DUERO vs. HON. COURT OF APPEALS (Jurisdiction)

The fundamental rule is that, the lack of jurisdiction of the court over an action cannot be waived by the parties, or even cured by their silence, acquiescence or even by their express consent. Further, a party may assail the jurisdiction of the court over the action at any stage of the proceedings and even on appeal. The appellate court did not err in saying that the RTC should have declared itself barren of jurisdiction over the action. Even if private respondent actively participated in the proceedings before said court, the doctrine of estoppel cannot still be properly invoked against him because the question of lack of jurisdiction may be raised at anytime and at any stage of the action. Precedents tell us that as a general rule, the jurisdiction of a court is not a question of acquiescence as a matter of fact, but an issue of conferment as a matter of law. Also, neither waiver nor estoppel shall apply to confer jurisdiction upon a court, except: barring highly meritorious and exceptional circumstances. The Court of Appeals found support for its ruling in our decision in Javier vs. Court of Appeals, thus:

“The point simply is that when a party commits error in filing his suit or proceeding in a court that lacks jurisdiction to take cognizance of the same, such act may not at once be deemed sufficient basis of estoppel. It could have been the result of an honest mistake, or of divergent interpretations of doubtful legal provisions. If any fault is to be imputed to a party taking such course of action, part of the blame should be placed on the court which shall entertain the suit, thereby lulling the parties into believing that they pursued their remedies in the correct forum. Under the rules, it is the duty of the court to dismiss an action ‘whenever it appears that the court has no jurisdiction over the subject matter.’ (Sec. 2, Rule 9, Rules of Court) Should the Court render a judgment without jurisdiction, such judgment may be impeached or annulled for lack of jurisdiction (Sec. 30, Rule 132, Ibid), within ten (10) years from the finality of the same.

Indeed, “…the trial court was duty-bound to take judicial notice of the parameters of its jurisdiction and its failure to do so, makes its decision a ‘lawless’ thing.”

Since a decision of a court without jurisdiction is null and void, it could logically never become final and executory; hence appeal therefrom by writ of error would be out of the question. Resort by private respondent to a petition for certiorari before the Court of Appeals was in order.

BARANGAY SAN ROQUE vs. HEIRS of FRANCISCO PASTOR (Jurisdiction)

In the present case, an expropriation suit does not involve the recovery of a sum of money. Rather, it deals with the exercise by the government of its authority and right to take private property for public use. In National Power Corporation v. Jocson” the Court ruled that expropriation proceedings have two phases:

"‘The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, ‘of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint.’ An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. So, too, would an order of condemnation be a final one, for thereafter as the Rules expressly state, in the proceedings before the Trial Court, ‘no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard.’

"The second phase of the eminent domain action is concerned with the determination by the court of ‘the just compensation for the property sought to be taken.’ This is done by the Court with the assistance of not more than three (3) commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue.’"

It should be stressed that the primary consideration in an expropriation suit is whether the government or any of its instrumentalities has complied with the requisites for the taking of private property. Hence, the courts determine the authority of the government entity, the necessity of the expropriation, and the observance of due process. In the main, the subject of an expropriation suit is the government’s exercise of eminent domain, a matter that is incapable of pecuniary estimation.

True, the value of the property to be expropriated is estimated in monetary terms, for the court is duty-bound to determine the just compensation for it. This, however, is merely incidental to the

expropriation suit. Indeed, that amount is determined only after the court is satisfied with the propriety of the expropriation.

Verily, the Court held in Republic of the Philippines v. Zurbano that "condemnation proceedings are within the jurisdiction of Courts of First Instance,"14 the forerunners of the regional trial courts. The said case was decided during the effectivity of the Judiciary Act of 1948 which, like BP 129 in respect to RTCs, provided that courts of first instance had original jurisdiction over "all civil actions in which the subject of the litigation is not capable of pecuniary estimation." The 1997 amendments to the Rules of Court were not intended to change these jurisprudential precedents.

We are not persuaded by respondents’ argument that the present action involves the title to or possession of a parcel of land. They cite the observation of retired Justice Jose Y. Feria, an eminent authority in remedial law, that condemnation or expropriation proceedings are examples of real actions that affect the title to or possession of a parcel of land.

Their reliance is misplaced. Justice Feria sought merely to distinguish between real and personal actions. His discussion on this point pertained to the nature of actions, not to the jurisdiction of courts. In fact, in his pre-bar lectures, he emphasizes that jurisdiction over eminent domain cases is still within the RTCs under the 1997 Rules.

To emphasize, the question in the present suit is whether the government may expropriate private property under the given set of circumstances. The government does not dispute respondents’ title to or possession of the same. Indeed, it is not a question of who has a better title or right, for the government does not even claim that it has a title to the property. It merely asserts its inherent sovereign power to "appropriate and control individual property for the public benefit, as the public necessity, convenience or welfare may demand."

RUSSELL vs. HONORABLE AUGUSTINE A. VESTIL (Jurisdiction)

The complaint filed before the Regional Trial Court is doubtless one incapable of pecuniary estimation and therefore within the jurisdiction of said court.

In Singsong vs. Isabela Sawmill, we had the occasion to rule that:

[I]n determining whether an action is one the subject matter of which is not capable of pecuniary estimation this Court has adopted the criterion of first ascertaining 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 municipal courts or in the courts of first instance 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, where the money claim is purely incidental to, or a consequence of, the principal relief sought, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance (now Regional Trial Courts).

Examples of actions incapable of pecuniary estimation are those for specific performance, support, or foreclosure of mortgage or annulment of judgment; also actions questioning the validity of a mortgage, annulling a deed of sale or conveyance and to recover the price paid and for rescession, which is a counterpart of specific performance.

While actions under Sec. 33(3) of B.P. 129 are also incapable of pecuniary estimation, the law specifically mandates that they are cognizable by the MTC, METC, or MCTC where the assessed value of the real property involved does exceed P20,000.00 in Metro Manila, or P50,000.00, if located elsewhere. If the value exceeds P20,000.00 or P50,000.00 as the case may be, it is the Regional Trial Courts which have jurisdiction under Sec. 19(2).

However, the subject matter of the complaint in this case is annulment of a document denominated as "DECLARATION OF HEIRS AND DEED OF CONFIRMATION OF PREVIOUS ORAL PARTITION."

The main purpose of petitioners in filing the complaint is to declare null and void the document in which private respondents declared themselves as the only heirs of the late spouses Casimero Tautho and Cesaria Tautho and divided his property among themselves to the exclusion of petitioners who also claim to be legal heirs and entitled to the property. While the complaint also prays for the partition of the property, this is just incidental to the main action, which is the declaration of nullity of the document above-described. It is axiomatic that jurisdiction over the subject matter of a case is conferred by law and is determined by the allegations in the complaint and the character of the relief sought, irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein.

ROXAS vs. HON. COURT OF APPEALS (Jurisdiction)

On the first issue, we hold that petitioner is already estopped from raising the issue of jurisdiction. What she raised in her position paper as a special and affirmative defense was the purported failure of the complaint to state a cause of action, arising from an alleged failure to exhaust administrative remedies before the HLURB as a condition precedent to filing a case in court. This is not an explicit attack on the court’s jurisdiction over the subject matter of the complaint, but merely a claim for the need to go through an alleged jurisdictional requirement, namely exhaustion of administrative remedies.

Granted that she placed MeTC’s jurisdiction at issue, on the supposition that it is the HLURB that has jurisdiction over Manotok’s complaint below, she abandoned her theory after she obtained a favorable judgment at the MeTC. She chose not to appeal the MeTC’s decision and instead consistently adopted in her pleadings before the RTC and CA, the MeTC’s ruling that the action is one for accion publiciana. Nowhere in her pleadings before the RTC and CA did she raise the argument that jurisdiction properly lies with the HLURB. As earlier mentioned, it was only in her present petition with this Court that she squarely asserted for the first time that the HLURB has exclusive jurisdiction over the instant case.

Indeed, the general rule is that a question of jurisdiction may be raised at any time, even on appeal, provided that doing so does not result in a mockery of the tenets of fair play. When, however, a party adopts a particular theory, and the case is tried and decided upon that theory in the court below, he will not be permitted to change his theory on appeal. Where the case was tried by the lower court and the parties on a certain theory, it will be reviewed and decided on that theory, insofar as the pleadings, liberally construed, permit, and not be approached from a different point of view.

Petitioner is bound by the theory behind her arguments before the RTC and CA that the case is properly an accion publiciana as the cause of action arises from the termination of possession by mere tolerance. Her assertion now that the issue involves the determination of whether or not the terms and conditions of the contract to sell have been violated by private respondent, which must be decided by the HLURB, constitutes a change of theory that could require presentation of further evidence. Given this premise, the Court cannot countenance petitioner’s act of adopting inconsistent postures by attacking the jurisdiction of the regular courts to which she has submitted, voluntarily. Estoppel bars her from doing so.

