC are not compulsory and are not waived by the failure to set up before the MTC. The rules allow such counterclaims to be set-up only for the defendant to prevent plaintiff from recovering from him. This means that should the court find both plaintiff's complaint and defendant's counterclaim (for an amount exceeding said court's jurisdiction) meritorious, it will simply dismiss the complaint on the ground that defendant has a bigger credit. However, any counterclaim set-up in excess of the court’s jurisdiction is waived. Failure of the defendant to set-up such claim does not bar him from filing a separate civil action on the same claim before the RTC.

Cavili v. Florendo, 154 SCRA 610 (1987)

FACTS Private respondents Clarita, Ulpiano, Estrella, & Placida (all surnamed Cavili) filed a civil case against herein petitioners Perfecta, Primitivo, and Quirino (all surnamed Cavili) with the NegOcc CFI for Partition, Accounting, and Damages. Petitioners failed to file their Answer within the

requested period. Upon motion of the private respondents, the petitioners were declared in default.

Counsel for petitioner received a copy of the decision and filed a motion for new trial on the grounds of lack of jurisdiction over Primitivo and

Quirino who had not been legally served with summons. Motion for new trial was granted in an Order in 23April.

Private respondents filed MfR of the order granting new trial and prayed that a writ of execution be issued but only in so far as Perfecta is concerned.

On 21July CFI set aside the order granting new trial and directed the execution. Petitioners MfR which was denied. Thus petitioner brought the case to the SC. SC granted petition, setting aside the 21July Order and reviving the 23April Order.

Thereafter, the pre-trial and trial was scheduled before RTC. Petitioners presented Perfecta as their first witness. The respondents moved for her disqualification as a witness on the ground that having been declared in default, Perfecta has lost her standing in court and she cannot be allowed to participate in all

proceedings therein, even as witness. Respondent judge Florendo sustained the respondents’ contention and disqualified Perfecta from testifying. Petitioners filed MfR which was denied.

HELD Parties in default are not disqualified from testifying in favor of non-defaulting co-defendants.

Pacete v. Carriaga, 231 SCRA 321 (1994)

FACTS Concepcion Alanis filed with Cotabato CFI a complaint for the declaration of nullity of the marriage between her husband Enrico.

HELD There can be no defaults in actions for annulment of marriage or for legal separation. The court should instead order the prosecutor to investigate whether or not collusion between the parties exists, and to intervene for the State to see to it that the evidence submitted is not fabricated.

Escolin: Actions for nulliy or annulment of marriage, and legal separation need not pass thru the Katarunggang Pambaranggay because the law does not authorize settlement of such cases.

Ramnani v. CA, 221 SCRA (1993)

The remedies available to a defendant who has been declared in default are: a) before judgment – file a motion, under oath, to set aside the order of default on the ground that his failure to answer was due to FAME, and that he has a meritorious defense; b) after judgment, but before it has become final and executory – file a motion for new trial; c) after judgment has become final and executory – file a petition for relief (60days to file petition for relief); d) He may also appeal (certiorari – 60days to file) from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him. A motion to lift order of default requires a showing of meritorious defense and FAME. A meritorious defense must concur with the satisfactory reason for the non-appearance of the defaulted party.

Cuyugan v. Dizon, 79 Phil 80 (1947)

Facts: Cuyugan enters into a lease with Dizon. Dizon defaulted on his rentals, hence Cuyugan sued in Pampanga CFI. Cuyugan was married, but her husband did not join her as plaintiff. SC rules in favor of Cuyugan.

Held: The fact that plaintiff’s husband was not joined as plaintiff does not merit dismissal nor remand of the case. The complaint may be amended to cure the defect even after a final decision has been rendered. Furthermore, there is no indication that plaintiff’s husband is hostile to his wife’s demand, or claims any interest adverse to hers, or that defendant has any evidence to present with reference to the husband. Plaintiff has 10 days from notice to file an amended complaint making her husband party plaintiff. After the amended complaint is filed, let judgment be entered.

cf Rule 3 Sec. 4

Sec. 4. Spouses as parties. — Husband and wife shall sue or be sued jointly, except as provided by law. (4a)

Gulang v. Nadayag, 214 SCRA 355 (1992)

FACTS Nadayag filed with Iligan CFI a complaint against Gulang. The Nadayags are co-owners of a parcel of land located in the port area. Gulang is also an owner of a parcel of land located in the port area. Before Gulang acquired the lot, she rented a portion of the same from Lasmarias. Lasmarias purchased from Nadayag’s predecessor-in-interest a parcel of land adjacent to the lot of the Nadayags. Nadayags complained against Gulang’s occupancy in their lot, the rentals of which Gulang paid to Lasmarias instead of Nadayag. Nadayags pray that Gulang be ordered to vacate and restore possession and/or ownership to them and that defendants be ordered to pay back rentals, moral and exemplary damages, and atty’s fees.

In their answer, defendants deny the claim of plaintiffs and by way of affirmative and special defenses alleged that the defendants are the true, legal and lawful owner and in actual

possession and occupation of the land in question.

A survey by the Bureau of Lands was conducted and in conclusion stated that Gulang is occupying a portion of Nadayag’s land. But defendants counsel made an open court manifestation that his clients will not abide with the survey results.

Lasmarias filed a motion to admit his amended answer in which defenses of want of cause of action, prescription, estoppel, laches and fraud were introduced. Gulang filed a similar motion introducing the same defenses. Both motions were denied. MfR was also denied.

CFI ruled that Gulang encroached on Nadayag’s land. Gulang appealed to the IAC. IAC held that CFI correctly denied the motion to amend the answer considering that it was filed after the case had been set

for hearing and that it substantially altered his defense by adding grounds of prescription, estoppel, laches and fraud.

HELD Though substantial amendments may be made even after the case has been set for

hearing provided prior leave of court is obtained, such leave may be refused if the motion requesting for the same would delay the action or the cause of action or defenses would be substantially altered by the proposed amendment (e.g. raises issues of want of cause of action, prescription, estoppel, laches and fraud)

Gojo v. Goyala, 35 SCRA 557 (1970)

FACTS Segundo Goyala together with his wife Antonina sold to Faustino Gojo by a “Deed of Pacto de Retro Sale” a parcel of agri land, repurchase to be made within one year. About 10yrs after execution of said document, Gojo filed with the Sorsogon CFI a petition for consolidation of ownership of the land.

Goyala filed an opposition to the petition alleging that it was a mere mortgage and not a Pacto de Retro sale as evidenced by a deed of mortgage executed by the Goyalas.

Goyala also alleged that he and Antonina went to Gojo’s house and tendered to him the payment of the debt, but Gojo refused to receive the same and to cancel the document of mortgage. Goyala also prayed that Gojo be ordered to pay Php1800 per annun (less the legl annual interest of the loan) as the reasonable monetary value of the products of the said land.

Goyala’s counsel filed a manifestation informing the trial court the Antonina was already dead. Hearing was had on that manifestation and the trial court ordered Gojo’s counsel to submit an amemded complaint substituting Antonina with her successors-in-interest.

Goyala filed MtD the complaint on the ground of failure to submit amended complaint. TC dismissed complaint without prejudice. Thereafter, Goyala filed a motion to declare Gojo in default for failure to answer the counterclaim. TC declared Gojo in default.

Gojo appeals to CA. CA certified the appeal to SC upon finding that the appeal involves purely questions of law.

HELD A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of the complaint.

Ballecer v. Bernardo, 18 SCRA 291 (1966)

FACTS Petitioner spouses Jose Agawin and Felicisima Ballecer instituted a civil case against Jose Bernardo to recover damages allegedly caused by him in consequence of the destruction and demolition of a portion of a wall of petitioners along the common boundary line of their lot and that of Bernardo, as well as recovery of possession of a portion of petitioners’ lot which was allegedly encroached upon by the wall subsequently erected by Bernardo.

Bernardo filed his answer denying petitioners’ averments, and alleging that the demolition

made by him took place within the boundary of his own property. By way of counterclaim, Bernardo claimed that petitioners were the ones who encroached and that petitioners’ complaint is premature, uncalled for, capricious and without any justifiable cause, for which Bernardo prayed that petitioners be sentenced to vacate his portion of land and to pay damages.

On the last day of the reglementary period to answer counterclaim, petitioners filed an ex-parte urgent motion for extension of time, but the motion was denied and stricken off the record. Petitioners were declared in default as to counterclaim. Bernardo presented his evidence the Manila CFI ruled in favor of him.

Petitioners MfR but was denied. Petitioners filed a petitioner for relief from judgment which was granted only to be denied by the CFI on MfR by Bernardo.

Petitioner filed their notice of appeal. Petitioners sought an extension of time to file their appeal bond and their record on appeal but was denied for lack of merit.

The court ordered the issuance of the writ of execution but said writ was ordered stayed pending trial on the merits on petitioners’ complaint.

On motion of Bernardo, said order was set aside and the issuance of a writ of execution was ordered. Petitioner MfR but was denied. Clerk of Court issued an alias writ of execution and Sheriff of Manila caused to be published a notice of sale at public auction of petitioners’ property.

ISSUE WON CFI erred in declaring petitioners in default.

HELD YES. Where the allegations in the counterclaim (not necessarily compulsory) have already been controvert ed by the original complaint, failure of the the defendant in the counterclaim to file an answer to the counterclaim is not sufficient to declare him in default.

Calo v. Ajax, 22 SCRA 996 (1968)

Counterclaims that are beyond the jurisdiction of the MTC are not compulsory and are not waived

by the failure to set up before the MTC. The rules allow such counterclaims to be set-up only for the defendant to prevent plaintiff from recovering from him. This means that should the court find both plaintiff's complaint and defendant's counterclaim (for an amount exceeding said court's jurisdiction) meritorious, it will simply dismiss the complaint on the ground that defendant has a bigger credit. However, any counterclaim set-up in excess of the court’s jurisdiction is waived. Failure of the defendant to set-up such claim does not bar him from filing a separate civil action on the same claim before the RTC.


Facts: Administrator of estate-lessor files a case for ejectment before the City Courts against the lessee. Lessee files counterclaim in excess of the City Court’s jurisdiction. City Court decides for plaintiff. On appeal, CFI rules for defendant and grants him damages. This became final. Plaintiff files separate action for nullifying the CFI decision on the ground that the damages

awarded was beyond the jurisdiction of the City Court.


Escolin: A compulsory counterclaim beyond the jurisdiction of the court can be filed as a separate action. If filed in the same action, the excess is deemed waived.

B. Bill of Particulars

1. Rule 12

Section 1. When applied for; purpose. — Before responding to a pleading, a party may move for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. (1a)

Bill of particulars – definite statement of any matter which is not averred with sufficient definiteness or particularity to enable the adverse party properly to prepare his responsive pleading.

