Outline - ACTION

CIVIL PROCEDURE

CIVIL PROCEDURE
Lesson for July 26, 2014, Saturday

Action (or suit) - a formal demand of ones legal rights in a court of justice in the manner prescribed by the court or by the law
- Section 3, Rule 1
Special proceeding - a remedy by which a party seeks to establish status, a right, or a particular fact
- Section 3(c), Rule 1; Rules 72-109 (Settlement of estate of deceased persons; Escheat; Guardianship and custody
of children; Trustees; Adoption; Rescission and revocation of adoption; Hospitalization of insane persons; Habeas
corpus; Change of name; Voluntary dissolution of corporations; Judicial approval of voluntary recognition of minor
natural children; Constitution of family home; Declaration of absence and death; Cancellation or correction of entries
in the civil registry)
-

Lopez v. Filipinas Compania de Seguros, G.R. No. L-19613, April 30, 1966
Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951

Kinds of Actions:
A. Criminal actions - Section 3(b), Rule 1
B. Civil actions
1. Ordinary civil actions - Section 3(a), Rule 1
2. Special civil actions - Section 3(a), Rule 1; Rules 62-71 (Interpleader; Declaratory Relief; Review of
Judgments, etc. of Comelec & COA; Certiorari, Prohibition & Mandamus; Quo Warranto; Expropriation;
Foreclosure of Real Estate Mortgage; Partition; Forcible Entry & Unlawful Detainer; Contempt)
Civil actions versus special proceedings:
Hagans v. Wizlizemus, G.R. No. 16680, September 13, 1920
Real and Personal actions:
Real action - Section 1, Rule 4
Personal action - Section 2, Rule 4
Hernandez v. DBP, G.R. No. L-31095, June 18, 1976
Claridades v. Mercader, G.R. No. L-20341, May 14, 1966

Local and transitory actions:

Local action - Section 1, Rule 4
Transitory action - Section 2, Rule 4
De la Cruz v. El Seminario de la Archidiocesis de Manila, G.R. No. L-5402, January 28, 1911
Actions in rem, in personam and quasi in rem:
Action in rem Action in personam Action quasi in rem -

Paderanga v. Hon. Buissan, G.R. No. L-49475, September 28, 1993

Lopez v. The Director of Lands, G.R. No. L-22136, December 17, 1924
Domagas v. Jensen, G.R. No. 158407, January 17, 2005
Midgely v. Hon. Ferandos, G.R. No. L-34314, May 13, 1975
Rayray v. Chae Kyung Lee, G.R. No. L-18176, October 26, 1966

Independent Civil Action - an entirely separate and distinct civil action for damages, which shall proceed independently of the
criminal prosecution and shall be proved only by a preponderance of evidence
- Articles 32, 33, 34 & 2176, New Civil Code of the Philippines; Section 3, Rule 111, Rules of Criminal Procedure
Lim v. De Leon, G.R. No. L-22554, August 29, 1975
Carandang v. Hon. Santiago, G.R. No. L-8238, May 25, 1955

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LOPEZ vs FILIPINAS COMPAIA DE SEGUROS
G.R. No. L-19613, 30 April 1966
Facts:
The plaintiff-appellant applied with the defendantappellee company for the insurance of his property consisting of a
Biederman truck tractor and a Winter Weils trailer from loss or
damage.
In connection with the above application, the defendant
company inquired the plaintiff if the plaintiff-appellant has any
company in respect of the insurance of any car or vehicle (a)
declined, cancelled or refused to renew plaintiff-appellants
insurance? and (b) increased plaintiff-appellants premium on
renewal?
To both questions, the plaintiff answered: "none," though
the truth was at that time, the American International Underwriters
of the Philippines (AIU) had already declined a similar application for
insurance by the plaintiff in respect of the above-described vehicles.
Defendant issued to the plaintiff two Commercial Vehicle
Comprehensive Policies.
While the said policies were in force, the aforementioned
vehicles figured in an accident.
Plaintiff made demand from defendant payment of the
total amount of damages.
On April 28, 1960, defendant rejected the claim because of
claimant's alleged "concealment of a material fact the insured
property previously been declined insurance by another company.
The plaintiff-appellant filed on May 27, 1960 with the
Office of the Insurance Commissioner a complaint against the said
company.
Plaintiff-appellant informed by letter the Office of the
Insurance Commissioner that he was willing to submit his claim to
arbitration and suggested that the Assistant Insurance
Commissioner be designated as the sole arbitrator of the same. The
Insurance Commissioner informed the plaintiff-appellant of his
willingness to act as the single arbitrator, provided that both parties
to the dispute manifest in writing their conformity thereto and to
abide by the arbitrator's award. The defendant-appellee informed
the Insurance Commissioner that it could not consent to the above
proposal since "the claim of the plaintiff cannot be resolved by
arbitration, as recourse to arbitration referred to in the policy
contract, envisioned only differences or disputes, 'with respect to
the amount of the company's liability,' and not to cases where the
company does not admit its liability to the insured." With this
rejection, the plaintiff-appellant filed his complaint with the Court of
First Instance of Manila on September 19, 1961.
Defendant-appellee filed a motion to dismiss on the
ground of prescription. The latter argued that the plaintiff's claim
had already prescribed since it was not filed within twelve months
from its rejection by the insurance company as stipulated under
paragraph 9 of the General Conditions of Commercial Vehicle
Comprehensive Policy.
The Court of First Instance granted defendants motion
and dismissed the complaint. Thus, the instant appeal.

CIVIL PROCEDURE
Whether or not the complaint filed by the plaintiffappellant with the Office of the Insurance Commissioner on May 27,
1960 a commencement of an "action or suit". No! It should be
September 19, 1961, when the plaintiff-appellant filed his
complaint with the Court of First Instance.
Held:
Supreme Court found for the appellee.
Action is the act by which one sues another in a court of
justice for the enforcement or protection of a right, or the
prevention or redress of a wrong. Special proceeding is the act by
which one seeks to establish the status or right of a party, or a
particular fact. Hence, an action is distinguished from special
proceeding in that the former is a formal demand of a right by one
against another, while the latter is but a petition or a declaration of
a status, right or fact.
Rule 2, Section 1 of the Rules of Court: Section 1. Action
defined.Action means an ordinary suit in a Court of Justice by
which one party prosecutes another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
Suit is the prosecution or pursuit of some claim or demand
in a court of justice or any proceeding in a court of justice in which a
plaintiff pursues his remedy to recover a right or claim.
The terms "action" and "suit" are synonymous. It is clear
that the determinative or operative fact which converts a claim into
an "action or suit" is the filing of the same with a "court or justice."
Filed elsewhere, as with some other body or office not a court of
justice, the claim may not properly be categorized under either
term.
Appellant's recourse to the Office of the Insurance
Commissioner could not have been an "action or suit" which could
have halted the running of the prescriptive period stipulated in the
insurance policies involved. An "action or suit" is essentially "for the
enforcement or protection of a right, or the prevention or redress of
a wrong." (Rule 2, Sec. 1, Rules of Court). There is nothing in the
Insurance Law, Act No. 2427, as amended, nor in any of its allied
Legislations, which empowers the Insurance Commissioner to
adjudicate on disputes relating to an insurance company's liability to
an insured under a policy issued by the former to the latter.

TOLENTINO vs THE BOARD OF ACCOUNTANCY

G.R. No. L-3062, 28 September 1951
Facts:
This is an action for declaratory relief filed by plaintiff in
the Court of First Instance of Manila for the purpose of testing the
constitutionality of section 16-A of Commonwealth Act No. 3105,
otherwise known as the Philippine Accountancy Law, as amended by
Commonwealth Act No. 342. The ground advanced for the claim of
unconstitutionality is that "it is a class legislation since by its terms it
excludes persons engaged in other callings or professions from

Issue:
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adopting, acquiring or using a trade name in connection with the
practice of such callings or professions."
The action is addressed against the Board of Accountancy,
Robert Orr Ferguson, and Hans Hausamann and notice thereof has
been served on the Solicitor General.
Plaintiff is a Filipino citizen and a certified public
accountant duly admitted to the practice of accountancy. The Board
of Accountancy is an administrative body created by law and vested
with the power and authority to regulate and supervise the practice
of the profession of accountancy in the Philippines. Defendants
Robert Orr Ferguson (British) and Hans Hausamann (Swiss) are
foreigners admitted to the practice of accountancy in the Philippines
Complaint alleged that the two defendants have been and
are practicing their profession as certified public accountants under
the trade name "Fleming and Williamson"; and that Section 16-A of
Act No. 3105 as amended by Commonwealth Act No. 342,
authorizing accountants to practice their profession under a trade
name, is unconstitutional on the ground that it excludes persons
engaged in other callings and professions from adopting or acquiring
or using a trade name.
In their answer, the defendant Robert Orr Ferguson and
Hans Hausamann admitted the allegations of the complaint. Said
defendants allege that Commonwealth Act No. 342 amending Act
No. 3105, authorizing the use of a trade name in the practice of the
profession of accountancy is not a class legislation, nor does it
violate the provision of the Constitution with respect to equal
protection of the laws; that the plaintiff has no right or interest
adversely affected by said law and that he is entitled to the benefits
thereof and may use a trade or name firm name in the practice of
his profession as accountant.
The parties are agreed as to the material facts alleged in
the pleadings. They are also agreed that the firm name "Fleming and
WIlliamson" is an old trade name of accountants which was used
originally in 1952 by Messrs. D.M. Flemung and J. Williamson. The
right to use this firm name was sold to various parties until the end
it was acquired at the defendants in 1946. On June 10, 1946,
defendants Robert Orr Ferguson and Hans Hausamann formed a copartnership styled "Ferguson and Hausamann" doing business under
the trade name "Fleming and Williamson". The articles of copartnership were presented for registration in the Securities and
Exchange Commission. "Fleming and Williamson" was registered in
the Bureau of Commerce as the firm name of the partnership
"Ferguson and Hausamann," under which the said defendants would
practice their profession as certified public accountants in the
Philippines.
The partnership of "Ferguson and Hausamann" applied for
the renewal of the registration of "Fleming and Williamson" as their
trade name and was so registered.
The defendant Board of Accountancy did not appear or
answer notwithstanding service of summons upon it and upon the
Solicitor General. By agreement of the parties, the case was
submitted for decision upon the pleadings presented and the
memoranda filed by the parties.
The Court of First Instance dismissed the complaint.
Plaintiff appealed to the Supreme Court.