RADIO COMMUNICATIONS INC vs. COURT OF APPEALS (Jurisdiction)

In Russell, et al., v. Vestil, et al., the Court held that in determining whether an action is one the subject matter of which is not capable of pecuniary estimation, the nature of the principal action or remedy sought must first be ascertained. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction over the action will depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, the action is one where the subject of the litigation may not be estimated in terms of money, which is cognizable exclusively by Regional Trial Courts.

It is axiomatic that jurisdiction over the subject matter of a case is conferred by law and is determined by the allegations in the complaint and the character of the relief sought, irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein.

In the case at bar, the allegations in the complaint plainly show that private respondent’s cause of action is breach of contract.

Clearly, the action for specific performance case, irrespective of the amount of rentals and damages sought to be recovered, is incapable of pecuniary estimation, hence cognizable exclusively by the Regional Trial Court. The trial court, therefore, did not err in denying petitioner’s motion to dismiss.

CEROFERR vs. COURT OF APPEALS (Jurisdiction)

The rules of procedure require that the complaint must state a concise statement of the ultimate facts or the essential facts constituting the plaintiff’s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action inadequate. A complaint states a cause of action only when it has its three indispensable elements, namely: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of plaintiff or constituting a breach of the obligation of defendant to the plaintiff for which the latter may maintain an action for recovery of damages. If these elements are not extant, the complaint becomes vulnerable to a motion to dismiss on the ground of failure to state a cause of action.

Jurisdiction over the subject matter is conferred by law and is determined by the allegations of the complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein. The jurisdiction of a court over the subject matter is determined by the allegations of the complaint and cannot be made to depend upon the defenses set up in the answer or pleadings filed by the defendant.

While the lack of jurisdiction of a court may be raised at any stage of an action, nevertheless, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court’s jurisdiction because the judgment or the order subsequently rendered is adverse to him.

In this case, respondent Santiago may be considered estopped to question the jurisdiction of the trial court for he took an active part in the case. In his answer, respondent Santiago did not question the jurisdiction of the trial court to grant the reliefs prayed for in the complaint. His geodetic engineers were present in the first and second surveys that the LRA conducted. It was only when the second survey report showed results adverse to his case that he submitted a motion to dismiss.

Both parties in this case claim that the vacant lot is within their property. This is an issue that can be best resolved by the trial court in the exercise of its general jurisdiction.

After the land has been originally registered, the Court of Land Registration ceases to have jurisdiction over contests concerning the location of boundary lines. In such case, the action in personam has to be instituted before an ordinary court of general jurisdiction.

The regional trial court has jurisdiction to determine the precise identity and location of the vacant lot used as a jeepney terminal.

GONZAGA vs. HON. COURT OF APPEALS (Jurisdiction)

Petitioners claim that the recent decisions of this Court have already abandoned the doctrine laid down in Tijam vs. Sibonghanoy. We do not agree. In countless decisions, this Court has consistently held that, while an order or decision rendered without jurisdiction is a total nullity and may be assailed at any stage, active participation in the proceedings in the court which rendered the order or decision will bar such party from attacking its jurisdiction. As we held in the leading case of Tijam vs. Sibonghanoy:

“A party may be estopped or barred from raising a question in different ways and for different reasons. Thus we speak of estoppel in pais, or estoppel by deed or by record, and of estoppel by laches.

“It has been held that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate, or question that same jurisdiction x x x x [T]he question whether the court had jurisdiction either of the subject matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgment or order of the court is valid and conclusive as an adjudication, but for the reason that such a practice can not be tolerated –– obviously for reasons of public policy.”

Tijam has been reiterated in many succeeding cases. Thus, in Orosa vs. Court of Appeals; Ang Ping vs. Court of Appeals; Salva vs. Court of Appeals; National Steel Corporation vs. Court of Appeals; Province of Bulacan vs. Court of Appeals; PNOC Shipping and Transport Corporation vs. Court of Appeals, this Court affirmed the rule that a party’s active participation in all stages of the case before the trial court, which includes invoking the court’s authority to grant affirmative relief, effectively estop such party from later challenging that same court’s jurisdiction.

In the case at bar, it was petitioners themselves who invoked the jurisdiction of the court a quo by instituting an action for reformation of contract against private respondents. It appears that, in the proceedings before the trial court, petitioners vigorously asserted their cause from start to finish. Not even once did petitioners ever raise the issue of the court’s jurisdiction during the entire proceedings which lasted for two years. It was only after the trial court rendered its decision and issued a writ of execution against them in 1998 did petitioners first raise the issue of jurisdiction ─ and it was only because said decision was unfavorable to them. Petitioners thus effectively waived their right to question the court’s jurisdiction over the case they themselves filed.

Petitioners should bear the consequence of their act. They cannot be allowed to profit from their omission to the damage and prejudice of the private respondent. This Court frowns upon the undesirable practice of a party submitting his case for decision and then accepting the judgment but only if favorable, and attacking it for lack of jurisdiction if not.

Public policy dictates that this Court must strongly condemn any double-dealing by parties who are disposed to trifle with the courts by deliberately taking inconsistent positions, in utter disregard of the elementary principles of justice and good faith. There is no denying that, in this

case, petitioners never raised the issue of jurisdiction throughout the entire proceedings in the trial court. Instead, they voluntarily and willingly submitted themselves to the jurisdiction of said court. It is now too late in the day for them to repudiate the jurisdiction they were invoking all along.

MANILA BANKERS vs. NG KOK WEI (Jurisdiction)

We have consistently held that complaints for specific performance with damages by a lot or condominium unit buyer against the owner or developer falls under the exclusive jurisdiction of the HLURB.

While it may be true that the trial court is without jurisdiction over the case, petitioner’s active participation in the proceedings estopped it from assailing such lack of it. We have held that it is an undesirable practice of a party participating in the proceedings and submitting its case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse.

Here, petitioner failed to raise the question of jurisdiction before the trial court and the Appellate Court. In effect, petitioner confirmed and ratified the trial court’s jurisdiction over this case. Certainly, it is now in estoppel and can no longer question the trial court’s jurisdiction.

On petitioner’s claim that it did not incur delay, suffice it to say that this is a factual issue. Time and again, we have ruled that “the factual findings of the trial court are given weight when supported by substantial evidence and carries more weight when affirmed by the Court of Appeals.” Whether or not petitioner incurred delay and thus, liable to pay damages as a result thereof, are indeed factual questions.

The jurisdiction of this Court in a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, is limited to reviewing only errors of law, not of fact, unless the factual findings being assailed are not supported by evidence on record or the impugned judgment is based on a misapprehension of facts. These exceptions are not present here.

LOTTE PHIL. CO., INC. vs. DELA CRUZ (Rule 3)

An indispensable party is a party in interest without whom no final determination can be had of an action and who shall be joined either as plaintiffs or defendants. The joinder of indispensable parties is mandatory. The presence of indispensable parties is necessary to vest the court with jurisdiction, which is “the authority to hear and determine a cause, the right to act in a case”. Thus, without the presence of indispensable parties to a suit or proceeding, judgment of a court cannot attain real finality. The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

In Domingo v. Scheer, we held that the non-joinder of indispensable parties is not a ground for the dismissal of an action and the remedy is to implead the non-party claimed to be indispensable. Parties may be added by order of the court on motion of the party or on its own initiative at any stage of the action and/or such times as are just.  If the petitioner refuses to implead an indispensable party despite the order of the court, the latter may dismiss the complaint/petition for the petitioner/plaintiff’s failure to comply therefor.

Although 7J was a co-party in the case before the Labor Arbiter and the NLRC, respondents failed to include it in their petition for certiorari in the Court of Appeals.  Hence, the Court of Appeals did not acquire jurisdiction over 7J.  No final ruling on this matter can be had without impleading 7J, whose inclusion is necessary for the effective and complete resolution of the case and in order to accord all parties with due process and fair play.

DE LA CRUZ vs. JOAQUIN (Rule 3)

When a party to a pending action dies and the claim is not extinguished, the Rules of Court require a substitution of the deceased.  The procedure is specifically governed by Section 16 of Rule 3.

The rule on the substitution of parties was crafted to protect every party’s right to due process. The estate of the deceased party will continue to be properly represented in the suit through the duly appointed legal representative. Moreover, no adjudication can be made against the successor of the deceased if the fundamental right to a day in court is denied.

The Court has nullified not only trial proceedings conducted without the appearance of the legal representatives of the deceased, but also the resulting judgments. In those instances, the courts acquired no jurisdiction over the persons of the legal representatives or the heirs upon whom no judgment was binding.

This general rule notwithstanding, a formal substitution by heirs is not necessary when they themselves voluntarily appear, participate in the case, and present evidence in defense of the deceased. These actions negate any claim that the right to due process was violated.