Sec. 2. Action by the court. — Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard. (n)

Sec. 3. Compliance with order. — If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (n)

Sec. 4. Effect of non-compliance. — If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (1[c]a)

Sec. 5. Stay of period to file responsive pleading. — After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (1[b]a)

Sec. 6. Bill a part of pleading. — A bill of particulars becomes part of the pleading for which it is intended. (1[a]a)

A Bill of Particulars is not a pleading because it prays for relief not included in the judgment.

Procedure in bill of particulars

.1 application by an adverse party before responding to a pleading, or within 10 days from service of the reply

.2 clerk of court brings it to the attention of the court

.3 (no hearing necessary) the court either

.a deny it outright

.b grant it outright

.c allow the parties the opportunity to be heard

.4 If the motion is granted, the compliance therewith must be effected within 10 days from notice of the order, unless a different period is fixed by the court.

.5 The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party

.6 After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event.

.7 If the order is not obeyed, or in case of insufficient compliance, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just.

.8 A bill of particulars becomes part of the pleading for which it is intended.

2. Cases

Salita v. Magtolis, 233 SCRA 100 (1994)

Facts: Espinosa sues his wife Salita for declaration of nullity on ground of psychological incapacity. Salita moves for bill of particulars. Granted. Espinosa complies by specifying that

. . . at the time of their marriage, respondent (Joselita Salita) was psychologically incapacitated to comply with the essential marital obligations of their marriage in that she was unable to understand and accept the demands made by his profession — that of a newly qualified Doctor of Medicine — upon petitioner's time and efforts so that she frequently complained of his lack of attention to her even to her mother, whose intervention caused petitioner to lose his job.

Salita was not content, but TC upholds its sufficiency and directed Joselita to file her responsive pleading.

Held: A complaint only needs to state the ultimate facts constituting the plaintiff's cause or causes of action. Ultimate facts has been defined as those facts which the expected evidence will support. The term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established. It refers to the facts which the evidence on the trial will prove, and not the evidence which will be required to prove the existence of those facts. A motion for bill of particulars will not be granted if the complaint, while not very definite, nonetheless already states a sufficient cause of action. A motion for bill of particulars may not call for matters which should form part of the proof of the complaint upon trial. Such information may be obtained by other means. The Bill of Particulars filed by private respondent is sufficient to state a cause of action, and to require more details from private respondent would be to ask for information on evidentiary matters. On the basis of the aforequoted allegations, it is evident that petitioner can already prepare her responsive pleading or for trial.

Agcanas v. Mercado, 7 SCRA 688 (1963)

Facts: Agcanas sues Mercado for recovery of parcels of land and damages. Mercado moves for a bill of particulars. Pending the motion, he also moves to dismiss with a prayer that consideration of the motion for a bill of particulars be held in abeyance pending resolution of the MTD. TC denied MTD and ordered Mercado to answer the complaint. Mercado did not, hence was declared in default. Mercado’s attempts to set aside the order of default were futile.

Held: Both a motion to dismiss and a motion for a bill of particulars interrupt the time to file a responsive pleading. In the case of a motion to dismiss, the period starts running again as soon as the movant receives a copy of the order of denial. In the case of a motion for a bill of particulars, the suspended period shall continue to run upon service on the movant of the bill of particulars, if the motion is granted, or of the notice of its denial, but in any event he shall have not less than five days within which to file his responsive pleading. When Mercado’s MTD was denied, the period to file an answer remained suspended until the motion for a bill of particulars is denied or, it is granted, until the bill is served on the moving party. No action having been taken on the motion for bill of particulars until the present, the period to answer has not yet expired. The TC, therefore, erred in declaring Mercado in default.

Santos v. Liwag, 101 SCRA 327 (1980)

Facts: Santos files a complaint against Liwag seeking the annulment of certain documents as having been executed by means of misrepresentations, machination, false pretenses, threats, and other fraudulent means, as well as for damages. Liwag moved for a bill of particulars. BoP was granted. Santos fails to comply, hence his complaint was dismissed.

Held: We find no merit in the appeal. The complaint is without doubt imperfectly drawn and suffers from vagueness and generalization to enable the defendant property to prepare a responsive pleading and to clarify issues and aid the court in an orderly and expeditious disposition of the case. The present action is

one for the annulment of documents which have been allegedly executed by reason of deceit, machination, false pretenses, misrepresentation, threats, and other fraudulent means. Deceit, machination, false pretenses, misrepresentation, and threats, however, are largely conclusions of law and mere allegations thereof without a statement of the facts to which such terms have reference are not sufficient. The allegations must state the facts and circumstances from which the fraud, deceit, machination, false pretenses, misrepresentation, and threats may be inferred as a conclusion. In his complaint, the appellant merely averred that all the documents sought to be annulled were all executed through the use of deceits, machination, false pretenses, misrepresentation, threats, and other fraudulent means without the particular facts on which alleged fraud, deceit, machination, or misrepresentations are predicated. Hence, it was proper for the trial court to grant the defendant's motion for a bill of particulars, and when the plaintiff failed to comply with the order, the trial court correctly dismissed the complaint.

cf Rule 8, Sec. 5

Sec. 5. Fraud, mistake, condition of the mind. — In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (5a)

de Leon: Was this dismissal for failure to file a bill of particulars with or without prejudice? I think it is with prejudice because it should be in the nature of a dismissal based on failure to prosecute.

Benguet Electric v. NLRC, 209 SCRA 55 (1992)

FACTS Peter Cosalan was the GenMgr of Benguet Electric Coop (BENECO). Cosalan received Audit Memo#1 issued by the COA. The memo noted that cash advances received by officers and employees of BENECO had beed virtually written off in the books of BENECO. COA directed BENECO to secure the approval of the Nat’l Electric Admin (NEA) before writing off said cash advances.

COA issued another memo addressed to Cosalan inviting attention to the fact that the audit of per diems and allowances received by

officials and members of the Board of Directors of BENECO showed substantial inconsistencies with the directives of the NEA. The memo once again directed the taking of immediate action in conformity with existing NEA regulations.

BENECO received COA Audit Report on the financial status and operations of BENECO. The report noter the irregularities in the use of funds released by NEA to BENECO and recommended that appropriate remedial action be taken.

BENECO board adopted resolutions

HELD Transmission through a private carrier or letter-forwarder, instead of the Philippine Post Office, is not a recognized mode of filing pleadings. The date of delivery of pleadings to a private letter-forwarding agency is not to be considered as the date of filing thereof in court. In such cases, the date of actual receipt by the court, and not the date of delivery to the private carrier, is deemed the date of filing of that pleading.

Alipoos v. CA, 106 SCRA 159 (1981)

Where a party is represented by counsel on record, service of papers should be made to such counsel. Service to the party himself is ineffective, until the party actually gives the paper served to his counsel on which date the paper is deemed served.

Magno v. CA, 152 SCRA 555 (1987)

When a party is represented by counsel, notice should be made upon the counsel of record at his given address to which notices of all kinds emanating from the court should be sent in the absence of a proper and adequate notice to the court of a change of address. The rule is that in case of failure of the addressee to claim his registered mail, service of notice becomes effective at the expiration of the 5-day period from the date of first notice. If counsel moved to another address without informing the court of his change of address the omission or neglect will not affect the date the paper is deemed served. Subsequent service on the clients themselves is not even necessary.

Adamson Ozanam Educational Institution v. Adamson University Faculty and Employees Association, 179 SCRA 279 (1989)

Where the copy of the decision is served on a person (e.g. security guard) who is neither a clerk nor one in charge of the attorney's office, such service is invalid and is not considered as service on the party.

Aramburo v. CA, 101 SCRA 146 (1980)

The duty of proving service of the appellant's brief upon the appellee lies with the appellant. Registry receipts alone does not prove service by registered mail. The registry receipts are evidence of the posting of the mail matter with the post office of the sender — not of the delivery of said mail matter by the post office of the addressee. Furthermore, the date of actual delivery to the addressee cannot be ascertained from such registry receipts. To prove serviceby registered mail, the registry receipts must be accompanied by the affidavit of the serving party, and the registry return card or the

unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

Solar Team Entertainment v. Ricaforte, 293 SCRA 661 (1998)

Facts: Defendants filed their answer, a copy of which was served on plaintiff’s counsel through registered mail. There was no written explanation as to why service was not made personally. Plaintiff moves to expunge the answer and to declare the defendant in default. Offices of counsels of both parties are only 200 meters apart.

Held: Personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with. In adjudging the

plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged. This applies to both service of pleadings and other papers on the adverse party or his counsel and to the filing of pleadings and other papers in court. Here, in view of the proximity between the offices of opposing counsel and the absence of any attendant explanation as to why personal service of the answer was not effected, the motion to expunge was prima facie meritorious. However, the grant or denial of said motion nevertheless remained within the sound exercise of the trial court's discretion. The 1997 Rules of Civil Procedure took effect only on 1 July 1997, while the questioned answer was filed only on 8 August 1997, or on the 39th day following the effectivity of the 1997 Rules. Defendant’s counsel may not have been fully aware of the pertinent requirements. His shortcomings may be condoned. However strictest compliance with Section 11 of Rule 13 is mandated one month from promulgation of this Decision.

Carriaga, Jr. v. Malaya, 143 SCRA 441 (1986)

FACTS Plaintiffs (private respondents herein) Ana Almonte Cariaga Soon filed in her behalf and in behalf of her minor daughter Carolina, an action for (1) Annulment of a Deed of Extra-Judicial Partition of Real Property, (2) Cancellation of Transfer Certificate of Title (TCT), (3) Recovery of Real Property with damages, in the Laguna CFI. All defendants in said action filed their answer with counterclaim with the exception of defendants (petitioners herein) Jose C. Cariaga Jr. and Marieta Cariaga-Celis who were both residing abroad and were not served with summons. The lower court upon motion of plaintiffs granted them leave to effect extra-territorial service of summons upon said defendants pursuant to Secs. 7, 17 and 18 of Rule 14 of the New Rules of Court. Accordingly, summons with copies of the complaint were served to the defendants by registered mail abroad (Guam and U.S.A.) by the Clerk of Court at the instance of plaintiffs.

Defendants, who are residents of the Philippines, filed a motion to set aside the said summons and to declare the service of summons abroad by registered mail as null and void, it being allegedly irregular and unauthorized under the provisions of Rule 14 of the Rules of Court to which motion plaintiffs filed their opposition. CFI denied the motion and ruled that "Defendants Jose C. Cariaga, Jr., and Marietta C. Cariaga, having already received copies of plaintiffs' Complaint with the service of summons on them, said defendants are given NINETY (90) days from receipt of this Order within which to file responsive pleadings.

Defendants (petitioner herein), residing abroad, by special appearance and thru counsel filed their motion to consider the service of summons upon them by registered mail as null and void. CFI issued another order denying the said motion.