CIVIL PROCEDURE
Issue:
Whether or not the plaintiff has sufficient cause of action
to question the constitutionality of Commonwealth Act No. 342. No!
Held:
The authorities are unanimous that in order that an action for
declaratory relief may be entertained, it must be predicated on the
following requisite facts or conditions: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose
interests are adverse; (3) the party seeking declaratory relief must
have a legal interest in the controversy; and (4) the issue involved
must be ripe for judicial determination. These requisite facts are
wanting and, therefore, the complaint must fail for lack of sufficient
cause of action.
Justiciability; its requisites. Except that accomplished physical
wrong need not be alleged in a petition for declaratory relief, a case
of such nature must exhibit all the usual conditions of an ordinary
action. There must be (1) real parties in interest (2) asserting
adverse claims and (3) presenting a ripe issue. The Supreme Court of
Pennsylvania summarized its exhaustive opinion on the requisites of
justiciability of an action for declaratory relief by saying that the
court must be "satisfied that an actual controversy, or the ripening
seeds of one, exists between parties, all of whom are sui juris and
before the court, and that the declaration sought will be a practical
help in ending the controversy." Justice Brandeis thought that "the
fact that the plaintiff's desires are thwarted by its own doubts, or by
the fears of others does not confer a cause of action." But the doubt
becomes a justiciable controversy when it is translated into a claim
of right which is actually contested.
Granting for the sake of argument that plaintiff has established
the requisite facts to entitle him to claim for declaratory relief, we
are, however, of the opinion that Commonwealth Act No. 342 does
not offend against the equal protection clause of our Constitution on
the ground of class legislation, for the reason that said Act applies
alike to all persons pursuing the same calling or profession under the
same conditions or requirements.

Civil actions versus special proceedings:

HAGANS vs WISLIZENUS
G.R. No. 16680, 13 September 1920
Facts:
This is an original petition, presented in the Supreme
Court, for writ of certiorari. The facts alleged in the petition are
admitted by a demurrer.
The respondent judge, in support of his demurrer, argues
that the provision of Act No. 190 permit him to appoint assessors in
"special proceedings," The petitioner contends that no authority in
law exists for the appointment of assessors in such proceedings.
The only provisions of law which authorize the
appointment of assessors are the following; (a) Section 57-62 of Act
No. 190; (b) sections 153-161 of Act No. 190; (c) section 44 (a) of Act

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No. 267; (d) section 2477 of Act No. 2711; and (e) section 2 of Act
No. 2369.
Said section 44 (a) of Act No. 267 and section 2477 of Act
No. 2711 apply to the city of Manila only. Act No. 2369 provides for
the appointment of assessors in criminal cases only. Sections 57-62
of Act No. 190 provide for the appointment of assessors in the court
of justice of the peace. Therefore, the only provisions of law which
could, by any possibility, permit the appointment of assessors in
"special proceedings" are sections 153-161 of Act No. 190.
Section 154 provides that "either party to an action may
apply in writing to the judge for assessors to sit in the trial. Upon the
filing of such application, the judge shall direct that assessors be
provided, . . . ."
Issue:
Whether or not a judge of the Court of First Instance, in
special proceedings, is authorized under the law to appoint
assessors for the purpose of fixing the amount due to an
administrator or executor for his services and expenses in the care,
management, and settlement of the estate of a deceased person.
No!
Whether a special proceeding, like in the present case,
an action.
Held:
Section 1 of Act No. 190 gives us an interpretation of the
words used in said Act, that a distinction is made between an
"action" and a "special proceeding." Said section 1 provides that an
"action" means an ordinary suit in a court of justice, while "every
other remedy furnished by law is a 'special proceeding."
There is a distinction between an "action" and a "special
proceeding," and that when the Legislature used the word "action"
it did not mean "special proceeding."
An action is a formal demand of one's legal rights in a
court of justice in the manner prescribed by the court or by the law.
It is the method of applying legal remedies according to definite
established rules. (People vs. County Judge, 13 How. Pr. [N. Y.], 398.)
The term "special proceeding" may be defined as an application or
proceeding to establish the status or right of a party, or a particular
fact. (Porter vs. Purdy, 29 N. Y., 106, 110; Chapin vs. Thompson, 20
Cal., 681.) Usually, in special proceedings, no formal pleadings are
required, unless the statute expressly so provides. The remedy in
special proceedings is generally granted upon an application or
motion. Illustrations of special proceedings, in contradistinction to
actions, may be given: Proceedings for the appointment of an
administrator, guardians, tutors; contest of wills; to perpetuate
testimony; to change the name of persons; application for admission
to the bar, etc., etc. (Bliss on Code Pleading, 3d ed., sec. 1.)
The judge of the Court of First Instance is without
authority to appoint assessors. Therefore, the demurrer is hereby
overruled and the prayer of the petition is hereby granted, and it is
hereby ordered and decreed that the order of the respondent judge
appointing the assessors described in the petition be and the same
is hereby annulled and set aside; and, without any finding as to
costs,
it
is
so
ordered.

CIVIL PROCEDURE
Real and Personal actions:
HERNANDEZ vs DEVELOPMENT BANK OF THE PHILIPPINES
G.R. No. L-31095, 18 June 1976
Facts:
This is a case which involves the question of proper venue
in a real action.
Petitioner Jose M. Hernandez was an employee of private
respondent Development Bank of the Philippines in its Legal
Department for twenty-one (21) years until his retirement due to
illness. In due recognition of his unqualified service as Assistant
Attorney in its Legal Department, the private respondent awarded
to the petitioner a lot in the private respondent's Housing Project at
No. 1 West Avenue, Quezon City. After the petitioner received from
the private respondent's Housing Project Committee a statement of
account of the purchase price of the said lot and house. He sent to
the said Committee a Cashier's Check issued by the Philippine
Banking Corporation in the name of his wife to cover the cash and
full payment of the purchase price of the lot and house awarded to
him. However, more than a week thereafter, the Chief Accountant
and Comptroller of the private respondent returned to the
petitioner the aforementioned check, informing him that the private
respondent, through its Committee on Organization, Personnel and
Facilities, had cancelled the award of the lot and house previously
awarded to him on the following grounds: (1) that he has already
retired; (2) that he has only an option to purchase said house and
lot; (3) that there are a big number of employees who have no
houses or lots; (4) that he has been given his retirement gratuity;
and (5) that the awarding of the aforementioned house and lot to an
employee of the private respondent would better subserve the
objective of its Housing Project. Petitioner protested against the
cancellation of the award and demanded from private respondent
the restoration of all his rights to said award. Private respondent
refused.
Petitioner filed a complaint in the Court of First Instance of
Batangas against the private respondent seeking the annulment of
the cancellation of the award of the lot and house in his favor and
the restoration of all his rights thereto. He contends that the
cancellation of said award was unwarranted and illegal for he has
already become the owner of said house and lot by virtue of said
award and has acquired a vested right thereto, which cannot be
unilaterally cancelled without his consent; that he had requested the
private respondent to restore to him all his rights to said award but
the latter refused and failed and still refuses and fails to comply with
said request.
Private respondent filed a motion to dismiss the complaint
on the ground of improper venue, contending that since the
petitioner's action affects the title to a house and lot situated in
Quezon City, the same should have been commenced in the Court of
First Instance of Quezon City where the real property is located and
not in the Court of First Instance of Batangas where petitioner
resides. Respondent Court sustained the motion to dismiss filed by
private respondent on the ground of improper venue.
Hence, the instant petition to review the order of
respondent Court.

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Issue:
Whether the action of the petitioner was properly filed in
the Court of First Instance of Batangas. No! It is not a real action but
a personal action which may be properly brought by petitioner in
his residence.

Held:
It is a well settled rule that venue of actions or, more
appropriately, the county where the action is triable depends to a
great extent on the nature of the action to be filed, whether it is real
or personal. A real action is one brought for the specific recovery of
land, tenements, or hereditaments. A personal action is one brought
for the recovery of personal property, for the enforcement of some
contract or recovery of damages for its breach, or for the recovery of
damages for the commission of an injury to the person or property.
Under Section 2, Rule 4 of the Rules of Court, "actions affecting title
to, or for recovery of possession, or for partition, or condemnation
of, or foreclosure of mortgage in real property, shall be commenced
and tried where the defendant or any of the defendants resides or
may be found, or where the plaintiff or any of the plaintiffs resides,
at the election of the plaintiff".
A close scrutiny of the essence of the petitioner's
complaint in the court a quo would readily show that he seeks the
annulment of the cancellation of the award of the Quezon City lot
and house in his favor originally given him by respondent DBP in
recognition of his twenty-one years of service in its Legal
Department, in pursuance of his contention that he had acquired a
vested right to the award which cannot be unilaterally cancelled by
respondent without his consent.
The Court agrees that petitioner's action is not a real but a
personal action. As correctly insisted by petitioner, his action is one
to declare null and void the cancellation of the lot and house in his
favor which does not involve title and ownership over said
properties but seeks to compel respondent to recognize that the
award is a valid and subsisting one which it cannot arbitrarily and
unilaterally cancel and accordingly to accept the proffered payment
in full which it had rejected and returned to petitioner.
Such an action is a personal action which may be properly
brought by petitioner in his residence.