The Court is not unaware of Chittick v. Court of Appeals, in which the failure of the heirs to substitute for the original plaintiff upon her death led to the nullification of the trial court’s Decision.  The latter had sought to recover support in arrears and her share in the conjugal partnership.  The children who allegedly substituted for her refused to continue the case against their father and vehemently objected to their inclusion as parties. [29] Moreover, because he died during the pendency of the case, they were bound to substitute for the defendant also.  The substitution effectively merged the persons of the plaintiff and the defendant and thus extinguished the obligation being sued upon.[30]

Strictly speaking, the rule on the substitution by heirs is not a matter of jurisdiction, but a requirement of due process.  Thus, when due process is not violated, as when the right of the representative or heir is recognized and protected, noncompliance or belated formal compliance with the Rules cannot affect the validity of a promulgated decision. Mere failure to substitute for a deceased plaintiff is not a sufficient ground to nullify a trial court’s decision.  The alleging party must prove that there was an undeniable violation of due process.

Evidently, the heirs of Pedro Joaquin voluntary appeared and participated in the case.  We stress that the appellate court had ordered his legal representatives to appear and substitute for him.  The substitution even on appeal had been ordered correctly.  In all proceedings, the legal representatives must appear to protect the interests of the deceased. After the rendition of judgment, further proceedings may be held, such as a motion for reconsideration or a new trial, an appeal, or an execution.[35]

Considering the foregoing circumstances, the Motion for Substitution may be deemed to have been granted; and the heirs, to have substituted for the deceased, Pedro Joaquin.  There being no violation of due process, the issue of substitution cannot be upheld as a ground to nullify the trial court’s Decision.

CHINA BANKING CORPORATION vs. OLIVER (Rule 3)

An indispensable party is a party in interest, without whom no final determination can be had of an action. It is true that mortgagor Oliver One is a party in interest, for she will be affected by the outcome of the case. She stands to be benefited in case the mortgage is declared valid, or injured in case her title is declared fake. However, mortgagor Oliver One’s absence from the case does not hamper the trial court in resolving the dispute between respondent Oliver Two and petitioner. A perusal of Oliver Two’s allegations in the complaint below shows that it was for annulment of mortgage due to petitioner’s negligence in not determining the actual ownership of the property, resulting in the mortgage’s annotation on TCT No. S-50195 in the Registry of Deeds’ custody. To support said allegations, respondent Oliver Two had to prove (1) that she is the real Mercedes M. Oliver referred to in the TCT, and (2) that she is not the same person using that name who entered into a deed of mortgage with the petitioner. This, respondent Oliver Two can do in her complaint without necessarily impleading the mortgagor Oliver One. Hence, Oliver One is not an indispensable party in the case filed by Oliver Two.

In Noceda vs. Court of Appeals, et al., 313 SCRA 504 (1999), we held that a party is not indispensable to the suit if his interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does complete justice to the parties in court. In this case, Chinabank has interest in the loan which, however, is distinct and divisible from the mortgagor’s interest, which involves the land used as collateral for the loan.

As to the second issue, since mortgagor Oliver One is not an indispensable party, Section 7, Rule 3 of the 1997 Rules of Civil Procedure, which requires compulsory joinder of indispensable parties in a case, does not apply. Instead, it is Section 11, Rule 3, that applies. Non-joinder of parties is not a ground for dismissal of an action. Parties may be added by order of the court, either on its own initiative or on motion of the parties. Hence, the Court of Appeals committed no error when it found no abuse of discretion on the part of the trial court for denying Chinabank’s motion to dismiss and, instead, suggested that petitioner file an appropriate action against mortgagor Oliver One. A person who is not a party to an action may be impleaded by the defendant either on the basis of liability to himself or on the ground of direct liability to the plaintiff.

RELUCIO vs LOPEZ (Rule 3)

A real party in interest is one who stands “to be benefited or injured by the judgment of the suit.” In this case, petitioner would not be affected by any judgment in Special Proceedings M-3630.

If petitioner is not a real party in interest, she cannot be an indispensable party. An indispensable party is one without whom there can be no final determination of an action. Petitioner’s

participation in Special Proceedings M-3630 is not indispensable. Certainly, the trial court can issue a judgment ordering Alberto J. Lopez to make an accounting of his conjugal partnership with respondent, and give support to respondent and their children, and dissolve Alberto J. Lopez’ conjugal partnership with respondent, and forfeit Alberto J. Lopez’ share in property co-owned by him and petitioner. Such judgment would be perfectly valid and enforceable against Alberto J. Lopez.

Nor can petitioner be a necessary party in Special Proceedings M-3630. A necessary party as one who is not indispensable but who ought to be joined as party if complete relief is to be accorded those already parties, or for a complete determination or settlement of the claim subject of the action. In the context of her petition in the lower court, respondent would be accorded complete relief if Alberto J. Lopez were ordered to account for his alleged conjugal partnership property with respondent, give support to respondent and her children, turn over his share in the co-ownership with petitioner and dissolve his conjugal partnership or absolute community property with respondent.

RIVIERA FILIPINA, INC vs. COURT OF APPEALS (Rule 3)

Notwithstanding the foregoing, Section 16 and 17 of Rule 3 of the Revised Rules of Court, upon which Riviera anchors its argument, has already been amended by the 1997 Rules of Civil Procedure Even applying the old Rules, the failure of a counsel to comply with his duty under Section 16 of Rule 3 of the Revised Rules of Court, to inform the court of the death of his client and no substitution of such is effected, will not invalidate the proceedings and the judgment thereon if the action survives the death of such party, as this case does, since the death of Reyes did not extinguish his civil personality. The appellate court was well within its jurisdiction to proceed as it did with the case since the death of a party is not subject to its judicial notice. Needless to stress, the purpose behind the rule on substitution of parties is the protection of the right of every party to due process. This purpose has been adequately met in this case since both parties argued their respective positions through their pleadings in the trial court and the appellate court. Besides, the Court has already acquired jurisdiction over the heirs of Reyes by voluntarily submitting themselves to our jurisdiction.

KATON vs. PALANCA (Rule 3)

Thus, when the plaintiff admits in the complaint that the disputed land will revert to the public domain even if the title is canceled or amended, the action is for reversion; and the proper party who may bring action is the government, to which the property will revert. A mere homestead applicant, not being the real party in interest, has no cause of action in a suit for reconveyance. As it is, vested rights over the land applied for under a homestead may be validly claimed only by the applicant, after approval by the director of the Land Management Bureau of the former’s final proof of homestead patent.

Consequently, the dismissal of the Complaint is proper not only because of lack of jurisdiction, but also because of the utter absence of a cause of action, a defense raised by respondents in their Answer. Section 2 of Rule 3 of the Rules of Court ordains that every action must be prosecuted or defended in the name of the real party in interest, who stands to be benefited or injured by the judgment in the suit. Indeed, one who has no right or interest to protect has no cause of action by which to invoke, as a party-plaintiff, the jurisdiction of the court.

Finally, assuming that petitioner is the proper party to bring the action for annulment of title or its reconveyance, the case should still be dismissed for being time-barred. It is not disputed that a homestead patent and an Original Certificate of Title was issued to Palanca on February 21, 1977, while the Complaint was filed only on October 6, 1998. Clearly, the suit was brought way past ten years from the date of the issuance of the Certificate, the prescriptive period for reconveyance of fraudulently registered real property.

ALDAY vs. FGU INSURANCE CORPORATION (Rule 6)

Before going into the substantive issues, the Court shall first dispose of some procedural matters raised by the parties. Petitioner claims that respondent is estopped from questioning her non-payment of docket fees because it did not raise this particular issue when it filed its first motion - the “Motion to Strike out Answer With Compulsory Counterclaim And To Declare Defendant In Default” – with the trial court; rather, it was only nine months after receiving petitioner’s answer that respondent assailed the trial court’s lack of jurisdiction over petitioner’s counterclaims based on the latter’s failure to pay docket fees. Petitioner’s position is unmeritorious. Estoppel by laches arises from the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned or declined to assert it. In the case at bar, respondent cannot be considered as estopped from assailing the trial court’s jurisdiction over petitioner’s counterclaim since this issue was raised by respondent with the trial court itself – the body where the action is pending - even before the presentation of any evidence by the parties and definitely, way before any judgment could be rendered by the trial

court.

The basic issue for resolution in this case is whether or not the counterclaim of petitioner is compulsory or permissive in nature. A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

In Valencia v. Court of Appeals, this Court capsulized the criteria or tests that may be used in determining whether a counterclaim is compulsory or permissive, summarized as follows:

1. Are the issues of fact and law raised by the claim and counterclaim largely the same?

2. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule?

3. Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?

4. Is there any logical relation between the claim and the counterclaim?

Another test, applied in the more recent case of Quintanilla v. Court of Appeals, is the “compelling test of compulsoriness” which requires “a logical relationship between the claim and counterclaim, that is, where conducting separate trials of the respective claims of the parties would entail a substantial duplication of effort and time by the parties and the court.”