ISSUE Whether the service of summons by registered mail upon defendants in the case at bar is one which is contemplated within the principles laid down in the provisions of Secs. 17, 7 and 22, Rule 14 of the New Rules of Court to Wit:

"Section 17. Extraterritorial service. When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 7; or by publication in a newspaper of general circulation in such places and for such time as the

court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer."

Sec. 7. Personal service of summons. The summons shall be served by handing a copy thereof to the defendant in person, or if he refuses to receive it, by tendering it to him."

Sec. 22. Proof of service by registered mail. Service by registered mail under this rule may be proved by a certificate of the sheriff or affidavit of the person especially authorized by the court, showing that a copy of the summons and papers attached thereto, inclosed in an envelope and addressed to the defendant, with postage prepaid, has been mailed, to which certificate or affidavit the registry receipt and return card shall be attached."

HELD Under Section 17, extraterritorial service of summons is proper: (1) when the action affects the personal status of the plaintiff; (2) when the action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) when the relief demanded in such an action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when defendant nonresident's property has been attached within the Philippines (Sec. 17, Rule 14, Rules of Court).

In any of such four cases, the service of summons may, with leave of court, be effected out of the Philippines in three ways: (1) by personal service; (2) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant; and (3) in any other manner which the court may deem sufficient. The third mode of extraterritorial service of summons was substantially complied with in this case. (De Midgely v. Ferandos, 64 SCRA 23, 33, 34).

There is no question that the requirement of due process has been met as shown by the fact that defendants actually received the summonses and copies of the complaint and as evidenced by the Registry Return Cards marked as Annex A-1 (page 56-Record) and Annex B-1. Whatever defect there may have been in the service of summons was aptly corrected by the court a quo in its assailed order dated January 16, 1978, which gave said defendants ninety (90) days from receipt of order within which to file their responsive pleadings. Defendants have no reason to complain that they were unaware of the action filed against them or claim that they were denied due process.

The case of Habana v. Vamenta et al., L-27091, June 30, 1970, or 33 SCRA 569, cited by the petitioners in support of their claim has no bearing in the case at bar since in said case service of summons was never made, even if defendant knew of the case against him, while in the case under consideration, service of summons was made upon them (although claimed erroneously by them as defective).

HELD When extraterritorial service of summons is proper, service by registered mail is sufficient (“in any other manner which the court may deem sufficient”). More so if the defendants actually received the summons and copies of the complaint and as evidenced by the Registry Return Cards. Whatever defect there may have been in the service of summons may be corrected by the court by giving the defendants 90 days from receipt of order within which to file their responsive pleadings.

Escolin: There is no provision that allows extraterritorial service by registered mail only. In this case, it was allowed only because the registry card was returned which proved that the defendant abroad did in fact receive the summons, otherwise the court would not have allowed it.

Montalban v. Maximo, 22 SCRA 1070 (1968)

Summons is validly served if it is left wth "some person of suitable age and discretion then residing" in the defendant’s residence, even if defendant was abroad at that time. Plaintiff is not obligated to ensure that the summons was actually delivered to the defendant. The fact that the defendant did not actually receive the summons will not invalidate the service of such summons.

Extraterritorial service is but one of the modes of effective service to bring a defendant in court. The normal method of service of summons on one temporarily absent is by substituted service. Extraterritorial service (personal service outside the country and service by publication) are not ordinary means of summoning defendants. Where personal service is impossible, substituted service becomes a necessity.

NOTE: Laus ruling now applies.

FACTS Plaintiffs commenced suit against Fr. Gerardo Maximo who, according to the complaint, was residing at the parish church at Concepcion, Malabon, Rizal. Plaintiffs' cause of action for damages sprang from a motor vehicle accident which occurred at Padre Faura St., Manila. Paul Hershell Montalban, son of plaintiffs, suffered injuries.

The complaint was filed, summons was served on defendant Fr. Maximo at the parish church of Concepcion, Malabon, Rizal, through Fr. Arsenio Bautista — a priest in the same parish church.

Fr. Bautista sent a letter to the Clerk of Court of the Manila CFI, informing him that defendant Fr. Maximo left for Europe and "will be back on the first week of November." Actually, Fr. Maximo returned from abroad about the second week of October, 1958.

CFI declared defendant in default, on plaintiffs' motion. Upon plaintiffs' evidence, the court rendered judgment sentencing defendant to pay damages claimed by plaintiff.

Plaintiffs themselves wrote defendant Fr. Maximo, at the Malabon Catholic Church, informing the latter of the CFI's decision, requesting prompt compliance therewith and suggesting that he communicate with or personally see their lawyer, Jose W. Diokno, at the latter's address, 332 Regina Building, Escolta, Manila.

Defendant, through his legal counsel, Dr. Nicanor T. Santos, answered the foregoing letter expressing regret that he could not comply with plaintiffs' request, because he (defendant) was not aware of the said civil case, and that, in the criminal action arising out of the same incident, said defendant was acquitted by the Municipal Court of Manila.

Deputy Sheriff of Rizal notified defendant of the issuance of the writ of execution and demanded payment of the amount set forth therein. The Sheriff's return to the writ shows that in response to such demand, defendant alleged that he was then "financially hard up," and that the Sheriff found no property that could be subject to execution.

An alias writ of execution was issued. Copy thereof was received by defendant.

Deputy Sheriff attached and levied on a residential house located in Caloocan City and purportedly belonging to defendant.

Two years and two months after defendant admittedly learned of the lower court's decision from counsel for plaintiffs herein, said defendant, by counsel, filed a verified motion in the same case praying for the annulment of the entire proceedings. His ground is this: Summons was not duly served upon him "as provided under Sec. 7, Rule 7 of the Rules of Court"; accordingly, the lower court "did not acquire jurisdiction over his person", and "the trial and decision by default" are "null and void,"

The court denied this motion.

Defendant's move to reconsider was rejected by the court.

Hence, this appeal from the orders duly certified to the SC by the CA.

After the case was submitted for decision, defendant's lawyer informed the SC of the death of defendant on August 1, 1965.

Following extensive efforts to have the deceased defendant substituted by any of his heirs or the executor or administrator of his estate, which were to no avail, the SC appointed the Clerk of Court of the Maniala CFI, representative of the deceased defendant.

HELD 1. A question of transcendental importance which necessarily involves an inquiry into procedural due process is whether summons in a suit in personam against a resident of the Philippines temporarily absent therefrom may be validly effected by substituted service under Section 8, Rule 14 (formerly Section 8, Rule 7) of the Rules of Court. A head on collision of views becomes inevitable considering the diametrically opposing positions taken by plaintiffs, on the one hand, and defendant, on the other. For, plaintiffs make the point that even with defendant temporarily abroad, substituted service is valid under Section 8 by leaving a copy of the summons "at the defendant's dwelling house or residence with some person of suitable age and discretion then residing therein."

Plaintiffs argue that if the ordinary method prescribed by the rules, that is, personal service under Section 7, Rule 14, is not feasible, then the substituted service in Section 8 aforesaid comes into play. Section 8 says:

"SEC. 8. Substituted service. — If the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof."

Upon the other hand, defendant advances the theory that in a situation like the present, where defendant was temporarily abroad, the sole and exclusive method of service of summons in a case in personam is that set forth in Section 18, Rule 14 of the Rules (formerly Section 18, Rule 7), which reads:

"SEC. 18. Residents temporarily out of the Philippines. — When an action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be effected out of the Philippines, as under the preceding section."

Section 17 referred to in Section 18 (Section 17, Rule 7 in the old Rules) in turn states:

"SEC. 17. Extraterritorial service. — When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 7; or by publication in a newspaper of general circulation in such places and for such time as the court may order,

in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time which shall not be less than sixty (60) days after notice, within which the defendant must answer."

Historically, in its common-law origin, the jurisdiction of courts to render judgments in personam was grounded on their de facto power over defendant's person. Jurisdiction was based on the power to seize and imprison defendant. If a defendant was absent from the territory, the fact that he was a citizen would not enable the court's officers to seize him and service could not represent this power. Hence, his presence within the territorial jurisdiction was a prerequisite to the rendition of a judgment personally binding against him. Anglo-American law then emphasized the power concept of jurisdiction.

Continental law, however, was somewhat different. It had two fundamental principles of Roman origin: (1) in suits in personam and those relating to movables, courts of the domicile of the defendant have general jurisdiction — actor rei forum sequitur; and (2) in actions concerning immovables, the courts of the situs have exclusive jurisdiction.

In the development of the law, the variance between Anglo- American law and continental law became "less and less clear-cut" because "American law has had to yield to the increasing necessity of enlarging more and more the catalogue of forums available to the plaintiff."

Thus it is, that American cases forged the doctrine, now long recognized, that domiciliaries of a state, though temporarily out of its territorial jurisdiction, are always amenable to suits in personam therein. And this precept is the foundation for the American rule that declares substituted service binding on absent residents. The leading case of Milliken vs. Meyer, furnishes the rationale:

" . . . the authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. 'Enjoyment of the privileges of residence within the state and the attendant right to invoke the protection of its laws, are inseparable' from the various incidences of state citizenship . . . The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed e reasonable method for apprising such an absent party of the proceedings against him."

There should be no doubt, therefore, that in suits in personam, courts have jurisdiction over residents temporarily out of the country.

This brings us to the question of procedural due process. Substituted service such as one contemplated in Section 8 upon a temporarily absent resident, it has been held, is wholly adequate to meet the requirements of due process. The constitutional requirement of due process exacts that the service be such as may be reasonably expected to give the notice desired. Once the service provided by the rules reasonably accomplishes that end, the requirement of justice is answered, the traditional notions of fair play are satisfied; due process is served.

In American jurisprudence, whether a defendant be in another state under the federal system or is abroad in Europe, substituted service is still considered to be valid. The language in Milliken vs. Meyer, supra, is expressive: "Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard. If it is, then traditional notions of fair play and substantial justice (McDonald vs. Mabee, supra) implicit in due process are satisfied."

When the framers of our Rules adapted Section 8, it is to be implied that they intended to give the provision the same meaning shaped out by the jurisprudence of the jurisdiction from whence it was patterned. Section 8 is to be viewed in the same context it is understood in the American legal system. The word "defendant" in that provision is to be construed as including any resident of this country. By comparative construction, Section 8 is to be applied to all resident defendants — without distinction as to whether he is physically present in this country or not.

Chief Justice Moran shares this view. Commenting on Section 18, Rule 14, he states: "Since the defendant is residing in the Philippines, jurisdiction over his person may be acquired by Philippine courts by substituted service of summons under section 8. But extraterritorial service is allowed also by leave of court according to the above provision [Section 18]." Justice Martin regards the word "residence" in Section 8 as "the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the state at the time."