CIVIL PROCEDURE
accounting of the operation of the partnership, particularly a
fishpond located in Sta. Cruz, Marinduque, which was the main asset
of the partnership.
In their answer the defendants admitted the existence of
the partnership and alleged that its operation had been so far
unproductive. By way of special defense, they alleged, also, that
there is an impending auction sale of said fishpond due to
delinquency in the payment of taxes owing to lack of funds and
plaintiff's failure to contribute what is due from him. Defendants,
likewise, set up a counter-claim for damages.
Guillermo Reyes was allowed to intervene for the purpose
of recovering a sum of money allegedly due him for services
rendered as foreman of said fishpond, plus damages. Later, one
Armando Asuncion succeeded in intervening as the alleged assignee
of the interest of defendant. Mercader in said partnership and
fishpond. Thereafter, on plaintiff's motion, the lower court
appointed a receiver of the fishpond. Upon the other hand, Alfredo
Zulueta and his wife Yap Leding sought permission to intervene, still
later, alleging that they are the owners of said fishpond, having
bought one-half () of it from Benito Regencia, who, in turn, had
acquired it from Asuncion, who had purchased the fishpond from
defendant Mercader, and the other half having been assigned to
him directly by Asuncion.
Permission was granted which gave the Zuluetas ten (10)
days within which to file such pleading as they may deem necessary
for the protection of their rights. The Zuluetas filed a motion to
dismiss upon the ground that the complaint states no cause of
action; that venue has been improperly laid; and that plaintiff
complaint is moot and academic. The lower court granted the same
upon the ground of improper venue. A reconsideration of this order
having been denied, plaintiff and intervenor Reyes have interposed
the present appeal.
Issue:
Whether or not this action should have been instituted,
not in the Court of First Instance of Bulacan, but in that of
Marinduque, where the aforementioned fishpond is located. No! It
is a personal action which may be brought in the place of residence
of either the plaintiff or the defendants.
Held:

Real and Personal actions

CLARIDADES vs MERCADER
G.R. No. L-20341, 14 May 1966
Facts:
Appeal from an order of dismissal of the Court of First
Instance of Bulacan based upon the ground that venue had been
improperly laid.
Petitioner, Dr. Simeon S. Claridades brought this action
against Vicente C. Mercader and Perfecto Fernandez for the
dissolution of a partnership allegedly existing between them and an

Plaintiff's complaint merely seeks the liquidation of his

partnership with defendants Fernandez and Mercader. This is
obviously a personal action, which may be brought in the place of
residence of either the plaintiff or the defendants. Since plaintiff is a
resident of Bulacan, he had the right to bring the action in the court
of first instance of that province. What is more, although defendants
Fernandez and Mercader reside in Marinduque, they did not object
to the venue. In other words, they waived whatever rights they had,
if any, to question it.
The fact that plaintiff prays for the sale of the assets of the
partnership, including the fishpond in question, did not change the
nature or character of action, such sale being merely a necessary
incident of the liquidation of the partnership, which should precede
and/or is part of its process of dissolution. Neither plaintiff's
complaint nor the answer filed by defendants Fernandez and
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Mercader questioned the title to said property or the possession
thereof.
Again, the situation was not changed materially by the
Intervention either of Asuncion or of the Zuluetas, for, as alleged
successors to the interest Mercader in the fishpond, they, at best,
stepped into his shoes. Again, the nature of an action is determined
by the allegations of the complaint. At any rate, since the venue was
properly laid when the complaint was filed, said venue cannot,
subsequently, become improper in consequence of issues later
raised by any of the intervenors. The court having legally acquired
authority to hear and decide the case, it can not be divested of that
authority by said intervenors. "An intervention cannot alter the
nature of the action and the issues joined by the original parties
thereto."

CIVIL PROCEDURE
No appeal was taken and the judgment becoming final was
executed in such a manner that the above-mentioned chapel was
completely destroyed.
Cayetano de la Cruz commenced this action in the Court of
First Instance of the city of Manila against the appellants to recover
the sum of P2,000 as damages for a breach of the rental contract.
To this complaint the appellants, through their attorneys,
presented a demurrer, based upon the following grounds: (1) That
the Court of First Instance of the city of Manila was without
jurisdiction to try and determine this action for the reason that
damages for injuries caused to real property situated in the Province
of Bataan is sought to be recovered; and (2) the complaint fails to
allege facts sufficient to constitute a cause of action. This demurrer
was overruled, the appellants duly noting their exception.
The court rendered judgment in favor of the appellees and
against the appellants. The appellants after noting their exception to
the judgment and making a motion for a new trial, which motion
was overruled and exception thereto noted, appealed to this court.
Issue:

Local and transitory actions:

Local action - Section 1, Rule 4
Transitory action - Section 2, Rule 4
DE LA CRUZ vs EL SEMINARIO DE LA ARCHIDIOCESIS DE MANILA
G.R. No. L-5402, January 28, 1911
Facts:
The appellee, Cayetano de la Cruz, was a member and the
president of a Methodist Episcopal religious association at
Dinalupijan, Province of Bataan. Cayetano de la Cruz, as such
member and president, was then authorized by the association to
lease a certain building site and to use the funds contributed for the
purpose of constructing a chapel.
He leased from one J. C. Miller, the agent of the appellant,
for a period of two years, a certain lot or parcel of land, being a part
of that hacienda and which is fully described in the written contract
of lease, agreeing to pay as rental P2 per year, the first year's rent to
be paid in advance.
On the execution of this lease Cayetano de la Cruz, as
member and president of the Methodist Episcopal association, was
placed in possession of this lot or building site and proceeded to
construct thereon a chapel for the use of the said religious
association.
About the time this chapel was completed an action of
forcible entry and detainer was commenced by one Raymundo
Sinsuangco in the justice of the peace court of Dinalupijan, in which
Cayetano de la Cruz, as lessee of the lot upon which the chapel was
constructed, and J. C. Miller, as agent and representative of the
appellants, who, in such capacity executed said lease, as lessor, were
made defendants.
Judgment was rendered against the defendants in the
action. The appellants in the case at bar were duly notified of the
judgment of the justice of the peace and were requested to appeal
to the Court of First Instance.

Whether or not action is one for damages to real estate

situated in the Province of Bataan, under the provisions of section
377 of the Code of Civil Procedure the Court of First Instance of the
city of Manila had no jurisdiction.
Held:
No. The demurrer was properly overruled. This is not an
action to recover damages to real estate; it is an action for breach of
covenant in a lease. The fact that the damages to real estate are
involved, as an incident to the breach of the contract, does not
change the character of the action. Such an action is personal and
transistory.
The rule is well stated in the case of Neil vs. Owen (3 Tex.,
145), wherein the court said (p. 146): If the action is founded on
privity of contract between the parties, then the action whether
debt or covenant, is transitory. But if there is no privity of contract
and the action is founded on privity of estate only, such a covenant
that runs with the land in the hands of the remote grantees, then
the action is local and must be brought in the country wherein the
land lies.
In an action on a covenant contained in a lease, whether
begun by the lessor against the lessee, or by the lessee against the
lessor, the action is transitory because it is founded on a mere
privity of contract. (Thursby vs. Plant, cited in vol. 5, Ency. Plead. &
Prac., p. 362.)
In general, also, actions which are founded upon contracts
are transitory. In an action upon a lease for nonpayment of rent or
other breach of covenants, when the action is founded on the privity
of contract it is transitory and the venue may laid in any county. (22
Ency. Plead. & Prac., pp. 782-783.)
Therefore, section 377 of the Code of Civil Procedure,
which provides, among other things, that actions to recover
damages for injuries to real estate shall be brought in the province
where the land, or a part thereof, is situated, is not applicable.
(Molina vs. De la Riva, 6 Phil. Rep., 12.) The amended complaint

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CIVIL PROCEDURE

clearly states facts sufficient to constitute a cause of action. (Sec. 90,

Code of Civil Procedure.)