Tested against the abovementioned standards, petitioner’s counterclaim for commissions, bonuses, and accumulated premium reserves is merely permissive. The evidence required to prove petitioner’s claims differs from that needed to establish respondent’s demands for the recovery of cash accountabilities from petitioner, such as cash advances and costs of premiums. The recovery of respondent’s claims is not contingent or dependent upon establishing petitioner’s counterclaim, such that conducting separate trials will not result in the substantial duplication of the time and effort of the court and the parties. One would search the records in vain for a logical connection between the parties’ claims. This conclusion is further reinforced by petitioner’s own admissions since she declared in her answer that respondent’s cause of action, unlike her own, was not based upon the Special Agent’s Contract. However, petitioner’s claims for damages, allegedly suffered as a result of the filing by respondent of its complaint, are compulsory.

There is no need for petitioner to pay docket fees for her compulsory counterclaim. On the other hand, in order for the trial court to acquire jurisdiction over her permissive counterclaim, petitioner is bound to pay the prescribed docket fees. The rule on the payment of filing fees has been laid down by the Court in the case of Sun Insurance Office, Ltd. v. Hon. Maximiano Asuncion-

The above mentioned ruling in Sun Insurance has been reiterated in the recent case of Suson v. Court of Appeals. In Suson, the Court explained that although the payment of the prescribed docket fees is a jurisdictional requirement, its non-payment does not result in the automatic dismissal of the case provided the docket fees are paid within the applicable prescriptive or reglementary period. Coming now to the case at bar, it has not been alleged by respondent and there is nothing in the records to show that petitioner has attempted to evade the payment of the proper docket fees for her permissive counterclaim. As a matter of fact, after respondent filed its motion to dismiss petitioner’s counterclaim based on her failure to pay docket fees, petitioner immediately filed a motion with the trial court, asking it to declare her counterclaim as compulsory in nature and therefore exempt from docket fees and, in addition, to declare that respondent was in default for its failure to answer her counterclaim. However, the trial court dismissed petitioner’s counterclaim. Pursuant to this Court’s ruling in Sun Insurance, the trial court should have instead given petitioner a reasonable time, but in no case beyond the applicable prescriptive or reglementary period, to pay the filing fees for her permissive counterclaim.

Petitioner asserts that the trial court should have declared respondent in default for having failed to answer her counterclaim. Insofar as the permissive counterclaim of petitioner is concerned, there is obviously no need to file an answer until petitioner has paid the prescribed docket fees for only then shall the court acquire jurisdiction over such claim. Meanwhile, the compulsory counterclaim of petitioner for damages based on the filing by respondent of an allegedly unfounded and malicious suit need not be answered since it is inseparable from the claims of respondent. If respondent were to answer the compulsory counterclaim of petitioner, it would merely result in the former pleading the same facts raised in its complaint.

DONATO vs CA (Rule 7)

The requirement regarding the need for a certification of non-forum shopping in cases filed before the CA and the corresponding sanction for non-compliance thereto are found in the then prevailing Revised Circular No. 28-91. It provides that the petitioner himself must make the

certification against forum shopping and a violation thereof shall be a cause for the summary dismissal of the multiple petition or complaint. The rationale for the rule of personal execution of the certification by the petitioner himself is that it is only the petitioner who has actual knowledge of whether or not he has initiated similar actions or proceedings in other courts or tribunals; even counsel of record may be unaware of such fact. The Court has ruled that with respect to the contents of the certification, the rule on substantial compliance may be availed of. This is so because the requirement of strict compliance with the rule regarding the certification of non-forum shopping simply underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded, but it does not thereby interdict substantial compliance with its provisions under justifiable circumstances.

We have stressed that the rules on forum shopping, which were precisely designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective which is simply to prohibit and penalize the evils of forum-shopping. The subsequent filing of the certification duly signed by the petitioner himself should thus be deemed substantial compliance, pro hac vice.

The Court’s pronouncement in Republic vs. Court of Appeals is worth echoing: “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. In that way, the ends of justice would be better served. Thus, what should guide judicial action is that a party litigant is given the fullest opportunity to establish the merits of his action or defense rather than for him to lose life, honor or property on mere technicalities. This guideline is especially true when the petitioner has satisfactorily explained the lapse and fulfilled the requirements in his motion for reconsideration, as in this case.

BENGUET EXPLORATION, INC vs. COURT OF APPEALS (Rule 8)

The admission of the due execution and genuineness of a document simply means that “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.” In another case, we held that “When the law makes use of the phrase ‘genuineness and due execution of the instrument’ it means nothing more than that the instrument is not spurious, counterfeit, or of different import on its face from the one executed.” Execution can only refer to the actual making and delivery, but it cannot involve other matters without enlarging its meaning beyond reason. The only object of the rule was to enable a plaintiff to make out a prima facie, not a conclusive case, and it cannot preclude a defendant from introducing any defense on the merits which does not contradict the execution of the instrument introduced in evidence.

REMINGTON INDUSTRIAL SALES CORPORATION vs. CA (Rule 10)

Section 2, Rule 10 of the Revised Rules of Court explicitly states that a pleading may be amended as a matter of right before a responsive pleading is served. This only means that prior to the filing of an answer, the plaintiff has the absolute right to amend the complaint whether a new cause of action or change in theory is introduced. The reason for this rule is implied in the subsequent Section 3 of Rule 10. Under this provision, substantial amendment of the complaint is not allowed without leave of court after an answer has been served, because any material change in the allegations contained in the complaint could prejudice the rights of the defendant who has already set up his defense in the answer.

Conversely, it cannot be said that the defendant’s rights have been violated by changes made in the complaint if he has yet to file an answer thereto. In such an event, the defendant has not presented any defense that can be altered or affected by the amendment of the complaint in accordance with Section 2 of Rule 10. The defendant still retains the unqualified opportunity to address the allegations against him by properly setting up his defense in the answer. Considerable leeway is thus given to the plaintiff to amend his complaint once, as a matter of right, prior to the filing of an answer by the defendant.

The right granted to the plaintiff under procedural law to amend the complaint before an answer has been served is not precluded by the filing of a motion to dismiss or any other proceeding contesting its sufficiency. Were we to conclude otherwise, the right to amend a pleading under Section 2, Rule 10 will be rendered nugatory and ineffectual, since all that a defendant has to do to foreclose this remedial right is to challenge the adequacy of the complaint before he files an answer.

Moreover, amendment of pleadings is favored and should be liberally allowed in the furtherance of justice in order to determine every case as far as possible on its merits without regard to technicalities. This principle is generally recognized to speed up trial and save party litigants from

incurring unnecessary expense, so that a full hearing on the merits of every case may be had and multiplicity of suits avoided.

The fact that the other defendant below has filed their answers to the complaint does not bar petitioner’s right to amend the complaint as against respondent. Indeed, where some but not all the defendants have answered, the plaintiff may still amend its complaint once, as a matter of right, in respect to claims asserted solely against the non-answering defendant, but not as to claims asserted against the other defendants.

Furthermore, we do not agree with respondent’s claim that it will be prejudiced by the admission of the Amended Complaint because it had spent time, money and effort to file its petition before the appellate court. We cannot see how the result could be any different for respondent, if petitioner merely re-filed the complaint instead of being allowed to amend it. As adverted to earlier, amendment would even work to respondent’s advantage since it will undoubtedly speed up the proceedings before the trial court. Consequently, the amendment should be allowed in the case at bar as a matter of right in accordance with the rules.

OAMINAL vs. CASTILLO (Rule 14)

In civil cases, the trial court acquires jurisdiction over the person of the defendant either by the service of summons or by the latter’s voluntary appearance and submission to the authority of the former. Where the action is in personam and the defendant is in the Philippines, the service of summons may be made through personal or substituted service in the manner provided for by Sections 6 and 7 of Rule 14 of the Revised Rules of Court.

Personal service of summons is preferred over substituted service. Resort to the latter is permitted when the summons cannot be promptly served on the defendant in person and after stringent formal and substantive requirements have been complied with.

For substituted service of summons to be valid, it is necessary to establish the following circumstances: (a) personal service of summons within a reasonable time was impossible; (b) efforts were exerted to locate the party; and (c) the summons was served upon a person of sufficient age and discretion residing at the party’s residence or upon a competent person in charge of the party’s office or regular place of business. It is likewise required that the pertinent facts proving these circumstances are stated in the proof of service or officer’s return.

Verily, respondents did not raise in their Motion to Dismiss the issue of jurisdiction over their persons; they raised only improper venue and litis pendentia. Hence, whatever defect there was in the manner of service should be deemed waived.

Assuming arguendo that the service of summons was defective, such flaw was cured and respondents are deemed to have submitted themselves to the jurisdiction of the trial court when they filed an Omnibus Motion to Admit the Motion to Dismiss and Answer with Counterclaim, an Answer with Counterclaim, a Motion to Inhibit, and a Motion for Reconsideration and Plea to Reset Pre-trial. The filing of Motions seeking affirmative relief -- to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration -- are considered voluntary submission to the jurisdiction of the court. Having invoked the trial court’s jurisdiction to secure affirmative relief, respondents cannot -- after failing to obtain the relief prayed for -- repudiate the very same authority they have invoked.