This construction is but fair. It is in accord with substantial justice. The burden on a plaintiff is not to be enlarged with a restrictive construction as desired by defendant here. Under the rules, a plaintiff, in the initial stage of suit, is merely required to know the defendant's "dwelling house or residence" or his "office or regular place of business" — and no more. He is not asked to investigate where a resident defendant actually is, at the precise moment of filing suit. Once defendant's dwelling house or residence or office or regular place of business is known, he can expect valid service of summons to be made on "some person

of suitable age and discretion then residing" in defendant's dwelling house or residence, or on "some competent person in charge" of his office or regular place of business. By the terms of the law, plaintiff is not even duty-bound to see to it that the person upon whom service was actually made delivers the summons to defendant or informs him about it. The law presumes that for him.

It is immaterial then that defendant does not in fact receive actual notice. This will not affect the validity of the service. Accordingly, the defendant may be charged by a judgment in personam as a result of legal proceedings upon a method of service which is not personal, "which in fact may not become actual notice to him," and which may be accomplished in his lawful absence from the country. For, the rules do not require that papers be served on defendant personally or a showing that the papers were delivered to defendant by the person with whom they were left.

Reasons for the views just expressed are not wanting. A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up. If he does not do what is expected of him, and a case comes up in court against him, he cannot in justice raise his voice and say that he is not subject to the processes of our courts. He cannot stop a suit from being filed against him upon a claim that he cannot be summoned at his dwelling house or residence or his office or regular place of business.

Not that he cannot be reached within a reasonable time to enable him to contest a suit against him. There are now advanced facilities of communication. Long distance telephone calls and cablegrams make it easy for one he left behind to communicate with him.

In the light of the foregoing, we find ourselves unwilling to concede that substituted service provided in Section 8 may be down- graded as an ineffective means to bring temporarily absent residents within the reach of our courts.

As we go back to the case at hand, there is the temporarily absent defendant who was a parish priest. Summons upon him was served upon Fr. Bautista who lived in the same convent where defendant resided. Fr. Bautista, we must assume, is a responsible person. Service upon him is effective.

2. The view we take of this case sweeps away defendant's argument that Section 18 is the sole provision that governs summons upon a defendant temporarily absent in an action in personam, as here. Indeed, defendant's posture strikes at the very language employed by this reglementary provision cited by him. The word "may" — in the statement in Section 18 that "service may, by leave of court, be effected out of the Philippines," as under Section 17 — will not support the deduction, without more, that Section 18 is the only provision controlling in this case. On the contrary, the phraseology of the rule is a recognition of the fact that substituted service — out of the Philippines — under Section 17 is but one of the modes of effective service to bring a defendant in court. And upon the basic concepts under which our rules governing processes operate, the normal method of service of summons on one temporarily absent is by substituted service set forth in Section 8. And this, because personal service outside the country and service by publication are not ordinary means of summoning defendants.

In practical terms, we perceive that — in suits in personam — the more circuitous procedure delineated in Sections 17 and 18 is resorted to by a plaintiff if defendant's dwelling house or residence or place of business in this country is not known; or, if known, service upon him cannot be had thereat upon the terms of Section 8. Here, since personal service is impossible, resort to substituted service becomes a necessity. A comparison between the service in Section 8 and that in Sections 17 and 18 is beside the point. They both provide for substituted service. Anyway, as Goodrich observed: "[I]f a substitute is to be made where an actual personal service is impossible, 'the best is none too good.'"

3. The judgment has long since become final. It enjoys the presumption of regularity. It is, unless stricken down, entitled to respect. Non quieta movere. Because "[p]ublic policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law." 25

The norm of conduct observed by defendant would not, we believe, tilt the scales of justice in his favor. We go to the background facts. Logic and common sense tell us that Fr. Bautista who received the summons and who took interest in the case must have informed defendant one way or another of the suit, at the latest upon his return in October, 1958. By then there was still time for him to move to set aside the default order of September 20, 1958. Defendant did not move. It is well to remember also that judgment by default was not rendered against defendant until June 8, 1959, or almost nine (9) months after the default order was issued. Again, defendant did nothing. According to defendant, he learned of that judgment on December 20, 1959. The full impact of the judgment totalling P34,000 must have by then left an indelible mark in his mind. A judgment of a court of justice is no piddling matter. It should not be trifled with. Especially so when the amount is big, as it is here. That same day — December 20 — his attorney took a hand on the matter, wrote back plaintiffs refusing payment of the claim. The first writ of execution

was served on defendant on January 14, 1960. That time he did not pay, because according to the Sheriff's return, defendant then stated that he was "financially hard up."

Defendant did not bestir himself until February 20, 1962, i.e., not less than two years and two months after he learned-by his own admission-of the judgment. And, that was shortly after levy was made on his house in Caloocan. It is in this factual environment that then CFI Judge Magno Gatmaitan, in his order of March 24, 1962, correctly observed that 'the Court once again believes that this solution (denial of the motion to reconsider the appealed order) is just because of the apparent intentional inaction of defendant since 20 December, 1959."

Indeed, it was not right that defendant should have supinely sat on the decision, and deliberately disregarded the import thereof. Neither was it correct for him to have waited so long, slept on his rights, and only put plaintiffs to task when his own property was threatened because of the levy and execution thereon.

The decision below may not thus be annulled. Plaintiffs may not be compelled to file a fresh suit. Because, prejudice to plaintiffs, which could have been avoided by defendant, will become a reality. The additional expense, trouble and anxiety need not be essayed. The accident took place on December 16, 1957. The lower court's decision made mention of two eyewitnesses and two doctors of medicine who testified as to injuries. To bring back those witnesses to court becomes a serious problem. Plaintiffs will have to search for them and if found, they may not be able to present to the court a narrative as accurately as they had done before. Time has an unfortunate tendency of obliterating occurrences from a witness' memory. Recollections are apt to be blurred. Human memory can even be treacherous. Lapse of time may also carry with it dissipation of other evidence. Surely, there is great validity to the statement that the march of time is truth in flight. 26 These, in broad outlines, give life to the salutary policy on which laches is founded.

WHEREFORE, the orders appealed from dated March 3, 1962 and March 24, 1962 are hereby affirmed.

Sec. 17. Leave of court. — Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (19)

Sec. 18. Proof of service. — The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20)

Sec. 19. Proof of service by publication. — If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (21)

Proof of service of summons

.1 personal or substituted

.a in writing

.b by the server

.c set forth the manner, place, and date of service

.d specify

)1 any papers which have been served with the process and

)2 the name of the person who received the same

.e sworn to when made by a person other than a sheriff or his deputy

.2 by publication

.a affidavit of

)1 the printer, his foreman or principal clerk, or

)2 the editor, business or advertising manager

.b to which affidavit a copy of the publication shall be attached

.c an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address

Sec. 20. Voluntary appearance. — The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)

This is a reiteration of La Naval case.

Assertion by the defendant of an affirmative relief is a voluntary appearance before the court.

Filing of an answer is automatically a voluntary appearance.

de Leon: cf this with Corporation Law principles on foreign corporation being sued.

a. Cases

Bello v. Ubo, 117 SCRA 91 (1982)

The enumeration of persons who may serve summons (sheriff or other proper court officer of the province or, for special reasons, by a person especially authorized to serve the summons by the judge of the court which issued the same) is exclusive. Where summons was served by a police officer, the court which issued the summons did not acquire jurisdiction over the person of the defendants. Mere tender of the summons without giving the defendant a copy of the summons and the of the complaint makes service highly irregular. Proof of service of a summons shall be sworn to when made by a person other than the sheriff or his deputy. One copy of the summons should be served on each defendant.

Escolin: The court can deputize anyone, even civilians, to serve summons. Had the police officer been deputized, the fact of service of summons by him is by itself not enough to invalidate such service of summons.

FACTS Plaintiff filed with Leyte CFI a complaint for recovery of real property with damages against the defendants praying, among other things, that he be declared the true and lawful owner of the parcel of land which had been forcibly occupied by the defendants since 1962 under claim of ownership, and that the defendants be ordered to pay him the sums representing the value of the coconuts harvested from the land since 1962; moral damages in an amount the court may find reasonable; P260.00 for expenses of relocation survey; P300.00 attorney's fees and the incidental expenses and costs of the proceeding.

Summonses were issued on May 4, 1967, requiring the defendants to file their answer to the complaint within 15 days from service thereof. A certain Patrolman Castulo Yobia of the Police Department of Jaro, Leyte, served the summons on the defendants on May 15, 1967.

No answer was filed by the defendants. Plaintiff's counsel filed a motion to declare defendants in default. Acting upon said motion, the CFI declared the defendants in default and directed the plaintiff to present ex-parte his evidence on the 24th day of the same month. Thereafter a judgment by default was rendered by the CFI.

Upon receipt of the order of default, the defendants contracted the services of Atty. Generoso Casimpan who immediately inquired from Pat. Castulo Yobia about the service of the summons. Pat. Yobia then showed him a copy of the complaint which he failed to deliver to the defendants.

Defendants' counsel filed a motion for relief from judgment charging irregularity in the service of the summons and praying that the order of default and the judgment by default be set aside and that defendants' answer, which was attached to said motion, be admitted. The defendants alleged in said motion that the subject land was inherited by them so that they have a good and valid right thereto. They further alleged that they had been paying taxes on the land that the complaint was filed merely to compel them to settle a criminal case for frustrated homicide which they had filed against the plaintiff's son.

Leyte CFI issued an order denying the motion for relief from judgment on the ground that the same was not accompanied by an affidavit of merit. A copy of said order was received by the defendants on September 28, 1967.

Defendants' counsel filed a motion for reconsideration contending that since the motion for relief from judgment was predicated on lack of jurisdiction over the person of the defendants, the same need not be accompanied by an affidavit of merit, However, before the court could act on the motion for reconsideration, the defendants' counsel amended the same and attached thereto, their affidavit of merit.

Leyte CFI issued an order denying defendants' motion for reconsideration. A copy of said order was received by the defendants on January 9, 1968.

Defendants, thru counsel, filed a notice of appeal and a motion to appeal as pauper and submitted to the court for approval their record on appeal. The plaintiff, on the other hand, filed on January 31, 1968, a motion for execution pending appeal.

Leyte CFI issued an omnibus order approving defendants' record on appeal and directing that the appeal be given due course; granting defendants' motion to appeal as pauper; and denying plaintiff's motion for execution pending appeal.

ISSUE Was there a valid and effective service of summons?

HELD We hold that there was no valid service of summons on the defendants and, consequently, the Leyte CFI did not acquire jurisdiction over their person.