Actions in rem, in personam and quasi in rem:

Action in rem Action in personam Action quasi in rem
PADERANGA vs HON. BUISSAN
G.R. No. L-49475, September 28, 1993
Facts:
Petitioner PADERANGA and private respondent ELUMBA
entered into an oral contract of lease for an indefinite period
(P150.00 per month) of a commercial space in Ozamiz City.
P subdivided the leased premises into two (2) by
constructing a partition wall in between. He then took possession of
the other half, allegedly with Jose Elumbras consent.
CFI of Zamboanga del Norte based in Dipolog City. R
instituted an action for damages and prayed for the fixing of the
period of lease at five (5) years. P moved for its dismissal, action was
a real action, jurisdiction is with the Court of First Instance of
Misamis Occidental stationed in Ozamiz City where the property in
question was situated.
Motion to Dismiss DENIED (case merely involved the
enforcement of the contract of lease, and while affecting a portion
of real property, there was no question of ownership raised hence,
venue was properly laid.
P filed MOR but was also Denied. SC - P filed petition for
prohibition. PADERANGA - inasmuch as ELUMBA seeks to recover
possession of the portion surrendered to P, being a real action,
venue is laid in the court having jurisdiction over the territory in
which the property lies. ELUMBA - present action is chiefly for
damages arising from an alleged breach in the lease contract; hence,
the issue of recovery of possession is merely incidental.
Issue:
Whether or not CFI of Zamboanga del Norte based in
Dipolog City has jurisdiction over the case
Held:
No. While it may be that the instant complaint does not
explicitly pray for recovery of possession, such is the necessary
consequence thereof. The instant action therefore does not operate
to efface the fundamental and prime objective of the nature of the
case which is to recover the one-half portion repossessed by the
lessor, herein petitioner. Indeed, where the ultimate purpose of an
action involves title to or seeks recovery of possession, partition or
condemnation of, or foreclosure of mortgage on, real property, such
an action must be deemed a real action and must perforce be
commenced and tried in the province where the property or any
part thereof lies (Ozamiz City). Petition for Prohibition is GRANTED.

Actions in rem, in personam and quasi in rem:

Action in rem Action in personam Action quasi in rem
LOPEZ vs THE DIRECTOR OF LANDS
G.R. No. L-22136, December 17, 1924
Facts:
One of two parcels of land belonging to Rufo de Jesus was
sold by the city assessor and collector at public auction for the
payment of taxes due thereon to the petitioner Ramon Lopez, as the
highest bidder. Rufo de Jesus, having failed to redeem said one
parcel of land within one year from the date of the sale, the sale
became absolute and the city assessor and executed in favor of
Ramon Lopez, as purchaser of said one lot, a deed conveying to him
the title thereto, free from all liens of any kind whatsoever and
requested for the issuance of a new title but was denied, because
the petitioner did not present the duplicate certificate of said title
No. 2458; second, because on said title there appeared a notation of
a mortgage executed by said Rufo de Jesus in favor of the
Government of the Philippine Islands, represented by the Director of
Lands, to secure a debt of P1,190, which still remained unpaid;
and, third, because in the absence of an order of the Court of First
Instance to that effect, he could not issue a new certificate of title
for said lot, free from the encumbrance of said mortgage.
It is contended by the petitioner that in accordance with
the provisions of section 2500 of the Administrative Code, he was
entitled to a new certificate of title covering said parcel of land sold
for taxes, and that said new certificate should be issued free from all
incumbrances whatsoever; that the Government of the Philippine
Islands or its representative, the Director of Lands, could not claim
any lien over said parcel of land so sold for taxes under the
provisions of section 2497 of the Administrative Code.
This action was commenced in the Court of First Instance
of the City of Manila. Upon the issue thus presented, the court a
quo on the 18th day of January, 1924, issued an order directing the
Director of Lands to deliver to the registrar of deeds of the City of
Manila within five days the duplicate certificate of title No. 2458,
and ordered the said registrar of deeds to cancel the same and to
issue a new certificate of title to said parcel of land in favor of
Ramon Lopez, without nothing thereon the existence of said
mortgage in favor of the Director of Lands, and to issue a new
certificate to the other parcel of land to Rufo de Jesus and to note
on said new certificate the existence of said mortgage.
Attorney-General appeared on behalf of the Director of
Lands and prayed for a reconsideration of the decision. Said motion
was based upon the ground that the petitioner, Ramon Lopez, was
not entitled to have a new certificate of title issued to him, free from
all liens whatsoever upon said second parcel of land mortgaged by
Rufo de Jesus to the Director of Lands, for the reason that he had
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acquired said property at public sale and that he could by no means
have a better title than the owner of the land at the time of said
sale.
After a consideration of the motion of the AttorneyGeneral and the opposition thereto, the Honorable C.A. Imperial
denied the same. The Attorney-General, after duly excepting to the
judgment and order denying the motion for rehearing, appealed and
made several assignments of error. The Attorney-General, in his first
assignment of error, contends that "the lower court erred in not
holding that the tax proceeding under which Ramon Lopez claims an
indefeasible title is a proceeding in personam and not in rem."
Issue:
Whether or not the proceeding for the collection of taxes
upon real estate is an action in personam.
Held:
Yes. The court ruled that the proceedings here were in
personam and not in rem.
An action in rem may be defined as an action or
proceeding instituted against a thing and not against a particular
person. (In re Storey's Will, 20 III. App., 183, 190.)
Chief Justice Marshall, in discussing an action in rem, said:
"I have always understood that where a process is to be served on
the thing itself, by the service of a process and making proclamation,
the court is authorized to decide upon it (the thing) without notice
to any individual defendant, to which all the world are parties. The
claimant is a party, whether he speaks or is silent, whether he
asserts his claim or abandons it." Decisions in such cases are binding
and conclusive, not only on the parties litigating, but on all others.
Every one who can possibly be affected by the decision has a right to
appear and assert his own rights by becoming an actual party to the
proceeding. (Cunningham vs. Shanklin, 60 Cal., 118, 125.)
A proceeding in rem, in a strict sense, is one taken strictly
against property, and has for its object the disposition of the
property, without reference to the title of individual claimants. But
in a larger and more general sense the phrase "proceeding in rem" is
applied to actions between parties, where the direct object is to
reach and dispose of property owned by them, or of some interest
therein. (Arndt vs. Griggs, 134 U.S., 316.)
A proceeding brought to determine the status of a
particular thing itself and which is confined to the subject-matter in
specie, is in rem, the judgment being intended to determine the
state or condition, and, pro facto, to render the thing what the
judgment declares it to be. Process may be served on the thing itself
and by such service and making proclamation, the court is
authorized to decide upon it without notice to persons, all the world
being parties. (Cross vs. Armstrong, 44 Ohio St., 613; Woodruff vs.
Taylor, 20 Vt., 63, 73.)
A "judgment in rem" is an adjudication pronounced upon
the state of some particular subject-matter by a court having
competent authority for that purpose; while a "judgment in
personam" is, in form as well as in substance, between persons
claiming a particular right, and that it is so inter parties, appears by
the record itself. A "judgmentin rem" differs from a "judgment in
personam" in this, that the latter is, in form as well as substance,

CIVIL PROCEDURE
between the parties claiming the right, and that it is so inter parties,
appears by the record, and it is binding only upon the parties
appearing to be such by the record, and those claiming by them. But
a "judgment in rem" is founded upon a proceeding instituted not
against the person as such but against or upon a particular thing or
subject-matter, whose state or condition is to be determined, and a
judgment is a solemn declaration upon the status of the thing and
it ipso facto renders it what it declares it to be. (Woodruff vs.
Taylor, supra.)
In a "judgment in personam" when property is sold
thereunder at public auction, the rights of the owner only are sold,
while in a "judgment in rem" the res itself is sold.
An examination of the remedies for the collection of
unpaid municipal taxes shows that different states have adopted
different methods. The methods may be summarized as: First, an
action to recover personal judgment; second, an action to enforce a
lien on land; third, a summary sale of the property on which the
taxes are in lien; and, fourth, by distraint. In the Philippine Islands
the Legislature has adopted practically the third method, by a
summary sale of the property on which the taxes have become a
lien by advertising and a sale at public auction. Under that system
the City of Manila may sell either personal property or the land upon
which the tax exists. The City of Manila may use its discretion either
by proceeding against the personal property of the taxpayer or
against the land upon which the tax has been levied. The fact that
the City of Manila has the option of proceeding against the real or
personal property, evidently is the fact which induced this court in
the two decisions cited above (Government of the Philippine
Islands vs. Adriano, supra; Valencia vs. Jimenez, and Fuster, supra),
to decide that in this jurisdiction the action to collect delinquent
taxes upon real property is an action in personam and not in rem.
In jurisdictions where the action to recover delinquent
taxes upon land is an action in personam, the tax title issued
thereunder is purely a derivative title and such a deed conveys only
such title as was vested in the delinquent taxpayer. Government of
the Philippine Islands vs. Adriano, supra; McDonald vs. Hanna, 51
Fed. Rep., 73.)