As much as possible, suits should be decided on the merits and not on technicalities. For this reason, courts have repeatedly been admonished against default orders and judgments that lay more emphasis on procedural niceties at the expense of substantial justice. Not being based upon the merits of the controversy, such issuances may indeed amount to a considerable injustice resulting in serious consequences on the part of the defendant. Thus, it is necessary to examine carefully the grounds upon which these orders and judgments are sought to be set aside.

E. B. VILLAROSA LTD vs. HON. HERMINIO I. BENITO (Rule 14)

Earlier cases have uphold service of summons upon a construction project manager; a corporation’s assistant manager; ordinary clerk of a corporation; private secretary of corporate executives; retained counsel; officials who had charge or control of the operations of the corporation, like the assistant general manager; or the corporation’s Chief Finance and Administrative Officer. In these cases, these persons were considered as “agent” within the contemplation of the old rule. Notably, under the new Rules, service of summons upon an agent of the corporation is no longer authorized.

The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states “general manager” instead of only “manager”; “corporate secretary” instead of “secretary”; and “treasurer” instead of “cashier.” The phrase

“agent, or any of its directors” is conspicuously deleted in the new rule.

The particular revision under Section 11 of Rule 14 was explained by retired Supreme Court Justice Florenz Regalado, thus:

“x x x the then Sec. 13 of this Rule allowed service upon a defendant corporation to ‘be made on the president, manager, secretary, cashier, agent or any of its directors.’ The aforesaid terms were obviously ambiguous and susceptible of broad and sometimes illogical interpretations, especially the word ‘agent’ of the corporation. The Filoil case, involving the litigation lawyer of the corporation who precisely appeared to challenge the validity of service of summons but whose very appearance for that purpose was seized upon to validate the defective service, is an illustration of the need for this revised section with limited scope and specific terminology. Thus the absurd result in the Filoil case necessitated the amendment permitting service only on the in-house counsel of the corporation who is in effect an employee of the corporation, as distinguished from an independent practitioner.” (underscoring supplied)

Retired Justice Oscar Herrera, who is also a consultant of the Rules of Court Revision Committee, stated that “(T)he rule must be strictly observed. Service must be made to one named in (the) statute x x x”.

It should be noted that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with the rules has been enjoined. In the case of Delta Motor Sales Corporation vs. Mangosing, the Court held:

“A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient. x x x.

The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, ‘to bring home to the corporation notice of the filing of the action.’ x x x.

The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. x x x.” (underscoring supplied).

Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been held as improper. Even under the old rule, service upon a general manager of a firm’s branch office has been held as improper as summons should have been served at the firm’s principal office. In First Integrated Bonding & Ins. Co., Inc. vs. Dizon, it was held that the service of summons on the general manager of the insurance firm’s Cebu branch was improper; default order could have been obviated had the summons been served at the firm’s principal office.

Accordingly, we rule that the service of summons upon the branch manager of petitioner at its branch office at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner.

The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon its person. There is no question that the defendant’s voluntary appearance in the action is equivalent to service of summons. Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a special appearance through a motion to dismiss and if in the same motion, the movant raised other grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the court. This doctrine has been abandoned in the case of La Naval Drug Corporation vs. Court of Appeals, et al., which became the basis of the adoption of a new provision in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules. Section 20 now provides that “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.” The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of the defendant can by no means be deemed a submission to the jurisdiction of the court. There being no proper service of summons, the trial court cannot take cognizance of a case for lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will consequently be null and void.

MILLENIUM INDUSTRIAL COMMERCIAL CORPORATION, vs. TAN (Rule 14)

Summons is the means by which the defendant in a case is notified of the existence of an action against him and, thereby, the court is conferred jurisdiction over the person of the defendant. If the defendant is corporation, Rule 14, §13 requires that service of summons be made upon the corporation’s president, manager, secretary, cashier, agent, or any of its directors. The rationale of the rule is that service must be made on a representative so integrated with the corporation sued as to make it a priori presumable that he will realize his responsibilities and know what he should do with any legal papers received by him.

Petitioner contends that the enumeration in Rule 14, §13 is exclusive and that service of summons upon one who is not enumerated therein is invalid. This is the general rule. However, it is settled that substantial compliance by serving summons on persons other than those mentioned in the above rule may be justified. In G & G Trading Corporation v. Court of Appeals, we ruled that although the service of summons was made on a person not enumerated in Rule 14, §13, if it appears that the summons and complaint were in fact received by the corporation, there is substantial compliance with the rule as its purpose has been attained.

In Porac Trucking, Inc. v. Court of Appeals, this Court enumerated the requisites for the application of the doctrine of substantial compliance, to wit: (a) there must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the Sheriff to the person served; (b) the person served must sign a receipt or the sheriff's return; and (c) there must be actual receipt of the summons by the corporation through the person on whom the summons was actually served. The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained.

In this case, there is no dispute that the first and second requisites were fulfilled. With respect to the third, the appellate court held that petitioner's filing of a motion to dismiss the foreclosure suit is proof that it received the copy of the summons and the complaint. There is, however, no direct proof of this or that Lynverd Cinches actually turned over the summons to any of the officers of the corporation. In contrast, in our cases applying the substantial compliance rule, there was direct evidence, such as the admission of the corporation's officers, of receipt of summons by the corporation through the person upon whom it was actually served. The question is whether it is allowable to merely infer actual receipt of summons by the corporation through the person on whom summons was served. We hold that it cannot be allowed. For there to be substantial compliance, actual receipt of summons by the corporation through the person served must be shown. Where a corporation only learns of the service of summons and the filing of the complaint against it through some person or means other than the person actually served, the service of summons becomes meaningless. This is particularly true in the present case where there is serious doubt if Lynverd Cinches, the person on whom service of summons was effected, is in fact an employee of the corporation. Except for the sheriff's return, there is nothing to show that Lynverd Cinches was really a draftsman employed by the corporation.

Our decision in La Naval Drug Corporation v. Court of Appeals settled this question. The rule prior to La Naval was that if a defendant, in a motion to dismiss, alleges grounds for dismissing the action other than lack of jurisdiction, he would be deemed to have submitted himself to the jurisdiction of the court. This rule no longer holds true. Noting that the doctrine of estoppel by jurisdiction must be unequivocal and intentional, we ruled in La Naval:

Jurisdiction over the person must be seasonably raised, i.e., that it is pleaded in a motion to dismiss or by way of an affirmative defense. Voluntary appearance shall be deemed a waiver of this defense. The assertion, however, of affirmative defenses shall not be construed as an estoppel or as a waiver of such defense.

Finally, we turn to the effect of petitioner's prayer for "other reliefs" in its Motion to Dismiss. In De Midgely v. Fernandos, it was held that, in a motion to dismiss, the allegation of grounds other than lack of jurisdiction over the person of the defendant, including a prayer "for such other reliefs as" may be deemed "appropriate and proper" amounted to voluntary appearance. This, however, must be deemed superseded by the ruling in La Naval that estoppel by jurisdiction must be unequivocal and intentional. It would be absurd to hold that petitioner unequivocally and intentionally submitted itself to the jurisdiction of the court by seeking other reliefs to which it might be entitled when the only relief that it can properly ask from the trial court is the dismissal of the complaint against it.

MASON vs. THE HONORABLE COURT OF APPEALS (Rule 14)

The question of whether the substantial compliance rule is still applicable under Section 11, Rule 14 of the 1997 Rules of Civil Procedure has been settled in Villarosa which applies squarely to the instant case. In the said case, petitioner E.B. Villarosa & Partner Co. Ltd. (hereafter Villarosa) with principal office address at 102 Juan Luna St., Davao City and with branches at 2492 Bay View Drive, Tambo, Parañaque, Metro Manila and Kolambog, Lapasan, Cagayan de Oro City, entered into a sale with development agreement with private respondent Imperial Development Corporation. As Villarosa failed to comply with its contractual obligation, private respondent initiated a suit for breach of contract and damages at the Regional Trial Court of Makati. Summons, together with the complaint, was served upon Villarosa through its branch manager at Kolambog, Lapasan, Cagayan de Oro City. Villarosa filed a Special Appearance with Motion to Dismiss on the ground of improper service of summons and lack of jurisdiction. The trial court denied the motion and ruled that there was substantial compliance with the rule, thus, it acquired jurisdiction over Villarosa. The latter questioned the denial before us in its petition for certiorari. We decided in Villarosa’s favor and declared the trial court without jurisdiction to take cognizance of the case. We held that there was no valid service of summons on Villarosa as service was made through a person not included in the enumeration in Section 11, Rule 14 of the 1997 Rules of Civil Procedure, which revised the Section 13, Rule 14 of the 1964 Rules of Court. We discarded the trial court’s basis for denying the motion to dismiss, namely, private respondent’s substantial compliance with the rule on service of summons, and fully agreed with petitioner’s assertions that the enumeration under the new rule is restricted, limited and exclusive, following the rule in statutory construction that expressio unios est exclusio alterius. Had the Rules of Court Revision Committee intended to liberalize the rule on service of summons, we said, it could have easily done so by clear and concise language. Absent a manifest intent to liberalize the rule, we stressed strict compliance with Section 11, Rule 14 of the 1997 Rules of Civil Procedure.