Sec. 5, Rule 14 of the Rules of Court, expressly provides that summons may be served by the sheriff or other proper court officer of the province or, for special reasons, by a person especially authorized to serve the summons by the judge of the court which issued the same. Contrary to appellee's contention,

this enumeration is exclusive. Thus, in Sequito vs. Letrondo, G.R. No. L-11588, July 20, 1959, 105 Phil. 1139, We considered as irregular the service of summons by a police sergeant who was not a sheriff or a court officer and who was not authorized by the court to deliver the summons. And in the more recent case of Spouses Olar vs. Cuna, G.R. No. L-47935, May 5, 1979, 90 SCRA 114, We ruled that the postmaster of Bato, Leyte, not being a sheriff or court officer, or a person authorized by the court to serve the summons cannot validly serve the summons. There, as in the case at bar where summons was served by one who is not included in the specification of Sec. 5, Rule 14 of the Rules of Court, this Court had to rule that the court which issued the summons did not acquire jurisdiction over the person of the defendants.

Furthermore, the appellants point to other irregularities which attended the service of summons by Pat. Yobia. Thus, it is alleged that said policeman merely tendered the summons to them and did not give them a copy of the same and of the complaint. While it is true that Pat. Yobia had denied such allegation in his counter-affidavit which We have heretofore quoted, nevertheless, We find appellants' version to be more credible. For, the records of the case are replete with indications that the serving policeman was grossly ignorant of the rules concerning summons. Thus, the return of service shows that the summons was first served on the plaintiff (back of p. 3, records). Besides, such return of service was not made under oath - in violation of Sec. 20, Rule 14 of the Rules of Court - which requires that "the proof of service of a summons . . . shall be sworn to when made by a person other than the sheriff or his deputy." And even if We were to give credence to Pat. Yobia's counter-affidavit, We would still find the service of the summons to be irregular since it is expressly admitted therein that only one copy of the summons and of the complaint was served on the two defendants.

Since a court acquires jurisdiction over the person of the defendant only by means of a valid service of summons, trial and judgment without such valid service are, therefore, null and void.

WHEREFORE. the trial court's order of default and judgment by default are set aside and said court is directed to accept defendants-appellants' answer to the complaint and to conduct further proceedings on the case. Costs against plaintiff-appellee.

Laus v. CA, 219 SCRA 688 (1993)

Facts: Torres filed against Laus a complaint for the collection of a sum of money. Deputy Sheriff proceeded to the defendant’s address to serve summons. He found no one in the house of defendants when he arrived and then waited for 10 minutes. Thereupon, 2 women arrived and told him, upon his inquiry, that the defendants were not around. He then served the summons to the older woman, Josephine Areola, then 11 years old. On the same date, Deputy Sheriff Cruz executed and filed a return. Defendants did not file an answer, and hence was declared and judged in default. Defendants by way of a special appearance, filed a motion to dismiss the case for lack of jurisdiction over their persons. They allege that the service of summons was ineffective because it was not indicated in the return that the sheriff had first exerted efforts to serve the same personally before resorting to substituted service.

Held: Since the defendants did not voluntarily submit to the jurisdiction of the trial court, proper service of summons became imperative. The general rule is that summons must be personally served. If this mode of service cannot be effected within a reasonable time, substituted service may be resorted to. "Within a reasonable time" contemplates a period of time longer than "prompt," and presupposes that a prior attempt at personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court, had failed. The substituted service should be availed only when the defendant cannot be served promptly in person. Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service. The sheriff's return in the case at bar readily reveals that it does not (a) indicate the impossibility of service of summons within a reasonable time, (b) specify the efforts exerted to locate the petitioners and (c) state that it was served on a person of sufficient age and discretion residing therein. The fact of the matter is that Deputy Sheriff Cruz resorted to a substituted service on his first — and only — attempt to effect a personal service. Upon being informed that the defendants were not around at that time, he immediately resorted to a substituted service through Josephine Areola, a person whose age he did not even know or attempt to discover. He did not even inquire about the whereabouts of the defendants, the time they were expected to return home, the hours of the day they could be contacted at their house or the location of their offices, if any, in order that he could faithfully comply with the requirement of personal service. No earnest efforts were exerted by Deputy Sheriff Cruz to effect the personal service of summons. There was undue, if not indecent, haste to serve the summons at the first attempt without making sure that personal service was, by then and even thereafter, an impossibility.

Furthermore, husband of defendant was impleaded as a co-defendant on the theory that the liability is a conjugal partnership liability. He was sued as an indispensable party. It was not even alleged that he had been served with summons at all. Hence the TC never acquired jurisdiction over his person and judgment against him was null and void.

Valmonte v. CA, 252 SCRA 92 (1996)

Facts: Dimalanta files a complaint for partition of real property and accounting of rentals against spouses Valmonte. Lourdes Valmonte was residing in Wasington. Alfredo Valmonte was practicing law in Manila.

In a previous letter to Dimalanta, Lourdes stated that in regard to the partition of the property in question, all communications intended for Lourdes should be sent to her husband. The complaint now alleges that summons on Lourdes may be served on her husband Alfredo in his office in Manila. Summons was served on Alfredo. Alfredo accepted the summons, insofar as he was concerned, but refused to accept the summons for his wife, Lourdes on the ground that he was not authorized to accept the process on her behalf. Accordingly the process server left without leaving a copy of the summons and complaint for Lourdes. Alfredo filed his answer with counterclaim. Lourdes did not file her answer. RTC refused to declare Lourdes in default. CA reverses and declared her in default.

Held: In an action in personam, personal service of summons or, if this is not possible, substituted service, is essential. If the defendant is temporarily abroad, but a Philippine resident, service of summons may, by leave of court, be made by publication. A resident defendant in an action in personam, who cannot be personally served with summons, may be summoned either by means of substituted service or by publication. It should be noted that the defendant must be a resident of the Philippines. On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a nonresident and he is not found in the country, summons may be served exterritorialy.

Plaintiff’s action in this case, which is for partition and accounting, is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the defendant's interest in a specific property and not to render a judgment against him. As defendant Lourdes is a nonresident who is not found in the Philippines, service of summons on her must be either (1) by personal service; (2) by publication and registered mail; or (3) in any other manner which the court may deem sufficient. Since the service of summons upon Lourdes was not done by means of any of the first two modes. Neither does it qualify under the 3rd mode. This mode of service, like the first two, must be made outside the Philippines, such as through the Philippine Embassy in the foreign country where the defendant resides. Furthermore, service of summons on Alfredo was not made upon the order of the court and certainly was not a mode deemed sufficient by the court which in fact refused to consider the service to be valid and on that basis declare Lourdes in default.

In the second place, service in the attempted manner was not made upon prior leave of the trial court as required. Such leave must be applied for by motion in writing, supported by affidavit of the plaintiff or some person on his behalf and setting forth the grounds for the application. Finally, because there was no order granting such leave, petitioner Lourdes was not given ample time to file her Answer which, according to the rules, shall be not less than 60 days after notice. It must be noted that the period to file an Answer in an action against a resident defendant (15 days from service) differs from the period given in an action filed against a nonresident defendant who is not found in the Philippines (at least 60 days from notice).

Lourdes did not appoint her husband as her attorney-in-fact. Although she wrote plaintiff that "all communications" intended for her should be addressed to her husband who is also her lawyer at the latter's address in Manila, no power of attorney to receive summons for her can be inferred therefrom. In fact the letter was written seven months before the filing of this case below, and it appears that it was written in connection with the negotiations between her and plaintiff, concerning the partition of the property in question. As is usual in negotiations of this kind, the exchange of correspondence was carried on by counsel for the parties. But the authority given to defendant's husband in these negotiations certainly cannot be construed as also including an authority to represent her in any litigation.

Escolin: Substituted service could not be made here because an essential requisite of substituted service could not be complied with, cf Rule 14, Sec. 7

Sec. 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (8a)

de Leon: I think the essential requisite that Justice Escolin was referring to is that the defendant is a resident of the Philippines. Remember, if a defendant is a non-resident, he may not be summoned through substituted service, only extraterritorial service.


Action for deficiency judgment is an action in personam, in which case, summons may not be served by publication. The remedy is to attach property of the defendant, then serve summons by publication. When summons could not be sereved, the remedy is not to dismiss the case but retain the case in the court’s archives.

Escolin: Citizen Surety could not have availed of service by publication under Rule 14, Sec. 14 because this provision applies only to actions in rem. He should have attached defendant’s property under Rule 57, Sec. 1 (f)

Section 1. Grounds upon which attachment may issue. — xxx:

(f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.(1a)

to convert the action into quasi in rem, and then serve summons by publication.

FACTS Petitioner Citizens' Surety filed its complaint in the Manila CFI, alleging that at request of defendant Santiago Dacanay, the plaintiff Surety Company had issued its Surety Bonds Nos. 4942 and 4944, the first, in favor of Gregorio Fajardo to guarantee payment of a P5,000-promissory note executed by said Dacanay, and the second, in favor of Manufacturers Bank & Trust Co., to guarantee payment of another promissory note in like amount; that in consideration of said bonds, Santiago and Josefina Dacanay executed Indemnity Agreements, binding themselves jointly and severally to indemnify plaintiff for any losses, costs and expenses which it might sustain in connection with the issuance of the bonds aforesaid, with interest at 12% per annum; that as additional security, the Dacanays mortgaged to plaintiff a parcel of land in Baguio City, covered by Certificate of Title No. T-8116, the mortgage having been duly recorded; that the promissory notes were not paid .and as a result, plaintiff Surety was compelled to pay P5,000.00 to Gregorio Fajardo and P4,081.69 to the Manufacturers' Bank; that the Dacanays failed to reimburse the Surety for such payments, whereupon the Surety caused the extrajudicial foreclosure of the mortgage to pay its claim of P12,941.69 representing its payments, interest and stipulated liquidated damages: that at the foreclosure sale, the land mortgaged was sold to plaintiff, as highest bidder, for the sum of P2,000.00 leaving an unsatisfied balance of P10,491.69, that plaintiff sought to recover from defendants Dacanay, plus 10% thereof as attorneys' fees, and the costs.

At petitioner's request, respondent Judge caused summons to be made by publication in the newspaper Philippines Herald. But despite the publication and deposit of a prepaid copy of the complaint at the Manila post office, defendants did not appear within the period of 60 days from last publication, as required by the summons.

Plaintiff then asked that defendants be declared in default; but instead, the Judge, by order of May 16, 1970, asked it to show cause why the action should not be dismissed, the suit being in personam and defendants not having appeared. Then, on May 29, 1970, respondent Judge dismissed the case, despite plaintiff Surety's argument that the summons by publication was sufficient and valid under section 16 of Rule 14 of the Revised Rules of Court.

HELD We agree with respondent Judge that the action of plaintiff petitioner, being in personam, the Court could not validly acquire jurisdiction on a non-appearing defendant, absent a personal service of summons within the forum. We have explicitly so ruled in Pantaleon vs. Asunción, 105 Phil. 765, pointing out without such personal service, any judgment on a non-appearing defendant would be violative of due process.

The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached under Rule 57, section 1(f), in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective.