Actions in rem, in personam and quasi in rem:

Action in rem Action in personam Action quasi in rem
DOMAGAS vs JENSEN
G.R. No. 158407, January 17, 2005
Facts:
MTC: Filomena Domagas filed a complaint for forcible
entry against respondent Vivian Jensen before the MTC. The
summons and the complaint were NOT served on the respondent
because the latter was apparently out of the country. This was
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relayed to the Sheriff by her (the respondents) brother, Oscar
Layno, who was then in the respondents house at No. 572 Barangay
Buenlag, Calasiao, Pangasinan. The Sheriff left the summons and
complaint with Oscar Layno, who received the same. TC rendered
judgment in favor of DOMAGAS. The respondent failed to appeal the
decision and a writ of execution was issued.
RTC: JENSEN filed annulment of decision of MTC against
the petitioner on the ground that due to the Sheriffs failure to serve
the complaint and summons on her because she was in Oslo,
Norway, the MTC never acquired jurisdiction over her
person. Respondents allegations: the service of the complaint
and summons through substituted service on her brother, Oscar
Layno, was improper because of the following: (a) when the
complaint in Civil Case No. 879 was filed, she was not a resident of
Barangay Buenlag, Calasiao, Pangasinan, but of Oslo, Norway, and
although she owned the house where Oscar Layno received the
summons and the complaint, she had then leased it to Eduardo
Gonzales; (b) she was in Oslo, Norway, at the time the summons and
the complaint were served; (c) her brother, Oscar Layno, was merely
visiting her house in Barangay Buenlag and was not a resident nor an
occupant thereof when he received the complaint and summons;
and (d) Oscar Layno was never authorized to receive the summons
and the complaint for and in her behalf.
In her answer the petitioner alleged that the respondent
was a resident of Barangay Buenlag, Calasiao, Pangasinan and was
the owner of the subject premises where Oscar Layno was when the
Sheriff served the summons and complaint; that the service of the
complaint and summons by substituted service on the respondent,
the defendant in Civil Case No. 879, was proper since her brother
Oscar Layno, a resident and registered voter of Barangay. Buenlag,
Calasiao, Pangasinan, received the complaint and summons for and
in her behalf.
TC rendered a decision in favor of the respondent.
CA : affirmed the decision with modification . The
petitioner appealed the decision to the CA. The CA ruled that the
complaint in Civil Case No. 879 was one for ejectment, which is an
action quasi in rem. Since the defendant therein was temporarily out
of the country, the summons and the complaint should have been
served via extraterritorial service under Section 15 in relation to
Section 16, Rule 14 of the Rules of Court, which likewise requires
prior leave of court. Considering that there was no prior leave of
court and none of the modes of service prescribed by the Rules of
Court was followed by the petitioner, the CA concluded that there
was really no valid service of summons and complaint upon the
respondent, the defendant in Civil case.
SC: The petitioner assails the decision of the CA, alleging
that the appellate court erred in holding that the respondents
complaint for ejectment is an action quasi in rem. The petitioner
insists that the complaint for forcible entry is an action in personam;
therefore, substituted service of the summons and complaint on the
respondent, in accordance with Section 7, Rule 14 of the Rules of
Court, is valid. The petitioner, likewise, asserts that Oscar Layno is a
resident and a registered voter of Barangay Buenlag, Calasiao,
Pangasinan; hence, the service of the complaint and summons on
the respondent through him is valid.

CIVIL PROCEDURE
Issue:
Whether or not the appellate court erred in holding that
the respondents complaint for ejectment is an action quasi in rem.
Yes
Whether or not there was a valid service of the summons
and complaint in Civil Case No. 879 on the respondent herein who
was the defendant in the said case. No
Held:
Yes. The action of the petitioner for forcible entry is a real
action and one in personam.
No. In an action in personam, jurisdiction over the person
of the defendant is necessary for the court to validly try and decide
the case. Jurisdiction over the person of a resident defendant who
does not voluntarily appear in court can be acquired by personal
service of summons as provided under Section 7, Rule 14 of the
Rules of Court. If he cannot be personally served with summons
within a reasonable time, substituted service may be made in
accordance with Section 8 of said Rule. If he is temporarily out of the
country, any of the following modes of service may be resorted to:
(a) substituted service set forth in Section 8; (2) personal service
outside the country, with leave of court; (3) service by publication,
also with leave of court; or (4) any other manner the court may
deem sufficient. Thus, any judgment of the court which has no
jurisdiction over the person of the defendant is null and void.
The settled rule is that the aim and object of an action
determine its character. Whether a proceeding is in rem, or in
personam, or quasi in rem for that matter, is determined by its
nature and purpose, and by these only. A proceeding in personam is
a proceeding to enforce personal rights and obligations brought
against the person and is based on the jurisdiction of the person,
although it may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose of it in
accordance with the mandate of the court. The purpose of a
proceeding in personam is to impose, through the judgment of a
court, some responsibility or liability directly upon the person of the
defendant. Of this character are suits to compel a defendant to
specifically perform some act or actions to fasten a pecuniary
liability on him. An action in personam is said to be one which has
for its object a judgment against the person, as distinguished from a
judgment against the propriety to determine its state. It has been
held that an action in personam is a proceeding to enforce personal
rights or obligations; such action is brought against the person. As
far as suits for injunctive relief are concerned, it is well-settled that it
is an injunctive act in personam. In Combs v. Combs, the appellate
court held that proceedings to enforce personal rights and
obligations and in which personal judgments are rendered adjusting
the rights and obligations between the affected parties is
in personam. Actions for recovery of real property are in personam.
On the other hand, a proceeding quasi in rem is one
brought against persons seeking to subject the property of such
persons to the discharge of the claims assailed. In an action quasi in
rem, an individual is named as defendant and the purpose of the
proceeding is to subject his interests therein to the obligation or
loan burdening the property. Actions quasi in rem deal with the
status, ownership or liability of a particular property but which are
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intended to operate on these questions only as between the
particular parties to the proceedings and not to ascertain or cut off
the rights or interests of all possible claimants. The judgments
therein are binding only upon the parties who joined in the action.
An action for unlawful detainer or forcible entry is a real
action and in personam because the plaintiff seeks to enforce a
personal obligation or liability on the defendant under Article 539 of
the New Civil Code, for the latter to vacate the property subject of
the action, restore physical possession thereof to the plaintiff, and
pay actual damages by way of reasonable compensation for his use
or occupation of the property.
In the present case, the records show that the respondent,
before and after his marriage to Jarl Jensen on August 23, 1987,
remained a resident of Barangay Buenlag, Calasiao, Pangasinan. This
can be gleaned from the Deed of Absolute Sale dated August 26,
1992 in which she declared that she was a resident of said barangay.
Moreover, in the Real Estate Mortgage Contract dated February 9,
1999, ten days before the complaint in Civil Case No. 879 was filed,
the petitioner categorically stated that she was a Filipino and a
resident of Barangay Buenlag, Calasiao, Pangasinan. Considering
that the respondent was in Oslo, Norway, having left the Philippines
on February 17, 1999, the summons and complaint in Civil Case No.
879 may only be validly served on her through substituted service
under Section 7, Rule 14 of the Rules of Court, which reads:
SEC. 7. Substituted service. If, for justifiable causes, the
defendant cannot be served within a reasonable time as provided in
the preceding section, service may be effected (a) by leaving copies
of the summons at the defendants residence with some person of
suitable age and discretion then residing therein, or (b) by leaving
the copies at defendants office or regular place of business with
some competent person in charge thereof.
Strict compliance with the mode of service is required in
order that the court may acquire jurisdiction over the person of the
defendant.The statutory requirement of substituted service must be
followed faithfully and strictly and any substituted service other
than that authorized by the statute is rendered ineffective.
The Return of Service filed by Sheriff Eduardo J. Abulencia
on the service of summons do not show that as of April 5, 1999, the
house where the Sheriff found Oscar Layno was the latters
residence or that of the respondent herein. Neither is there any
showing that the Sheriff tried to ascertain where the residence of
the respondent was on the said date. It turned out that the
occupant of the house was a lessor, Eduardo Gonzales, and that
Oscar Layno was in the premises only to collect the rentals from
him. The service of the summons on a person at a place where he
was a visitor is not considered to have been left at the residence or
place or abode, where he has another place at which he ordinarily
stays and to which he intends to return.
Therefore, the respondent was not validly served with
summons and the complaint in Civil Case No. 879 on April 5, 1999,
by substituted service. Hence, the MTC failed to acquire
jurisdiction over the person of the respondent; the decision of the
MTC in Civil Case No. 879 is null and void.

CIVIL PROCEDURE

Actions in rem, in personam and quasi in rem:

Action in rem Action in personam Action quasi in rem
MIDGELY vs HON. FERANDOS
G.R. No. L-34314, May 13, 1975
Facts:
Petitioner Midgely and Pastor Jr. are children of Pastor Sr.
and Sofia Bossio, who died in Oct. 1966. They both lived in Spain,
while the private respondent Quemada claims to Pastor Sr.
illegitimate child.
When Pastor Sr. died in June 1966, his supposed
holographic will dated July 31, 1961, devised 30% of his 42% share in
certain mining claims and real properties. In 1970, the said will was
presented for probate in special proceedings in CFI Cebu. Thereafter,
Quemada was appointed special administrator of the decedents
estate, which Midgely and Pastor Jr. opposed. They prayed for the
dismissal of the proceeding. (The holographic will was probated in
the lower court's order of December 5, 1972 which was appealed to
the Court of Appeals by Mrs. Midgely and Alvaro Pastor, Jr., CA-G.R.
No. 52961-R).
As such administrator and as heir of Alvaro Pastor, Sr.,
Quemada filed in the CFI a complaint against the spouses Pastor, Jr.,
Midgely, Atlas Consolidated Mining and Development Corporation
and Caltex (Philippines), Inc. to settle the question of ownership
over certain real properties and the rights in some mining claims,
to obtain an accounting and payment of the royalties and income
thereof and for the payment of damages. Quemada's theory is that
those properties and income belong to the estate of Alvaro Pastor,
Sr.
Allegedly without complying with the requirements of Rule
14 of the Rules of Court, Quemada caused extraterritorial service of
summons to be made in that case through the DFA and the
Philippine Embassy in Madrid, Spain, which effected the service of
the summons by registered mail upon Mrs. Midgely and the Pastor,
Jr. spouses at their respective address in Alicante and Barcelona,
Spain.
Alvaro Pastor, Jr. and Mrs. Midgely, in their respective
letters to the Philippine Embassy dated February 11 and 12, 1971,
acknowledged the service of summons but reserved the right to
contest the courts jurisdiction over their persons. The MinisterCounselor of the Embassy forwarded those letters to the Clerk of
Court and apprised him of the manner the summons was served.
Through counsel, Mrs. Midgely and the Pastor, Jr. spouses entered a
special appearance and filed a motion to dismiss on the ground of
lack of jurisdiction. They contended that as nonresidents, they could
be summoned only with leave of court and that the requirements
laid down in section 17 of Rule 14 should have been observed.
Quemada opposed the motion to dismiss.
The CFI Judge denied the motion. He ruled that Mrs.
Midgely and the Pastor, Jr. spouses had been properly summoned.
He gave Mrs. Midgely and the Pastor, Jr. spouses 70 days from
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February 12, 1971 within which to file their answer, deducting from
that period the time from March 10 to May 8, 1971 when their
motion to dismiss was pending.
The motion for reconsideration was likewise denied, he
ruled that the action filed by Quemada was for the recovery of real
properties and real rights. He gave Mrs. Midgely and the Pastor, Jr.
spouses 60 days from notice within which to answer the complaint
and directed that a copy of his order be sent to them through the
Philippine Embassy in Madrid.
Hence, the petition for certiorari herein filed on November
3, 1971.
Issue:
Whether or not the lower court has acquired jurisdiction
over the person of the petitioner.
Held:
Yes. We are of the opinion that the lower court has
acquired jurisdiction over the person of Mrs. Midgely by reason of
her voluntary appearance. The reservation in her motion to dismiss
that she was making a special appearance to contest the court's
jurisdiction over her person may be disregarded.
It may be disregarded because it was nullified by the fact
that in her motion to dismiss she relied not only on the ground of
lack of jurisdiction over the person but also on the ground that there
was no showing that earnest efforts were exerted to compromise
the case and because she prayed "for such other relief as" may be
deemed "appropriate and proper".
"When the appearance is by motion for the purpose of
objecting to the jurisdiction of the court over the person, it must be
for the sole and separate purpose of objecting to the jurisdiction of
the court. If his motion is for any other purpose than to object to the
jurisdiction of the court over his person, he thereby submits himself
to the jurisdiction of the court. A special appearance by motion
made for the purpose of objecting to the jurisdiction of the court
over the person will be held to be a general appearance, if the party
in said motion should, for example, ask for a dismissal of the action
upon the further ground that the court had no jurisdiction over the
subject matter." (Syllabus, Flores vs. Zurbito, supra, at page 751.
That rule was followed in Ocampo vs. Mina and Arejola, 41 Phil.
308).
Having shown that Mrs. Midgely had voluntarily submitted
to the lower court's jurisdiction when she filed her motion to dismiss
(see sec. 23, Rule 14, Rules of Court), the inevitable conclusion is
that it did not commit any grave abuse of discretion in denying her
motion to dismiss.
The case may be viewed from another angle.
Supposing arguendo that the lower court did not acquire jurisdiction
over the person of Mrs. Midgely, still her motion to dismiss was
properly denied because Quemada's action against her may be
regarded as a quasi in rem action where jurisdiction over the
person of the nonresident defendant is not necessary and where
service of summons is required only for the purpose of complying
with the requirement of due process.

CIVIL PROCEDURE
An action quasi in rem is an action between parties where
the direct object is to reach and dispose of property owned by them,
or of some interest. Quemada's action falls within that category.
With respect to the extraterritorial service of summons to a
nonresident defendant like Mrs. Midgely, Rule 14 of the Rules of
Court provides: SEC. 17. Extraterritorial service. When the
defendant does not reside and is not found in the Philippines and
the action affects the personal status of the plaintiff or relates to, or
the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent, or in
which the relief demanded consists, wholly or in part, in excluding
the defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service may, by
leave of court, be effected out of the Philippines by personal service
as under section 7; or by publication in a newspaper of general
circulation in such places and for such time as the court may order,
in which case a copy of the summons and order of the court shall be
sent by registered mail to the last known address of the defendant,
or in any other manner the court may deem sufficient. Any order
granting such leave shall specify a reasonable time, which shall not
be less than sixty (60) days after notice, within which the defendant
must answer.
Under section 17, extraterritorial service of summons is
proper (1) when the action affects the personal status of the
plaintiff; (2) when the action relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims
a lien or interest, actual or contingent; (3) when the relief demanded
in such an action consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines,
and (4) when defendant nonresident's property has been attached
within the Philippines (Sec. 17, Rule 14, Rules of Court).
In any of such four cases, the service of summons may,
with leave of court, be effected out of the Philippines in three ways:
(1) by personal service; (2) by publication in a newspaper of general
circulation in such places and for such time as the court may order,
in which case a copy of the summons and order of the court should
be sent by registered mail to the last known address of the
defendant, and (3) service of summons may be effected in any other
manner which the court may deem sufficient. That third mode of
extraterritorial service of summons was substantially complied with
in this case.
It should be noted that Civil Case No. 274-T is related to
the testamentary proceeding (which is a proceeding in rem par
excellance) because the former case was filed by Quemada for the
purpose of recovering the properties which, according to his
understanding, belong to the estate of Alvaro Pastor, Sr. and which
are held by Mrs. Midgely and the spouses Alvaro Pastor, Jr. and
Maria Elena Achaval. Disposition: Petition is dismissed.

Actions in rem, in personam and quasi in rem:

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Action in personam Action quasi in rem RAYRAY vs CHAE KYUNG LEE
G.R. No. L-18176, October 26, 1966
Facts:
Plaintiff Lazaro Rayray seeks the annulment of his
marriage to defendant Chae Kyung Lee. Inasmuch as, the latter's
whereabouts is unknown, and she was formerly a resident of Pusan,
Korea, summons was served by publication, as provided in the Rules
of Court. Thereafter, plaintiff moved that defendant be declared in
default, she not having filed an answer, and that a date be set for
the reception of his evidence. Before acting on this motion, the
lower court referred the case to the City Fiscal of Manila pursuant to
Articles 88 and 101 of the Civil Code of the Philippines, for the
purpose of determining whether or not a collusion between the
parties exists. Said officer having found no such collusion, the case
was heard on the merits. In due course, thereafter, decision was
rendered dismissing plaintiff's complaint, without costs, upon the
ground: (1) that the court could not nullify a marriage contracted
abroad; and (2) that the facts proven do not warrant the relief
prayed for. A reconsideration of this decision having been denied,
plaintiff appealed to the Court of Appeals, which certified the case
to the Supreme Court, the jurisdiction of the lower court being in
issue in the appeal.
In relation thereto, the court a quo found that it had no
jurisdiction to pass upon the validity of plaintiff's marriage to the
defendant, it having been solemnized in Seoul, Korea. Said
conclusion is erroneous. In order that a given case could be validly
decided by a court of justice, it must have jurisdiction over (1) the
subject-matter of the litigation; (2) the person of the parties therein;
and (3) in actions in rem or quasi-in-rem, the res.
Issue:
Whether or not the lower court has acquired jurisdiction
over the annulment case contracted in Korea.
Held:
Yes. The subject-matter of the present case is the
annulment of plaintiff's marriage to the defendant, which is within
the jurisdiction of our courts of first instance, and, in Manila, of its
Court of Juvenile and Domestic Relations.
The same acquired jurisdiction over plaintiff herein by his
submission thereto in consequence of the filing of the complaint
herein. Defendant was placed under the jurisdiction of said court,
upon the service of summons by publication.
This is an action in rem, for it concerns the status of the
parties herein, and status affects or binds the whole world.
The res in the present case is the relation between said parties, or
their marriage tie. Jurisdiction over the same depends upon the
nationality or domicile of the parties, not the place of celebration of
marriage, or the locus celebrationis. Plaintiff here is a citizen of the
Philippines, domiciled therein. His status is, therefore, subject to our
jurisdiction, on both counts. True that defendant was and under
plaintiff's theory still is a non-resident alien. But, this fact does

CIVIL PROCEDURE
not deprive the lower court of its jurisdiction to pass upon the
validity of her marriage to plaintiff herein.
Indeed, marriage is one of the cases of double status, in
that the status therein involves and affects two persons. One is
married, never in abstract or a vacuum, but, always to somebody
else. Hence, a judicial decree on the marriage status of a person
necessarily reflects upon the status of another and the relation
between them. The prevailing rule is, accordingly, that a court has
jurisdiction over the res, in an action for annulment of marriage,
provided, at least, one of the parties is domiciled in, or a national
of, the forum. Since plaintiff is a Filipino, domiciled in the
Philippines, it follows that the lower court had jurisdiction over
the res, in addition to its jurisdiction over the subject-matter and the
parties. In other words, it could validly inquire into the legality of the
marriage between the parties herein.
Disposition: Decision appealed from is affirmed. NOTE:
The marriage of the parties was not annulled due to insufficiency of
evidence to establish that defendant was married to another person
prior to their marriage.