Neither can herein petitioners invoke our ruling in Millenium to support their position for said case is not on all fours with the instant case. We must stress that Millenium was decided when the 1964 Rules of Court were still in force and effect, unlike the instant case which falls under the new rule. Hence, the cases cited by petitioners where we upheld the doctrine of substantial compliance must be deemed overturned by Villarosa, which is the later case.

At this juncture, it is worth emphasizing that notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial matter in any administrative or judicial proceedings. The service of summons is a vital and indispensable ingredient of due process. We will deprive private respondent of its right to present its defense in this multi-million peso suit, if we disregard compliance with the rules on service of summons.

Since we have ruled that service of summons upon private respondent through its filing clerk cannot be considered valid, it necessarily follows therefore that the Regional Trial Court of Pasay City did not acquire jurisdiction over private respondent. Consequently, all the subsequent proceedings held before it, including the order of default, are null and void. As private respondent points out, the second issue has become moot and academic.

VALMONTE vs. THE HONORABLE COURT OF APPEALS (Rule 14)

In an action in personam, personal service of summons or, if this is not possible and he cannot be personally served, substituted service, as provided in Rule 14, § 7-8 is essential for the acquisition by the court of jurisdiction over the person of a defendant who does not voluntarily submit himself to the authority of the court. If defendant cannot be served with summons because he is temporarily abroad, but otherwise he is a Philippine resident, service of summons may, by leave of court, be made by publication. Otherwise stated, a resident defendant in an action in personam, who cannot be personally served with summons, may be summoned either by means of substituted service in accordance with Rule 14, § 8 or by publication as provided in § 17 and 18 of the same Rule.

In all of these cases, it should be noted, defendant must be a resident of the Philippines, otherwise an action in personam cannot be brought because jurisdiction over his person is essential to make a binding decision.

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 extraterritorially in accordance with Rule 14, § 17.

In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines or the property litigated or attached. Service of summons in the manner provided in § 17 is not for the purpose of vesting it with jurisdiction but for complying with the requirements of fair play or due process, so that he will be informed of the pendency of the action against him and the

possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of the plaintiff and he can thereby take steps to protect his interest if he is so minded.

Applying the foregoing rules to the case at bar, private respondent’s action, which is for partition and accounting under Rule 69, 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 petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of summons on her must be in accordance with Rule 14, § 17. Such service, to be effective outside the Philippines, must be made either (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; or (3) in any other manner which the court may deem sufficient.

Since in the case at bar, the service of summons upon petitioner Lourdes A. Valmonte was not done by means of any of the first two modes, the question is whether the service on her attorney, petitioner Alfredo D. Valmonte, can be justified under the third mode, namely, “in any . . . manner the court may deem sufficient.”

We hold it cannot. 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. Moreover, there are several reasons why the service of summons on Atty. Alfredo D. Valmonte cannot be considered a valid service of summons on petitioner Lourdes A. Valmonte. In the first place, service of summons on petitioner Alfredo D. Valmonte was not made upon the order of the court as required by Rule 14, § 17 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 petitioner Lourdes A. Valmonte in default for her failure to file an answer.

In the second place, service in the attempted manner on petitioner was not made upon prior leave of the trial court as required also in Rule 14, § 17. As provided in § 19, 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, and most importantly, because there was no order granting such leave, petitioner Lourdes A. Valmonte was not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days after notice. It must be noted that the period to file an Answer in an action against a resident defendant differs from the period given in an action filed against a nonresident defendant who is not found in the Philippines. In the former, the period is fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from notice.

Strict compliance with these requirements alone can assure observance of due process. That is why in one case, although the Court considered publication in the Philippines of the summons (against the contention that it should be made in the foreign state where defendant was residing) sufficient, nonetheless the service was considered insufficient because no copy of the summons was sent to the last known correct address in the Philippines.

In contrast, in the case at bar, petitioner Lourdes A. Valmonte did not appoint her husband as her attorney-in-fact. Although she wrote private respondent’ s attorney 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 her sister, respondent Rosita Dimalanta, 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 petitioner’s husband in these negotiations certainly cannot be construed as also including an authority to represent her in any litigation.

JOSE vs. BOYON (Rule 14)

In general, trial courts acquire jurisdiction over the person of the defendant by the service of summons. Where the action is in personam and the defendant is in the Philippines, such service may be done by personal or substituted service, following the procedures laid out in Sections 6 and 7 of Rule 14 of the Revised Rules of Court

Personal service of summons is preferred to substituted service. Only if the former cannot be made promptly can the process server resort to the latter. Moreover, the proof of service of summons must (a) indicate the impossibility of service of summons within a reasonable time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business, of the defendant. It is likewise required that the

pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective.

In the instant case, it appears that the process server hastily and capriciously resorted to substituted service of summons without actually exerting any genuine effort to locate respondents.

The Return of Summons shows that no effort was actually exerted and no positive step taken by either the process server or petitioners to locate and serve the summons personally on respondents. At best, the Return merely states the alleged whereabouts of respondents without indicating that such information was verified from a person who had knowledge thereof. Certainly, without specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.

It must be noted that extraterritorial service of summons or summons by publication applies only when the action is in rem or quasi in rem. The first is an action against the thing itself instead of against the defendant’s person; in the latter, an individual is named as defendant, and the purpose is to subject that individual’s interest in a piece of property to the obligation or loan burdening it.

In the instant case, what was filed before the trial court was an action for specific performance directed against respondents. While the suit incidentally involved a piece of land, the ownership or possession thereof was not put in issue, since they did not assert any interest or right over it. Moreover, this Court has consistently declared that an action for specific performance is an action in personam.

Having failed to serve the summons on respondents properly, the RTC did not validly acquire jurisdiction over their persons. Consequently, due process demands that all the proceedings conducted subsequent thereto should be deemed null and void.

RAMOS vs. RAMOS (Rule 14)

To be able to rule on this point, the Court needs to determine whether the action is in personam, in rem or quasi in rem. The rules on the service of summons differ depending on the nature of the action.

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that person’s interest in a property to a corresponding lien or obligation.

The Complaint filed by respondents with the RTC called for an interpleader to determine the ownership of the real property in question. Specifically, it forced persons claiming an interest in the land to settle the dispute among themselves as to which of them owned the property. Essentially, it sought to resolve the ownership of the land and was not directed against the personal liability of any particular person. It was therefore a real action, because it affected title to or possession of real property.

Clearly, petitioners were not the registered owners of the land, but represented merely an inchoate interest thereto as heirs of Paulino. They had no standing in court with respect to actions over a property of the estate, because the latter was represented by an executor or administrator. Thus, there was no need to implead them as defendants in the case, inasmuch as the estates of the deceased co-owners had already been made parties.

Furthermore, at the time the Complaint was filed, the 1964 Rules of Court were still in effect. Under the old Rules, specifically Section 3 of Rule 3, an executor or administrator may sue or be sued without joining the party for whose benefit the action is prosecuted or defended. The present rule, however, requires the joinder of the beneficiary or the party for whose benefit the action is brought. Under the former Rules, an executor or administrator is allowed to either sue or be sued alone in that capacity.

TEH vs. THE HONORABLE COURT OF APPEALS (Rule 16)

When the appellate court studied the petitioner’s motion for reconsideration and found that the contention therein was correct, it proceeded to look into the merits of the petition. However, it found that the same should be dismissed for lack of merit because it found that the trial court’s order assailed by the petitioner therein was an order denying a motion to dismiss. Based on the factual circumstances of the case, the appellate court ruled that the order sought to be reversed was an interlocutory order which is beyond the scope of a petition for certiorari, and that the trial court did not commit abuse of discretion when it denied the motion to dismiss on the ground of lack of jurisdiction over the person of the petitioner and ordered the issuance of an alias

summons to the latter.

The Court agrees with the appellate court’s ruling that there was no abuse of discretion on the part of the trial court when the latter denied the petitioner’s motion to dismiss the complaint and ordered the issuance of an alias summons to be served upon him. Although the respondent should have resorted to other means to determine the correct address of the petitioner when it was informed by the sheriff that he failed to serve the summons on the petitioner, the respondent is not entirely to blame for such failure because the petitioner’s address as indicated by Wood Based Panels, Inc., and Sinrimco, Inc. on their respective General Information Sheets, was incorrect.

Moreover, the trial court was merely exercising its discretion under Rule 16, Section 3 of the 1997 Rules of Civil Procedure when it denied the petitioner’s motion to dismiss. Under said rule, after hearing the motion, a judge may dismiss the action, deny the motion to dismiss or order the amendment of the pleading. The trial court denied the motion to dismiss based on its finding that the issues alleged by the respondent in its complaint could not be resolved fully in the absence of the petitioner. In its desire to resolve completely the issues brought before it, the trial court deemed it fitting to properly acquire jurisdiction over the person of the petitioner by ordering the issuance of alias summons on the petitioner. Evidently, the trial court acted well within its discretion. The Court of Appeals did not, therefore, err in dismissing the petition for certiorari filed before it.