But because debtors who abscond and conceal themselves are also quite adept at concealing their properties, the dismissal of the case below by respondent Judge should be set aside and the case held pending in the court's archives, until petitioner as plaintiff succeeds in determining the whereabouts of the defendants' person or properties and causes valid summons to be served personally or by publication as the case may be. In this manner, the tolling of the period of prescription for as long as the debtor remains in hiding would properly be a matter of court records and he can not emerge after a sufficient lapse of time from the dismissal of the case to profit from his own misdeed and claim prescription of his just debt.

WHEREFORE, the order of dismissal of the case issued by the Court below is hereby set aside, and in the interest of justice, the proceedings are ordered suspended, to be held pending until the plaintiff petitioner succeeds in ascertaining the whereabouts of the defendants and/or locating properties of the same, to enable proper summons to be issued conformably to this Opinion. No costs.

Kawasaki Port Services v. Amores, 199 SCRA 230 (1991)

Facts: C.F. Sharp Kabushiki Kaisha is corporation organized under the law of Japan. It appears to have incurred obligations to several creditors amongst which are defendants, also foreign corporations organized and existing under the laws of Japan. It defaulted on its creditors. Thereafter defendants have resorted to demanding payment from C.F. Sharp & Co., Inc., a corporation organized and existing under the laws of the Philippines. C.F. Sharp & Co., Inc. filed a complaint for injunction and/or declaratory relief. Since the defendants are non-residents, without business addresses in the Philippines but in Japan, extraterritorial service of summons was resorted to. Thereafter, defendants filed their special appearances to question the court’s jurisdiction over their persons.

Held: Where the complaint is purely an action for injunction, it is a personal action as well as an action in personam, not an action in rem or quasi in rem. As a personal action, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the court. In an action for injunction, extra-territorial service of summons and complaint upon the non-resident defendants cannot subject them to the processes of the RTCs. Extra-territorial service of summons will not confer on the court jurisdiction.

Dial Corporation v. Soriano, 161 SCRA 737 (1988)

Where the action is purely an action for injunction (e.g. to restrain the defendants from enforcing against contracts and to recover damages), it is clearly a personal action as well as an action in personam, not an action in rem or quasi in rem. In actions in personam, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the court.

C. Motions

1. Rule 15

Section 1. Motion defined. — A motion is an application for relief other than by a pleading. (1a)

motion – an application for relief other than by a pleading

A motion is not a pleading!

cf Rule 6, Sec. 1

Section 1. Pleadings defined. — Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (1a)

Sec. 2. Motions must be in writing. — All motions shall be in writing except those made in open court or in the course of a hearing or trial. (2a)

Sec. 3. Contents. — A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. (3a)

Contents of a motion

.1 relief sought to be obtained

.2 the grounds upon which it is based

.3 supporting affidavits and other papers (if required by these Rules or necessary to prove facts alleged therein)

Sec. 4. Hearing of motion. — Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. (4a)

Non-litigous motions need not be set for hearing.

Sec. 5. Notice of hearing. — The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. (5a)

Sec. 6. Proof of service necessary. — No written motion set for hearing shall be acted upon by the court without proof of service thereof. (6a)

Requisites for a motion not in open court or in the course of a hearing or trial

.1 in writing

.2 hearing set by the applicant

.3 notice of hearing which specifies the time and date of the hearing, not later than 10 days from filing of the motion (except for motions which the court may act upon without prejudicing the rights of the adverse party)

.4 served to ensure its receipt by the other party at least 3 days before the date of hearing, unless the court for good cause sets the hearing on shorter notice (except for motions which the court may act upon without prejudicing the rights of the adverse party)

.5 proof of service

Sec. 7. Motion day. — Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. (7a)

Sec. 8. Omnibus motion. — Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. (8a)

cf Rule 9 Sec. 1

Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the

pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)

Sec. 9. Motion for leave. — A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted. (n)

Sec. 10. Form. — The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. (9a)

a. Cases

Corpus v. Corpus, 148 SCRA 21 (1987)

Where a written motion does not state the time and place of the hearing or is not served upon all the parties concerned at least 3 days in advance, the motion is nothing but a useless piece of paper. No motion shall be acted upon by the court without proof of such notice of hearing.

FACTS Leona and Iladia Corpus, claiming to be the legal heirs of the late spouses Domingo Corpus and Clara Sibayan, filed an action against the spouses Jacinta Corpus and Pedro Aduca, in the Pangasinan CFI for the recovery of possession, with damages, of a parcel of land, situated in Barrio Pinmaludpud, Urdaneta, Pangasinan, and registered in the name of "Heirs of Domingo Corpus".

After several postponements at the behest of both parties, the CFI set the pre-trial conference on 28 August 1967. On 15 August 1967, however, counsel for the defendants filed a motion for the postponement of the pre-trial conference set for 28 August 1967 claiming that he had to appear before the Nueva Ecija CFI on the same date in connection with Civil Case No. SD-206 of said court. A copy of the Order issued in Civil Case No. SD-206 of the Nueva Ecija CFI was appended to the motion.

When the motion for postponement was heard on 28 August 1967, counsel for the plaintiffs interposed opposition thereto, claiming that he was not furnished with a copy of said motion for postponement. CFI denied the motion for postponement and allowed the plaintiffs to present their evidence ex-parte before the clerk of court who was commissioned to receive the same.

A copy of the trial court's Order dated 28 August 1967 denying defendants' motion for postponement and allowing the plaintiffs to adduce evidence ex-parte was received by defendants on 12 September 1967. 7 Defendants took no step to have said Order reconsidered and set aside.

CFI ruled against the defendants and ordered them to vacate the property. Counsel for the defendants received a copy of the decision on 7 June 1968, and on 1 July 1968, he filed a motion for new trial, praying that: (1) a new trial be held on the ground that the failure of the defendants and their counsel to be present at the pre-trial conference set for 28 August 1967 was due to mistake or excusable negligence; (2) the decision dated 1 April 1968 be set aside and the defendants be allowed to cross-examine the witnesses for the plaintiffs and to present evidence on their behalf; and (3) the defendants be awarded such other reliefs and remedies as are just and equitable under the premises.

In support of his motion for new trial, counsel for the defendants contended that he complied with the requirement regarding notice to adverse parties by sending a copy of his motion for postponement to counsel for the plaintiffs by registered mail on 15 August 1967; and that his non-appearance at the pre-trial conference on 28 August 1967 was justified as he had to attend on the same date another hearing in the Nueva Ecija CFI.

Counsel for the defendants further claimed that Domingo Corpus died on 15 April 1956, and not in 1948, as claimed by the plaintiffs, so that the defendant Jacinta Corpus, although a spurious child of Domingo Corpus, is entitled to a share in the estate of said Domingo Corpus. A copy of the death certificate of Domingo Corpus, attested to by the Local Civil Registrar of Muñoz, Nueva Ecija where the said Domingo Corpus died, was attached to the motion.

CFI denied the motion for new trial on the grounds that the Order issued on 28 August 1967, copy of which was received by counsel for the defendants on 12 September 1967, had already become final when the defendants filed their motion for new trial on 1 July 1968; and that the alleged misrepresentation by the plaintiffs of the true date of the death of Domingo Corpus is not a ground for new trial.

Whereupon, the defendants interposed the present appeal. They claim that the lower court erred: (1) in denying their motion for postponement and in allowing the plaintiffs to present their evidence ex-parte; and (2) in denying their motion for new trial.

HELD We find no merit in the appeal. To begin with, we see nothing abusive or irregular in the actions taken by the lower court in denying the defendants-appellants' motion for postponement of the pre-trial conference set for 28 August 1967, and their motion for new trial. A close examination of the record shows that said motion for postponement does not show that a copy thereof had been served upon the adverse party as there is no proof of service thereof. In fact, the movants did not indicate therein the manner by which a copy of the motion was served upon counsel for the plaintiffs-appellees. Counsel for the defendants-appellants merely stated therein: "Copy furnished Atty. Federico R. Vinluan, San Nicolas, Pangasinan." In the motion for new trial, counsel for the defendants-appellants claimed that he sent to plaintiffs-appellees' counsel a copy of the motion for postponement by registered mail. The motion for

postponement, however, does not contain an affidavit of the person who mailed the motion, showing compliance with the provisions of Section 5, Rule 11 of the Rules of Court, and the registry receipt issued by the mailing office, as required by Section 10 of the same Rule.

Neither does the motion for postponement adverted to state the time and place for the hearing of the same, as required by the Rules of Court. In the said motion for postponement, counsel of the defendants-appellants addressed the Clerk of the Court of First Instance of Pangasinan, Urdaneta Branch, thus: "Upon receipt of the foregoing motion please submit the same to the Honorable Court for its consideration."

And yet, the provisions of the Rules of Court requiring that a motion shall state the time and place of the hearing of the same are quite clear. Sections 4 and 5, rule 15 of the rules of Court expressly provide that a motion shall state the time and place of the hearing and shall be served upon all the parties concerned at least three (3) days in advance. And, according to Section 6 of the same Rules no motion shall be acted upon by the court without proof of such notice, and it has been held that, in such a case, the motion is nothing but a useless piece of paper. The reason is obvious: unless the movant sets the time and place of hearing, the court would have no way of determining whether the adverse party agrees or objects to the motion, and if he objects, to hear him on his objection, since the Rules do not fix any period within which he may file his reply or opposition thereto.

Besides, it appears that it was defendants-appellants' counsel who had to be in Cabanatuan City on the date of hearing so that the defendants-appellants themselves could have appeared in Court on the date set for the hearing since their presence at the pre-trial conference was also required. But, as it stands, both defendants-appellants and their counsel failed to appear at the pre-trial conference. It is a well-settled rule that the grant or denial of a motion for postponement is discretionary on the court. The defendants-appellants, as well as their counsel, should not have presumed that the motion for the deferment of the pretrial conference would be granted. They had no right to rely on the liberality of the court or on the generosity of the adverse party.

Defendants-appellants should also have taken upon themselves the duty to inquire as to what action the court took on their motion for the postponement of the pre-trial conference. In this, they failed.

WHEREFORE, the judgment appealed from should be, as it is hereby, AFFIRMED, without pronouncement as to costs.

Yap v. CA, 115 SCRA 105 (1982)

A motion for extension to file Record on Appeal, does not affect the substantive rights of the adverse party, and may be heard ex-parte, without proof of notice of hearing to the adverse party.

FACTS Private respondents, spouses Raymond and Lydia Tomassi, filed a complaint for Damages against petitioner Manuel Yap, before the Cebu CFI. Petitioner-defendant filed his Answer with Special Defenses and Counterclaim, after which, trial ensued.

CFI rendered judgment against petitioner. Copy of the Decision was received by petitioner-defendant on February 10, 1978. He filed, on March 2, 1978, a Notice of Appeal, and on March 7, 1978, a Cash Appeal Bond and Motion for Extension of twenty days from March 13, 1978 (or until April 2, 1978) within which to file his Record on Appeal.