Independent Civil Action - an entirely separate and distinct civil

action for damages, which shall proceed independently of the
criminal prosecution and shall be proved only by a preponderance of
evidence
- Articles 32, 33, 34 & 2176, New Civil Code of the Philippines;
Section 3, Rule 111, Rules of Criminal Procedure
LIM vs DE LEON
G.R. No. L-22554, August 29, 1975
Background of the case:
On April 1961, petitioner Taha sold to Timbangcaya a
motor launch. On April 1962, Timbangcaya filed a complaint with the
Office of the Provincial Fiscal of Palawan alleging that Taha forcibly
took away the motor launch from him. After conducting preliminary
investigation, Fiscal de Leon filed with the CFI-Palawan an
Information for Robbery with Force and Intimidation upon Persons
against Taha.
Facts:
On June 1962, upon being informed that the motor launch
was in Balabac, Palawan, he wrote the Provincial Commander in
Balabac to impound the motor launch. He reiterated on a followup
request that the subsequent sale of the motor launch to Lim cannot
prevent the court from taking custody of the same. On July 6, 1962,
Maddela, upon the order of the Provincial Commander, seized the
motor launch from Lim and impounded it. Lim and Taha pleaded
with Fiscal de Leon to return the motor launch but he refused,
insisting that the same was the subject of a criminal offense.
Lim and Taha filed with CFI, a complaint for damages
against Fiscal de Leon and Maddela alleging that Maddela entered
the premises of Lim without a search warrant and there took away
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CASE DIGEST: ACTION

the hull of the motor launch without his consent; and that he
effected the seizure upon the order of Fiscal de Leon who was not
vested with authority to order the seizure of a private property; for
the payment of damages for the alleged violation of their
constitutional rights.
Private respondents denied the material allegations and as
affirmative defenses, alleged that Fiscal de Leon, as Acting Provincial
Fiscal of Palawan, he ordered the seizure of the motor launch for
being the corpus delicti of the robbery; and that Maddela merely
obeyed his superior officer to impound said launch.
The trial court rendered its decision, upholding the
validity of the seizure of the motor launch on the ground that "the
authority to impound evidences or exhibits or corpus delicti in a
case pending investigation is inherent in the Provincial Fiscal who
controls the prosecution and who introduces those exhibits in the
court." Accordingly, the trial court dismissed the complaint of
plaintiffs-appellants and ordered them to pay jointly and severally
each of the defendants-appellees the amount of P500.00 by way of
actual damages, another amount of P500.00 for attorney's fees and
P1,000.00 as exemplary damages. Hence, this appeal on a question
of law.
Issue:
Whether or not the respondents are civilly liable to
plaintiffs-appellants for damages allegedly suffered by them
granting that the seizure of the motor launch was unlawful.
Held:
Yes. Article 32 and 2219 of the Civil Code, provides: ART.
32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and liberties of
another person shall be liable to the latter for damages.
xxx
xxx
xxx
(9) The rights to be secure in one's person, house, papers, and
effects against unreasonable searches and seizures.
xxx
xxx
xxx
The indemnity shall include moral damages. Exemplary damages
may also be adjudicated."
"ART. 2219. Moral damages may be recovered in the
following and analogous cases:
xxx
xxx
xxx
"(6) Illegal search;
xxx
xxx
xxx
"(1) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32,
34 and 35."
Pursuant to the foregoing provisions, a person whose
constitutional rights have been violated or impaired is entitled to
actual and moral damages from the public officer or employee
responsible therefor. In addition, exemplary damages may also be
awarded.
However, with respect to plaintiff Jikil Taha, he is not
entitled to recover any damage which he alleged he had suffered
from the unlawful seizure of the motor launch inasmuch as he had
already transferred the ownership and possession of the motor
launch to Delfin Lim at the time it was seized and therefore, he has

CIVIL PROCEDURE
no legal standing to question the validity of the seizure. Well settled
is the rule that the legality of a seizure can be contested only by
the party whose rights have been impaired thereby, and that the
objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. Consequently, one who is not
the owner, lessee, or lawful occupant of the premises searched
cannot raise the question of validity of the search and seizure. Jikil
Taha is not without recourse though. He can still collect from his coplaintiff, Delfin Lim the unpaid balance of P1,000.00.
Defendant-appellee Fiscal Ponce de Leon wanted to wash
his hands of the incident by claiming that "he was in good faith,
without malice and without the slightest intention of inflicting injury
to plaintiff-appellant, Jikil Taha" when he ordered the seizure of the
motor launch. We are not prepared to sustain his defense of good
faith. To be liable under Article 32 of the New Civil Code it is enough
that there was a violation of the constitutional rights of the plaintiffs
and it is not required that defendants should have acted with malice
or bad faith.
But defendant-appellee Orlando Maddela cannot be held
accountable because he impounded the motor launch upon the
order of his superior officer, the Provincial Commander.
Disposition: IN VIEW OF THE FOREGOING, the decision
appealed from is hereby reversed and another one entered
declaring the seizure illegal and ordering defendant-appellee Fiscal
Francisco Ponce de Leon to pay to plaintiff-appellant Delfin Lim the
sum of P3,000.00 as actual damages, plus P1,000.00 moral damages,
and, in addition, P750.00 for attorney's fees. With costs against
defendant-appellee Fiscal Ponce de Leon.

Independent Civil Action - an entirely separate and distinct civil

action for damages, which shall proceed independently of the
criminal prosecution and shall be proved only by a preponderance of
evidence
- Articles 32, 33, 34 & 2176, New Civil Code of the Philippines;
Section 3, Rule 111, Rules of Criminal Procedure
CARANDANG vs HON. SANTIAGO
G.R. No. L-8238, May 25, 1955
Facts:
This is a petition for certiorari against Honorable Vicente
Santiago, Judge of the Court of First Instance of Manila, to annul his
order in Civil Case No. 21173, entitled Cesar M. Carandang vs. Tomas
Valenton, Sr. et al., suspending the trial of said civil case to await the
result of the criminal Case No. 534, Court of First Instance of
Batangas. In this criminal case, Tomas Valenton, Jr. was found guilty
of the crime of frustrated homicide committed against the person of
Cesar Carandang, petitioner herein. Tomas Valenton, Jr. appealed
the decision to the Court of Appeals where the case is now pending.

meikimouse

CASE DIGEST: ACTION

The decision of the Court of First Instance of Batangas in
the criminal case was rendered on September 1,1953 and petitioner
herein filed a complaint in the Court of First Instance of Manila to
recover from the defendant Tomas Valenton, Jr. and his parents,
damages, both actual and moral, for the bodily injuries received by
him on occasion of the commission of the crime of frustrated
homicide by said accused Tomas Valenton, Jr. After the defendants
submitted their answer, they presented a motion to suspend the
trial of the civil case, pending the termination of the criminal case
against Tomas Valenton, Jr. in the Court of Appeals. The judge
ruled that the trial of the civil action must await the result of the
criminal case on appeal. A motion for reconsideration was
submitted, but the court denied the same; hence this petition for
certiorari.
Issue:
Whether or not the complaint for damages may proceed
independently pending resolution of the criminal case before the
Court of Appeals.
Held:
Yes. Petitioner invokes Article 33 of the new Civil Code,
which is as follows: "In cases of defamation, fraud, and physical
injuries, a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured party. Such
civil action shall proceed independently of the criminal prosecution,
and shall require only a preponderance of evidence."
The Code Commission itself states that the civil action
allowed (under Article 33) is similar to the action in tort for libel or
slander and assault and battery under American law (Report of the
Code Commission, pp 46-47). But respondents argue that the term
"physical injuries" is used to designate a specific crime defined in the
Revised Penal Code, and therefore said term should be understood
in its peculiar and technical sense, in accordance with the rules
statutory construction.
In the case at bar, the accused was charged with and
convicted of the crime of frustrated homicide, and while it was
found in the criminal case that a wound was inflicted by the
defendant on the body of the petitioner herein Cesar Carandang,
which wound is a bodily injury, the crime committed is not physical
injuries but frustrated homicide, for the reason that the infliction
of the wound is attended by the intent to kill. So the question
arises whether the term "physical injuries" used in Article 33 means
physical injuries in the Revised Penal Code only, or any physical
injury or bodily injury, whether inflicted with intent to kill or not.
The Article in question uses the words "defamation",
"fraud" and "physical injuries." Defamation and fraud are used in
their ordinary sense because there are no specific provisions in the
Revised Penal Code using these terms as means of offenses defined
therein, so that these two terms defamation and fraud must have
been used not to impart to them any technical meaning in the laws
of the Philippines, but in their generic sense. With this apparent
circumstance in mind, it is evident that the term "physical injuries"
could not have been used in its specific sense as a crime defined in
the Revised Penal Code, for it is difficult to believe that the Code
Commission would have used terms in the same articlesome in

CIVIL PROCEDURE
their general and another in its technical sense. In other words, the
term "physical injuries" should be understood to mean bodily
injury, not the crime of physical injuries, because the terms used
with the latter, are general terms. In any case the Code
Commission recommended that the civil action for physical injuries
be similar to the civil action for assault and battery in American
Law, and this recommendation must have been accepted by the
Legislature when it approved the article intact as recommended. If
the intent has been to establish a civil action for the bodily harm
received by the complainant similar to the civil action for assault
and battery, as the Code Commission states, the civil action should
lie whether the offense committed is that of physical injuries, or
frustrated homicide, or attempted homicide, or even death.
A parallel case arose in that of Bixby vs. Sioux City, 164 N.
W. 641, 643. In that case, the appellant sought to take his case from
the scope of the statute by pointing out that inasmuch as notice is
required where the cause of action is founded on injury to the
person, it has no application when the damages sought are for the
death of the person. The court ruled that a claim to recover for
death resulting from personal injury is as certainly "founded on
injury to the person" as would be a claim to recover damages for a
non-fatal injury resulting in a crippled body.
For the foregoing considerations, we find that the
respondent judge committed an error in suspending the trial of the
civil case, and his order to that effect is hereby revoked, and he is
hereby ordered to proceed with the trial of said civil case without
awaiting the result of the pending criminal case. With costs against
the defendant-appellees.