JACINTO SAGUID vs. HON. COURT OF APPEALS (Rule 18)

Under Section 6, Rule 18 of the 1997 Rules of Civil Procedure, the failure of the defendant to file a pre-trial brief shall have the same effect as failure to appear at the pre-trial, i.e., the plaintiff may present his evidence ex parte and the court shall render judgment on the basis thereof. The remedy of the defendant is to file a motion for reconsideration showing that his failure to file a pre-trial brief was due to fraud, accident, mistake or excusable neglect. The motion need not really stress the fact that the defendant has a valid and meritorious defense because his answer which contains his defenses is already on record.

In the case at bar, petitioner insists that his failure to file a pre-trial brief is justified because he was not represented by counsel. This justification is not, however, sufficient to set aside the order directing private respondent to present evidence ex parte, inasmuch as the petitioner chose at his own risk not to be represented by counsel. Even without the assistance of a lawyer, petitioner was able to file a motion for extension to file answer, the required answer stating therein the special and affirmative defenses, and several other motions. If it were true that petitioner did not understand the import of the April 23, 1997 order directing him to file a pre-trial brief, he could have inquired from the court or filed a motion for extension of time to file the brief. Instead, he waited until May 26, 1997, or 14 days from his alleged receipt of the April 23, 1997 order before he filed a motion asking the court to excuse his failure to file a brief. Pre-trial rules are not to be belittled or dismissed because their non-observance may result in prejudice to a party’s substantive rights. Like all rules, they should be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed.

In the instant case, the fact that petitioner was not assisted by a lawyer is not a persuasive reason to relax the application of the rules. There is nothing in the Constitution which mandates that a party in a non-criminal proceeding be represented by counsel and that the absence of such representation amounts to a denial of due process. The assistance of lawyers, while desirable, is not indispensable. The legal profession is not engrafted in the due process clause such that without the participation of its members the safeguard is deemed ignored or violated.

However, the Court of Appeals erred in ruling that the effectivity of the 1997 Rules of Civil Procedure, specifically, Section 6, Rule 18 thereof, rendered moot and academic the issue of whether or not the plaintiff may be allowed to present evidence ex parte for failure of the defendant to file a pre-trial brief. While the rules may indeed be applied retroactively, the same is not called for in the case at bar. Even before the 1997 Rules of Civil Procedure took effect on July 1, 1997, the filing of a pre-trial brief was required under Circular No. 1-89 which became effective on February 1, 1989. Pursuant to the said circular, “[f]ailure to file pre-trial briefs may be given the same effect as the failure to appear at the pre-trial,” that is, the party may be declared non-suited or considered as in default.

PEOPLE OF THE PHILIPPINES vs. PEREZ y SEBUNGA (Rule 18)

The purpose of pre-trial is to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes lawful defenses; and (f) such matters as will promote a fair and expeditious trial of the criminal

and civil aspects of the case. Facts stipulated and evidence admitted during pre-trial bind the parties. Section 4, Rule 118 of the Revised Rules of Criminal Procedure provides:

“SEC. 4. Pre-trial order. - After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice.” (Emphasis supplied)

Moreover, Mayia herself testified in open court as to her age. During the trial on December 15, 1998, which was about twenty-three (23) months after the rape incident occurred on January 17, 1997, Mayia testified on cross-examination that she was “8 years old last May 23.” Thus, by deduction, since Mayia was born on May 23, 1990 as shown in her birth certificate, she was about six (6) years and seven (7) months old on January 17, 1997, the day the crime took place. We rule that the prosecution has indisputably proven that Mayia was below seven years old at the time appellant raped her.

PINLAC vs. COURT OF APPEALS (Rule 19)

The rule on intervention, like all other rules of procedure is intended to make the powers of the Court fully and completely available for justice. It is aimed to facilitate a comprehensive adjudication of rival claims overriding technicalities on the timeliness of the filing thereof. Indeed, in exceptional cases, the Court has allowed intervention notwithstanding the rendition of judgment by the trial court. In one case, intervention was allowed even when the petition for review of the assailed judgment was already submitted for decision in the Supreme Court.

Clearly, the intervention of the Republic is necessary to protect public interest as well as government properties located and projects undertaken on Lot No. 3. The Constitutional mandate that no person shall be deprived of life, liberty, or property without due process of law can certainly be invoked by the Republic which is an indispensable party to the case at bar. As correctly pointed out by the Solicitor General, while the provision is intended as a protection of individuals against arbitrary action of the State, it may also be invoked by the Republic to protect its properties.

YAO vs. HONORABLE NORMA C. PERELLO (Rule 19)

Consequently, petitioner’s claim that he had the right to intervene is without basis. Nothing in the said provision requires the inclusion of a private party as respondent in petitions for prohibition. On the other hand, to allow intervention, it must be shown that (a) the movant has a legal interest in the matter in litigation or otherwise qualified, and (b) consideration must be given as to whether the adjudication of the rights of the original parties may be delayed or prejudiced, or whether the intervenor’s rights may be protected in a separate proceeding or not. Both requirements must concur as the first is not more important than the second.

In the case at bar, it cannot be said that petitioner’s right as a judgment creditor was adversely affected by the lifting of the levy on the subject real property. Records reveal that there are other pieces of property exclusively owned by the defendants in the HLURB case that can be levied upon.

Moreover, even granting for the sake of argument that petitioner indeed had the right to intervene, he must exercise said right in accordance with the rules and within the period prescribed therefore.

As provided in the Rules of Court, the motion for intervention may be filed at any time before rendition of judgment by the trial court. Petitioner filed his motion only on April 25, 2002, way beyond the period set forth in the rules. The court resolution granting private respondent’s petition for prohibition and lifting the levy on the subject property was issued on March 22, 2002. By April 6, 2002, after the lapse of 15 days, the said resolution had already become final and executory.

PEOPLE OF THE PHILIPPINES vs. LI KA KIM (Rule 37)

The requisites of newly discovered evidence in order to justify a new trial are that:

(a) the evidence is discovered after trial;

(b) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and

(c) the evidence is material, not merely cumulative, corroborative, or impeaching, and of such weight that, if admitted, would likely change the judgment.

Not one of the requisites mentioned is attendant. Appellant’s passport could have easily been presented and produced during the trial. Then, too, the presentation of appellant’s passport would hardly be material to the outcome of the case. Appellant was positively identified by the prosecution witnesses as being the perpetrator of the crime. Most importantly, appellant even

identified himself as Li Ka Kim at the trial and not as Huang Xiao Wei that bolsters the conclusion that appellant deliberately concealed his true identity in the nefarious enterprise.

MERCURY DRUG CORPORATION vs. COURT OF APPEALS (Rule 38)

A petition for relief from judgment is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. In order for a petition for relief to be entertained by the court, the petitioner must satisfactorily show that he has faithfully and strictly complied with the provisions of Rule 38. It is also incumbent upon the petitioner to show that the said petition was filed within the reglementary period specified in Section 3, Rule 38 (within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken). And the rule is that the reglementary period is reckoned from the time the party’s counsel receives notice of the decision for notice to counsel of the decision is notice to the party for purposes of Section 3 of Rule 38.

In the present case, the YEES were served a copy of the judgment of the lower court through their counsel, Attorney Ralph Lou I. Willkom on March 3, 1995. Thus, the YEES are considered to have received notice on March 3, 1995 when their counsel was served notice and not on March 24, 1995 when they actually learned of the adverse decision. Consequently, their petition for relief, which was filed on May 15, 1995 or over sixty days from notice of their counsel, was filed out of time. This Court has consistently held that the failure of a party’s counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence, which is not excusable. However, notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.

We are not persuaded by the YEES’ claim that they were denied due process inasmuch as they were not denied their day in court. In fact, they were able to prosecute their action and actively participated through counsel in the proceedings before the lower court. Their failure to file an appeal from the decision rendering it final and executory is not a denial of due process. They may have lost their right to appeal but they were not denied their day in court. The right to appeal is not a natural right or a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. In the same manner, the YEES’ failure to file their petition for relief within the period provided for under the Rules is not tantamount to a denial of due process. More important, no evidence was presented to support respondents’ bare and self-serving allegation that their lawyer did not inform them of the decision against them. It bears stress that we are not concerning ourselves with the lawyer’s duty to his client but with the timeliness of the filing of the petition for relief which cannot be given due course on the simple and expedient claim of a party that their lawyer failed to inform them of the decision in the case. Relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost+- though inexcusable negligence.

MESINA vs MEER (Rule 38)

As correctly pointed out by the Court of Appeals, the petitioners’ allegation of extrinsic fraud should have been brought at issue in the Metropolitan Trial Court. If they truly believe that the default of the spouses Mesina prejudiced their rights, they should have questioned this from the beginning. Yet, they chose to participate in the proceedings and actively presented their defense. And their efforts were rewarded as the Metropolitan Trial Court ruled in their favor.