Said Motion was not acted upon by the Trial Court. On March 30, 1978, or within the extended period prayed for, petitioner submitted his Record on Appeal. On the same date, respondents filed a Motion for the Issuance of Writ of Execution alleging that the Decision had already become final and executory as petitioner's Motion for extension of time to file Record on Appeal failed to comply with the requirements of the Rules of Court on Motions, and therefore, did not toll the running of the period to perfect an appeal.

CFI disapproved petitioner's Record on Appeal, stating:

"The records show that on March 7, 1978, defendant filed a MOTION FOR EXTENSION OF TIME TO FILE RECORD ON APPEAL, but since said motion did not contain any notice of hearing, the COURT did not act on it. The reglementary period expired on March 13, 1978, without any extension granted to defendant. It is rather, too presumptuous, on the part of the defendant to assume that the Court would grant the extension just because he prayed for it.

IN VIEW OF THE FOREGOING, the approval of defendant's RECORD ON APPEAL is hereby denied for having been filed out of time."

Petitioner moved to reconsider the said Order, but reconsideration was denied by the Trial Court. Petitioner then filed with the Court of Appeals a Petition for "Certiorari and Mandamus" praying that the CFI be ordered to approve his Record on Appeal and give due course thereto.

CA dismissed the Petition ruling that the Trial Court did not commit grave abuse of discretion in disapproving the Record on Appeal as the same was filed beyond the prescribed period. MfR was denied for lack of merit.

ISSUE The only issue is whether the said Motion for extension should mandatorily comply with the requirements of the Rules on Motions before the same may be acted upon by the trial Court. Sections 4, 5 and 6 of Rule 15 provide:

"Section 4. Notice. - Notice of a motion shall be served by the applicant to all parties concerned at least three days before the hearing thereof, together with a copy of the motion, and other papers accompanying it. The Court, however, for good cause may hear a motion on shorter notice, specially on matters which the Court may dispose of on its own motion.

"Section 5. Contents of Notice. - The notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion.

"Section 6. Proof of service to be filed with motion. - No motion shall be acted upon by the court, without proof of service of the notice hereof, except when the court is satisfied that the rights of the adverse party or parties are not affected."

HELD As a general rule, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his right be not affected without an opportunity to be heard. The three-day-notice required by law is intended not for the benefit of the movant but to avoid surprises upon the adverse party and to give the latter time to study and meet the arguments of the motion.

The Motion in question does not affect the substantive rights of private respondents as it merely seeks to extend the period to file the Record on Appeal, which extension may be granted by the Trial Court upon application made prior to the expiration of the original period. Neither was there any claim that said Motion, which was grounded on justifiable reason, was interposed to delay the appeal. As early as Moya vs. Barton, 76 Phil. 831 [1946], this Court held that a Motion requesting an extension within which to file Record on Appeal may be considered as one which may be heard ex-parte. In Que Tiac vs. Republic, 43 SCRA 56 [1972], it was similarly held that a telegraphic Motion for extension of time to file a Record on Appeal is addressed to the discretion of the Court, which may act thereon ex-parte. And in the more recent case of Commercial Union Assurance Company Limited vs. Lepanto Consolidated Mining Company, 86 SCRA 79, 98 [1978], this Court ruled that the Trial Court has the power and authority to act on an ex-parte Motion for extension of time to file the Record on Appeal, which was filed within the original period prescribed by the Rules since the said Motion did not appear to be a litigated or a contentious Motion and may be acted upon even without proof of service on adverse party.

Accordingly, we find for petitioner. Dismissal of appeals on purely technical grounds is frowned upon as the policy of the Court is to encourage the hearing of appeals on the merits. Litigants should be afforded every opportunity to establish the merits of their cases without the constraints of technicalities.

WHEREFORE, the Petition is granted. The questioned Decision and Resolution of respondent Court of Appeals dated May 22, 1979 and July 26, 1979, respectively, are hereby annulled and set aside. The Court of First Instance of Cebu, Branch XIII, is hereby directed to approve petitioner's Record on Appeal and to elevate the same to the Court of Appeals.

Azajar v. CA, 145 SCRA 333 (1986)

A MTD should be set for hearing with notice to the other party. A notice in the MTD which was addressed to the clerk of court asking him to submit the motion for the consideration of the court is fatally defective.

FACTS Petitioner Igmedio Azajar filed a complaint against respondent Cham Samco and Sons, Inc. in the Camarines Sur CFI. Azajar purchased from defendant Cham Samco, thru the latter's agent, 100 Kegs of nails of various sizes, specified in one of Cham Samco's printed order forms, and had given to the agent P18,000.00 in full payment thereof; but in breach of contract, Cham Samco had offered to deliver only a part of the quantity ordered.

Cham Samco filed a MtD on two grounds: (1) failure of the complaint to state a cause of action ---- the complaint's language indicating not a perfected sale but merely an "offer to buy by plaintiff that was partly accepted by defendant," and failing to show that as explicitly required by the order form, prices had been confirmed by Cham Samco's "Manila Office," and (2) that venue was improperly laid ---- Cham Samco's invariable condition in transactions of this nature, as Azajar well knew from many such transactions in the past, being that "any legal action thereon must be instituted in the City of Manila."

MtD contained a notice addressed to the Clerk of Court reading as follows:

The Clerk of Court

Court of First Instance of Camarines Sur

Naga City

S i r:

Please submit the foregoing motion to the Court for its consideration and resolution immediately upon receipt thereof.

Makati, Rizal for Naga City, February 4, 1974

(SGD) POLO S. PANTALEON

Copy furnished:

Atty. Augusto A. Pardalias

Naga City

NF-927

It is this notice that has given rise to the controversy at bar.

Contending that such a notice was fatally defective and rendered the MtD incapable of tolling the period to answer, Azajar filed a motion to declare Cham Samco in default, which the CFI granted. CFI pronounced Cham Samco in default and allowed Azajar to present evidence ex-parte. CFI rendered judgment by default against defendant Cham Samco. Cham Samco filed MfNT. It contended that its failure to observe the rules governing notice of motions was due to excusable negligence, "because the grounds alleged in the MtD were all in such nature and character that addressed themselves to a motu proprio resolution by the court and thus rendered a hearing dispensable." It also alleged certain defenses available to it which if duly alleged and proven, would absolve it from all liability. This motion was denied.

Cham Samco went to the CA on certiorari asserting that the CFI acted with grave abuse of discretion amounting to lack of jurisdiction in declaring it in default and then rendering judgment by default. CA dismissed the petition was dismissed for lack of merit by the Court of Appeals on November 20, 1974.

But on MfR, CA reversed itself. By Resolution dated March 25, 1975, 10 it set aside the Trial Court's order of default of February 22, 1974, judgment by default of March 13, 1974, and Order dated June 4, 1974 denying Cham Samco's motion for new trial, and directed the lower Court to allow Cham Samco to file its answer to the complaint and upon due joinder of issues, to try and decide the case on the merits.

The Court held that:

" . . . (t)he notice in the motion which was addressed to the clerk of court asking him to submit the motion for the consideration of the court is a substantial compliance with the provision of section 3 Rule 16 of the Rules of Court. Verily under the said rule, the Court has the alternative of either hearing the case or deferring the hearing and determination thereof until the trial on the merits. Thus upon the filing of said motion the court should have set the motion for hearing or outrightly deny the motion, or otherwise postpone the hearing until the trial on the ground that the grounds thereof do not appear to be indubitable. The prompt filing and apparently valid grounds invoked in the motion are not the acts and declarations of a defaulting party."

" . . . (E)ven assuming that the declaration of default of the petitioner was in order we find that the trial court committed a grave abuse of discretion when it denied the motion for new trial that was filed by the petitioner not only on the ground of excusable negligence we have above discussed but also on the ground that it has a meritorious defense." and

" . . . (E)xcessive damages have been awarded to the private respondent. In addition to ordering the petitioner to deliver to the private respondent the nails ordered by the latter, the petitioner was also ordered to pay not only P15,000 actual damages for profits that the private respondent could have earned but also consequential damages of P10,000 for the unrealized profits that the said earnings and capital of the plaintiff could have earned, plus interest in both instances, exemplary damages of P5,000 and P7,500 for attorney's fees and related expenses of litigation. Thus for the capital of respondent of P18,100.00 in the purchase of the nails, the petitioner was ordered to pay damages of a total of P37,500.00, which including the interest awarded can amount to over P40,000, more than double the value of the said investment of respondent. Under Section 1, Rule 37 of the Rules of Court award of excessive damages could be a ground for new trial."

The Court concluded its opinion with the observation that "the ends of justice would be better served in this case if we brush aside technicality and afford the petitioner its day in court."

It was wrong, of course, for Cham Samco to have failed to set its motion to dismiss for hearing on a specified date and time. The law explicitly requires that notice of a motion shall be served by the appellant to all parties concerned at least three (3) days before the hearing thereof, together with a copy of the motion, and of any affidavits and other papers accompanying it; and that the notice shall be directed to the parties concerned, stating the time and place for the hearing of the motion. The uniform holding of this Court has been that a failure to comply with the requirement is a fatal flaw. Such notice is required to avoid surprises upon the opposite party and give the latter time to study and meet the arguments of the motion, as well as to determine or make determinable the time of submission of the motion for resolution.

Cham Samco quite frankly admits its error. It pleads however that under the circumstances the error be not regarded as irremediable or that it be deemed as constituting excusable negligence, warranting relief. It argues that legal and logical considerations, which it took to be tenable, caused it to theorize that a hearing on the motion was dispensable. It also adverts to its possession of affirmative defenses in addition to those set out in its motion to dismiss which, if ventilated and established at the trial, would absolve it from all liability under the complaint.

Cham Samco's belief that it was not necessary that its motion to dismiss be set for hearing was avowedly engendered by two factors, namely:

1) the fact that while the Rules of Court "specify the motions which can be heard only with prior service upon adverse parties," 15 said Rules "do not point out which written motions may be ex parte, preferring, it appears, to leave to the court, in motions other than those specified, the discretion either to ex parte resolve . . . or to call the parties to a hearing . . . ; and

2) the further fact that its motion to dismiss was based on two grounds on which a hearing was superfluous, the first, failure of the complaint to state a cause of action, being determinable exclusively from the allegations of the complaint and no evidence being allowable thereon; and the second, that venue is improperly laid, being resolvable exclusively on the basis of documents annexed to the motion.

These considerations, to be sure, did not erase movant's duty to give notice to the adverse party of the date and time of the hearing on its motion, the purpose of said notice being, as already stressed, not only to give the latter time to oppose the motion if so minded, but also to determine the time of its submission for resolution. Without such notice, the occasion would not arise to determine with reasonable certitude whether and within what time the adverse party would respond to the motion, and when the motion might already be resolved by the Court. The duty to give that notice is imposed on the movant, not on the Court.