When the respondent appealed the case to the Regional Trial Court, they never raised this issue. Even after the Regional Trial Court reversed the finding of the MeTC, and the Court of Appeals sustained this reversal, petitioners made no effort to bring this issue for consideration. This Court will not allow petitioners, in guise of equity, to benefit from their own negligence.

The same is true with regard to the defenses forwarded by the petitioners in support of their petition. These contentions should have been raised in the MeTC, as they have been available to them since the beginning.

Finally, it is a settled rule that relief will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy at law was due to his own negligence, or a mistaken mode of procedure; otherwise, the petition for relief will be tantamount to reviving the

right of appeal which has already been lost either because of inexcusable negligence or due to mistaken mode of procedure by counsel.i[27] Petitioners, however, place the blame on their counsel and invoke honest mistake of law. They contend that they lack legal education, hence, were not aware of the required period for filing an appeal.ii[28]

In exceptional cases, when the mistake of counsel is so palpable that it amounts to gross negligence, this Court affords a party a second opportunity to vindicate his right. But this opportunity is unavailing in the instant case, especially since petitioners have squandered the various opportunities available to them at the different stages of this case. Public interest demands an end to every litigation and a belated effort to reopen a case that has already attained finality will serve no purpose other than to delay the administration of justice.

SERRANO vs. COURT OF APPEALS (Rule 38)

Generally, the execution upon a final judgment is a matter of right on the part of the prevailing party. It is the ministerial and mandatory duty of the trial court to enforce its own judgment once it becomes final and executory. It may happen, however, that new facts and circumstances may develop or occur after a judgment had been rendered and while an appeal therefrom is pending; or new matters had developed after the appeal has been dismissed and the appealed judgment had become final and executory, which the parties were not aware of and could not have been aware of prior to or during the trial or during the appeal, as they were not yet in existence at that time. In the first situation, any attempt to frustrate or put off the enforcement of an executory decision must fail. Once a judgment has become final and executory, the only remedy left for material attention thereof is that provided for in Rule 38 of the Rules of Court, as amended. There is no other prerequisite mode of thwarting the execution of the judgment on equitable grounds predicated on facts occurring before the finality of judgment. In the second situation, the execution may be stayed, notwithstanding the affirmance of the appealed judgment by this Court. It is required, however, that the supervening facts and circumstances must either have a direct effect upon the matter already litigated and settled or create a substantial change in the rights or relations of the parties therein which would render execution of a final judgment unjust, impossible or inequitable or when it becomes imperative in the interest of justice. The interested party may file a motion to quash a writ of execution issued by the trial court, or ask the court to modify or alter the judgment to harmonize the same with justice and further supervening facts. Evidence may be adduced by the parties on such supervening facts or circumstances.

BAÑEZ vs BAÑEZ (Rule 39)

In this case, considering the reasons cited by petitioner, we are of the view that there is no superior or urgent circumstance that outweighs the damage which respondent would suffer if he were ordered to vacate the house. We note that petitioner did not refute respondent’s allegations that she did not intend to use said house, and that she has two (2) other houses in the United States where she is a permanent resident, while he had none at all. Merely putting up a bond is not sufficient reason to justify her plea for execution pending appeal. To do so would make execution routinary, the rule rather than the exception.

Similarly, we are not persuaded that the P100,000 advance payment to petitioner’s counsel was properly granted. We see no justification to pre-empt the judgment by the Court of Appeals concerning said amount of P100,000 at the time that the trial court’s judgment was already on appeal.

CITY OF ILIGAN vs. PRINCIPAL MANAGEMENT GROUP, INC (Rule 39)

There are three requisites for the execution of a judgment pending appeal: a) a motion must be filed by the prevailing party with notice to the adverse party; b) there must be good reasons for execution pending appeal; and c) the good reasons must be stated in a special order.

Execution pending appeal is, of course, the exception to the general rule. Normally, execution cannot be obtained until and unless (a) the judgment has become final and executory; (b) the right of appeal has been renounced or waived; (c) the period for appeal has lapsed without an appeal having been filed; or (d) having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin -- in which case, execution shall issue as a matter of right.

On the other hand, when the period of appeal has not yet expired, the execution of a judgment should not be allowed except if, in the court’s discretion, there are good reasons therefor.

Since the execution of a judgment pending appeal is an exception to the general rule, the

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existence of “good reasons” is essential. These reasons must be stated in a special order, because unless these are divulged, it will be difficult to determine on appeal whether judicial discretion has been properly exercised by the lower court.

Good reasons consist of compelling circumstances that justify the immediate execution of a judgment, lest it become illusory; or the prevailing party be unable to enjoy it after the lapse of time, considering the tactics of the adverse party who may have no recourse but to delay.

In the present case, the good reason relied upon by both the trial and the appellate courts was that the partial adjudication of the case was based on petitioner’s own admission; hence, any appeal based on that point would be unmeritorious and merely dilatory. Indeed, both courts ruled that an appeal by petitioner would only serve as “a good and sufficient reason upon which to issue execution.”

VILLARUEL, JR vs. REYNALDO D. FERNANDO (Rule 39)

Furthermore, the resolution of the Ombudsman finding Abarca guilty of violating Section 7(d) of RA 6713 did not and could not supersede the decision of the trial court holding petitioner liable for damages. The action filed by the petitioner before the Ombudsman is completely different from the action instituted by respondents before the trial court. The two actions, which are clearly separate and distinct from each other, presented two different causes of action. Petitioner’s cause of action arose from respondents’ alleged violation of certain provisions of RA 6713 whereas respondents’ cause of action resulted from petitioner’s refusal to recall respondents to their mother unit at CATC. In the administrative case before the Ombudsman, the issue was whether respondents were guilty of violating RA 6713. In contrast, the issue in the civil action before the trial court was whether respondents were entitled to the issuance of the writ of mandamus and damages.

MORTA vs. BAGAGÑAN (Rule 39)

There is no mistaking the mandatory character of the period prescribed under Section 14 of Rule 39 of the Revised Rules of Court on the Return of a Writ of Execution, which reads:

“SEC. 14. Return of writ of execution. – The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties.”

A similar rule is stated in Administrative Circular No. 12 dated October 1, 1985, and incorporated in the Manual for Clerks of Court. According to this Circular, all sheriffs and deputy sheriffs shall submit to the judge concerned a report on actions taken on all writs and processes assigned to them within 10 days from receipt.

Per the records of this case, a Writ of Execution was issued on November 22, 1999 in Civil Case Nos. 481 and 482. Respondent Sheriff’s Return of Service of that Writ was filed only on May 25, 2000, however, or six months thereafter. There is nothing in the records showing that he submitted before then a periodic report on the actions he had taken on the Writ “every 30 days from the date of receipt” as required. On the contrary, the Report indicates that the Writ was partially executed on December 15-28, 1999 and January 11, 2000; and that the damages adjudged were partly paid in the amount of P3,500 plus one unit of Karaoke machine. But it was only on May 25, 2000, that this matter was reported to the trial court.

The excuse proffered by respondent sheriff -- heavy workload -- cannot absolve him from administrative sanctions. As an officer of the court, he should at all times show a high degree of professionalism in the performance of his duties. He has failed to observe that degree of dedication required of him as a sheriff. The charge of connivance is, however, dismissed for lack of basis.

SANTOS vs. COMMISSION ON ELECTIONS (Rule 39)

While it was indeed held that shortness of the remaining term of office and posting a bond are not good reasons, we clearly stated in Fermo v. COMELEC that:

A valid exercise of the discretion to allow execution pending appeal requires that it should be based “upon good reasons to be stated in a special order.” The following constitute “good reasons” and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining portion of the term of the contested office; and (3.) the length of time that the

election contest has been pending (italics supplied).

FAJARDO vs. QUITALIG (Rule 39)

We find respondent’s explanation to be utterly wanting. He is guilty of dereliction of his duty as a sheriff, because he failed to (1) execute the Writ within 30 days from his receipt thereof, (2) submit his Report of Service within the same period, (3) make periodic reports to the MTCC until the judgment was fully satisfied, and (4) furnish the parties with copies of the Reports.

By his own words, respondent admitted his dereliction of duty. First, as we have said earlier, he should have immediately executed the Writ when he served it upon the defendant on March 9, 2000. Second, he should have immediately reported to the MTCC that he was unable to enforce the Writ because another court had issued a TRO enjoining him from doing so. Third, he should have informed the parties, particularly the plaintiff or his counsel, about his inability to enforce the Writ. Fourth, he should have immediately enforced it twenty days after its issuance. Fifth, he should have made periodic Reports to the MTCC until the judgment was fully satisfied and the parties furnished a copy thereof. Sixth, within thirty days from his receipt of the Writ, he should have promptly made his Return, a copy of which he should have immediately furnished the parties. In several cases, the Court has said that the failure to make a return of a writ within the required period is nonfeasance.