Withal, the reasons for Cham Samco's erroneous notion of the dispensability of a hearing on its motion to dismiss are not utterly without plausibility. This circumstance, taken together with the fact, found by the Intermediate Appellate Court and not disputed by petitioner Azajar, that Cham Samco has meritorious defenses which if proven would defeat Azajar's claim against it, and the eminent desirability more than once stressed by this Court that cases should be determined on the merits after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections, all conduce to concurrence with the Court of Appeals that "the ends of justice would be better served in this case if we brush aside technicality and afford the petitioner its day in court."

WHEREFORE, the Resolutions of the Court of Appeals appealed from, are affirmed. Costs against petitioner.

BPI v. Far East Molasses, 198 SCRA 689 (1991)

FACTS petitioner bank filed with Rizal CFI a complaint for recovery of sum of money against respondent. CFI ruled in favor of BPI. Far East received a copy of the Decision on 07jul (it had until 22jul within which to appeal). Instead of filing a notice of appeal, Far East filed in the morning of 22jul a MfR. The motion did not contain any notice of hearing.

HELD A MfR without notice of hearing is a mere scrap of paper. It presents no question which merits the attention and consideration of the court. It is not even a motion for it does not comply with the rules and hence, the clerk has no right to receive it. Without such notice, the motion is pro forma. A pro forma

motion for reconsideration does not suspend the running of the period to appeal. Furthermore, the notice of hearing shall be directed to the parties concerned, not to the clerk of court.

Moya v. Barton, 76 Phil 831 (1946)

If the extension of time asked for in the motion may be shorter than the time required to have the motion set for hearing and acted by the court, the motion for extension may be considered as one which may be heard ex-parte, without need of notice of hearing. Besides, the court has discretion to extend the period for filing the record on appeal.

D. Dismissal

1. Motion to Dismiss

a. Rule 16

Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party;

(b) That the court has no jurisdiction over the subject matter of the claim;

(c) That venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

(e) That there is another action pending between the same parties for the same cause;

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

(g) That the pleading asserting the claim states no cause of action;

(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished;

(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and

(j) That a condition precedent for filing the claim has not been complied with. (1a)

A MTD may be filed against any pleading asserting a claim, not only to a complaint, but also to a counterclaim, cross-claim, 3rd party complaint… etc..

Grounds for a MTD

.1 no jurisdiction over the person of the defending party

.2 no jurisdiction over the subject matter of the claim;

.3 venue is improperly laid

.4 plaintiff has no legal capacity to sue

.5 another action pending between the same parties for the same cause

.6 barred by a prior judgment

.7 barred by the statute of limitations

.8 the pleading asserting the claim states no cause of action

.9 the claim or demand has been paid, waived, abandoned, or otherwise extinguished

.10 claim is unenforceable under the statute of frauds

.11 non-compliance with a condition precedent for filing the claim

Sec. 2. Hearing of motion. — At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n)

Evidence presented at the hearing of the MTD are automatically part of the evidence of the offeror at the trial.

Sec. 3. Resolution of motion. — After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a)

Options of the court after hearing – but not to defer the resolution of the motion for the reason that the ground relied upon is not indubitable

.1 dismiss the action or claim

.2 deny the MTD

.3 order amendment of the pleading

Sec. 4. Time to plead. — If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (4a)

MTD tolls the period to file an answer. If denied, the movant as the remaining period from receipt of notice of denial to file his answer, but not less than 5 days in any case. If the pleading is amended, he has 15 days from service of the amended pleading to answer, unless the court provides a longer period.

de Leon: if a defendant files an answer with counterclaim, an MTD by the defendant to the counterclaim undoubtedly tolls the period to answer the counterclaim, but does it also toll the period to file a reply? I don’t think so. The responses to the answer and the counterclaim are separate.

Sec. 5. Effect of dismissal. — Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n)

Grounds for dismissal that bar refilling

.1 cause of action is barred by a prior judgment

.2 cause of action is barred by the statute of limitations

.3 claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished

.4 claim is unenforceable under the statute of frauds

cf Rule 9 Sec. 1

Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)

Grounds to dismiss that the court may invoke motu proprio

.1 the action is barred by a prior judgment

.2 the action is barred by statute of limitations

.3 no jurisdiction over the subject matter

.4 there is another action pending between the same parties for the same cause

Sec. 6. Pleading grounds as affirmative defenses. — If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a)

The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n)

Any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. The court may conduct a preliminary hearing as if an MTD had been filed.

If a complaint is dismissed not based on an MTD, but on an affirmative defense pleaded in the answer, a counterclaim pleaded in the answer may be prosecuted in the same or a separate action.

de Leon: I recall Justice Relova made a distinction between permissive and compulsory counterclaims on this point. He said if the counterclaim is compulsory, the counterclaim is also dismissed with the complaint. If the counterclaim is permissive, the counterclaim survives the dismissal. In effect, he said that the 2nd par of Sec. 6 applies only to a permissive counterclaim.

b. Cases

Ramos v. Peralta, 203 SCRA 412 (1991)

A case for quieting of title filed by the owner against the lessee is a bar to a case filed by the lessee to compel the owner to accept rental payments. Both cases involve the issue of whether the lease should be

respected. For litis pendentia to be invoked as a ground for the dismissal of an action, the concurrence of the following requisites is necessary:

.1 Identity of parties or at least such as represent the same interest in both actions;

.2 Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and

.3 The identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res judicata in the other.

Escolin: The issue of which case was filed 1st is not relevant in determining which case to dismiss. The case with the broader scope is the one that must remain.

Lee Bun Ting v. Aligaen, 76 SCRA 416 (1977) L-30523 Apr22

Contrary doctrine handed down in a subsequent case is not ground to reopen a final and executory case. The doctrine of res judicata applies where, between a pending action and one which has been finally and definitely settled, there is identity of parties, subject matter and cause of action.

Escolin: “Law of the case” is a specie of res adjudicata.

PNB v. Hipolito, 13 SCRA 20 (1965)

Where the complaint does not show that the claim has prescribed (e.g. it alleges offer of payment which works as a renewal of the obligation), MTD on prescription should be denied. Denial of the offer of payment is improper because in a MTD, the defendant hypothetically admits the truth of the allegations of fact contained in the complaint. Such denial should be raised in the answer, not a MTD.

de Leon: Note that the rule now is that the court can not defer ruling on a MTD, but must either grant, deny or order amendment of the complaint (Rule 16, Sec. 3).

Continental Cement Corporation v. CA, 184 SCRA 728 (1990)

A MTD may be filed within the period to file a responsive pleading. An extension of time to file an answer is also an extension of time to file an MTD. A MTD tolls the period in which to file an answer.

de Leon: Under the new rules of civil procedure, after a MTD is denied, a defendant only has the remainder of the period in order to file an answer (Rule 16, Sec. 4).

2. Dismissal of Actions

a. Rule 17

Section 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)

Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. — The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4a)

Procedure in dismissing upon notice by claimant

.1 When

.a In case of original claims – any time before service of

)1 responsive pleading or

)2 motion for summary judgment

.b In case of non-original claims – any time

)1 before service of

)a responsive pleading, or

)b motion for summary judgment

)2 where ther is none, before introduction of evidence at the trial or hearing

.2 claimant files a notice of dismissal

.3 the court shall issue an order confirming the dismissal

.4 the dismissal is without prejudice, unless

.a otherwise stated in the notice

.b claimant has once dismissed in a competent court an action based on or including the same claim

Sec. 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a)

cf Rule 16, Sec. 6

Sec. 6. Pleading grounds as affirmative defenses. – xxx

The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n)

Procedure in dismissing upon motion by the claimant

.1 after service of the answer or of a motion for summary judgment

.2 claimant moves to dismiss

.3 approval of the court and upon such terms and conditions as the court deems proper

.4 dismissal shall be without prejudice, unless otherwise specified in the order

.5 counterclaims pleaded before service of motion to dismiss survive, either

.a resolved in the same action – counterclaimant must manifest such preference within 15 days from notice of the motion to dismiss

.b prosecuted in a separate action

A class suit shall not be dismissed or compromised without the approval of the court.

Sec. 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)

Grounds for Dismissal due to fault of the claimant – If, for no justifiable cause, the claimant fails to

.1 appear on the date of the presentation of his evidence in chief on the claim

.2 prosecute his action for an unreasonable length of time

.3 comply with these Rules or any order of the court

Procedure for dismissal due to fault of claimant

.1 claimant commits the grounds for dismissal

.2 court dismisses the complaint motu proprio, or upon the defendant’s motion

.3 dismissal is with prejudice, unless otherwise declared by the court.

Counterclaims survive in the same or in a separate action.

Dismissal by

.1 notice – without prejudice

.2 motion – without prejudice

.3 fault – with prejudice

Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. — xxx (moved to before Sec. 1)

b. Cases

Go v. Cruz, 172 SCRA 247 (1989)

A plaintiff has the right to cause dismissal of his action by mere notice before an answer is served on him, even if an answer had already been filed in court.

de Leon: Note that service of a motion for summary judgment also precludes right to dismiss by notice.

Jalover v. Ytoriaga, 80 SCRA 100 (1977)

After the prosecution had rested its case, the case may not be dismissed for failure to prosecute.

Mina v. Pacson, 8 SCRA 775 (1963)

Dismissal of a complaint on the ground that plaintiff refused to obey a court order to implead an indispensable party is a dismissal due to fault of the plaintiff (failure to comply with an order of the court). Such dismissal is valid and with prejudice. It is res judicata to a 2nd complaint.

Casenas v. Rosales, 19 SCRA 462 (1967)

For a valid dismissal due to failure to comply with a court order, the court order must be itself valid. Court order requiring amendment of complaint to implead the heirs of a deceased defendant, instead of ordering substitution by the decedent’s representative, is an invalid order. Dismissal on the ground of refusal to obey such an order is void.

In Mina, the court ordered the amendment of the complaint to implead an indispensable party. The order was proper, hence failure to comply was a valid ground for dismissal of the complaint. The dismissal due to fault of plaintiff being valid, it was res judicata to a 2nd complaint. In Casenas, the court ordered the amendment of the complaint to implead the heirs of a deceased party. The order was improper because the proper procedure was to substitute. Hence failure to comply was not a valid ground for dismissal of the complaint. There was no valid dismissal due to fault of plaintiff, and therefore no res judicata.

Republic Planters Bank v. Molina, 166 SCRA 39 (1988)

Res judicata requires not only jurisdiction over subject matter, but also jurisdiction over the parties. Where the court in the first case never acquired jurisdiction over a defendant, but the case was dismissed on ground of failure to prosecute, such is not a bar to a 2nd case.

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