meikimouse

FULL TEXT CASES - ACTION

G.R. No. L-19613

April 30, 1966

ALFONSO
G.
LOPEZ, plaintiff-appellant,
vs.
FILIPINAS COMPAIA DE SEGUROS, defendant-appellee.
Antonio
M.
Mendoza
for
plaintiff-appellant.
Josue H. Gustilo and Associates for defendant-appellee.
REGALA, J.:
This is an appeal by the plaintiff-appellant, Alfonso G. Lopez, from an
order of the Court of First Instance of Manila, dated January 25,
1962, dismissing his complaint against the defendant-appellee,
Filipinas Compaia de Seguros.
Prior to April 22, 1959, the plaintiff applied with the defendant
company for the insurance of his property consisting of a Biederman
truck tractor and a Winter Weils trailer from loss or damage in the
amount of P26,000.00 and P10,000.00, respectively. In connection
with the above application, the defendant company inquired of the
plaintiff the following:
5. Has any company in respect of the insurance of any car
or vehicle (a) declined, cancelled or refused to renew your
insurance?
(b) increased your premium on renewal?
To both questions, the plaintiff answered: "none," though the truth
was at that time, the American International Underwriters of the
Philippines (AIU) had already declined a similar application for
insurance by the plaintiff in respect of the above-described vehicles.
On April 22, 1959, the defendant-appellee issued to the plaintiffappellant two Commercial Vehicle Comprehensive Policies covering
the above properties. On August 30, 1959, while the said policies
were in force, the aforementioned vehicles figured in an accident at
Bagabag, Nueva Vizcaya, resulting in the total loss of the tractor and
partial damage to the trailer. Accordingly, the plaintiff gave notice of
the same to the defendant company and made demand upon the
latter for the payment to him of P27,962.00, the total amount of
damages resulting from the accident.
On April 28, 1960, the defendant-appellant rejected the above claim
by reason of, among others, the claimant's alleged "concealment of
a material fact," namely: that the insured property previously been
declined insurance by another company.
In view of the rejection of his claim by the defendant company, the
plaintiff-appellant filed on May 27, 1960 with the Office of the
Insurance Commissioner a complaint against the said company. On
June 7, 1960, the Assistant Insurance Commissioner requested the
defendant company to give its side of the above complaint and,
thereafter, or on August 1, 1960, the said official "transmitted to the
plaintiff, thru his counsel, the 'self-explanatory letters' dated June
12, 1960 of the American International Underwriters of the
Philippines, Inc., and June 21, 1960 of the defendant, which the said
office had received from said parties in connection with plaintiff's
complaint, with the suggestion that in view of the reluctant attitude
of plaintiff 'towards the company's proposal for the matter to be

CIVIL PROCEDURE
settled thru arbitration, and considering the informative facts
disclosed, in the letter of the AIUPI, plaintiff should pursue his case
to the Court which has proper competence to resolve said matter."
On August 16, 1961, the plaintiff-appellant informed by letter the
Office of the Insurance Commissioner that he was willing to submit
his claim to arbitration and, in the premises, suggested that the
Assistant Insurance Commissioner be designated as the sole
arbitrator of the same. On September 1, 1960, the Insurance
Commissioner informed the plaintiff-appellant of his willingness to
act as the single arbitrator, provided that both parties to the dispute
manifest in writing their conformity thereto and to abide by the
arbitrator's award. The defendant-appellee, on the other hand,
informed the Insurance Commissioner on September 22, 1960 that it
could not consent to the above proposal since "the claim of the
plaintiff cannot be resolved by arbitration, as recourse to arbitration
referred to in the policy contract, envisioned only differences or
disputes, 'with respect to the amount of the company's liability,' and
not to cases where the company does not admit its liability to the
insured." With this rejection, the plaintiff-appellant filed his
complaint with the Court of First Instance of Manila on September
19, 1961.
Against the above complaint, the defendant-appellee filed on
September 29, 1961 a motion to dismiss on the ground of
prescription. The latter argued that the plaintiff's claim had already
prescribed since it was not filed within twelve months from its
rejection by the insurance company as stipulated under paragraph 9
of the General Conditions of Commercial Vehicle Comprehensive
Policy Nos. 5598 and 5599, to wit:
If a claim be made and rejected and an action or suit be
not commenced within twelve months after such rejection
or (in case of an arbitration taking place as provided
herein) within twelve months after the arbitrator,
arbitrators, or umpire shall have made their award then
the claim shall for all purposes be deemed to have been
abandoned and shall not thereafter be recovered
hereunder.
On January 25, 1962, the court a quo sustained the above motion
and dismissed the complaint. Thus, the instant appeal.
The principal issue raised in this appeal is simple: Was the complaint
filed by the plaintiff-appellant with the Office of the Insurance
Commissioner on May 27, 1960 a commencement of an "action or
suit" within the meaning and intent of general condition quoted
above?, If it was, then the plaintiff's complaint has not yet
prescribed since the complaint filed with the said office was made
on May 27, 1960 or just about a month after his claim was rejected
by the defendant-appellee on April 28 1960. On the other hand, if
the above-quoted condition refers alone to an "action or suit" filed
with a court of justice, as the Order appealed from urges and as the
herein appellee maintains, then, indeed, must the finding or
prescription in this incident be upheld. For, while the plaintiff's claim
was rejected on April 28, 1960 by the insurance company, the
"action or suit" thereon with a court of justice was filed some 17
months later, September 19, 1961.
We find for the appellee.
In 1 Moran 86 (1963 ed.), the following jurisprudence is expressed:
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FULL TEXT CASES - ACTION

CIVIL PROCEDURE

Action is the act by which one sues another in a court of

justice for the enforcement or protection of a right, or the
prevention or redress of a wrong. Special proceeding is the
act by which one seeks to establish the status or right of a
party, or a particular fact. Hence, an action is distinguished
from special proceeding in that the former is a formal
demand of a right by one against another, while the latter
is but a petition or a declaration of a status, right or fact.
(Emphasis supplied.)
The above distinction was laid down in connection with the
definition of "action" in Rule 2, Section 1 of the Rules of Court that:
Section 1. Action defined.Action means an ordinary suit
in a Court of Justice by which one party prosecutes
another for the enforcement or protection of a right, or
the prevention or redress of a wrong. (Emphasis supplied.)
Also, in 1 Am. Jur. 407, as cited in Francisco, Civil Procedure, p. 91, a
suit is defined as:
Suit is the prosecution or pursuit of some claim or demand
in a court of justice or any proceeding in a court of
justice in which a plaintiff pursues his remedy to recover a
right or claim. (Emphasis supplied.)
Upon the authorities, therefore, it is settled that the terms "action"
and "suit" are synonymous. Moreover, it is clear that the
determinative or operative fact which converts a claim into an
"action or suit" is the filing of the same with a "court or justice."
Filed elsewhere, as with some other body or office not a court of
justice, the claim may not properly be categorized under either
term.
Apart from the foregoing, however, there is yet one other reason
why the appellant's recourse to the Office of the Insurance
Commissioner could not have been an "action or suit" which could
have halted the running of the prescriptive period stipulated in the
insurance policies involved. An "action or suit" is essentially "for the
enforcement or protection of a right, or the prevention or redress of
a wrong." (Rule 2, Sec. 1, Rules of Court). There is nothing in the
Insurance Law, Act No. 2427, as amended, nor in any of its allied
Legislations, which empowers the Insurance Commissioner to
adjudicate on disputes relating to an insurance company's liability to
an insured under a policy issued by the former to the latter. The
validity of an insured's claim under a specific policy, its amount, and
all such other matters as might involve the interpretation and
construction of the insurance policy, are issues which only a regular
court of justice may resolve and settle. Consequently, the complaint
filed by the appellant herein with the Office of the Insurance
Commission could not have been an "action or suit."
The other assignments of error in the appellant's brief spring from or
are consequences of the latter's view that the claim be filed with the
Office of the Insurance Commissioner was an "action or suit" within
the contemplation of paragraph 9 of the general condition earlier
quoted. With our ruling above, therefore, the necessity to pass on
them becomes inconsequential.
Wherefore, the order appealed from is hereby affirmed, with costs.

meikimouse

FULL TEXT CASES - ACTION

G.R. No. L-3062

September 28, 1951

HILARION
C.
TOLENTINO, plaintiff-appellant,
vs.
THE BOARD OF ACCOUNTANCY, ROBERT ORR FERGUSON and
HANS HAUSAMANN, defendants-appellees.
Quijano,
Rosete
&
Tizon
for
plaintiff-appellant.
Perkins, Ponce Enrile, Contreras and Claro M. Recto for defendantappellee.
BAUTISTA ANGELO, J.:
This is an action for declaratory relief filed by plaintiff in the Court of
First Instance of Manila for the purpose of testing the
constitutionality of section 16-A of Commonwealth Act No. 3105,
otherwise known as the Philippine Accountancy Law, as amended by
Commonwealth Act No. 342. The ground advanced for the claim of
unconstitutionality is that "it is a class legislation since by its terms it
excludes persons engaged in other callings or professions from
adopting, acquiring or using a trade name in connection with the
practice of such callings or professions."
The action is addressed against the Board of Accountancy, Robert
Orr Ferguson, and Hans Hausamann and notice thereof has been
served on the Solicitor General under section 4 of rule 66 of the
Rules of Court; but the Board of Accountancy did not answer the
complaint, nor has the Solicitor General intervened. Only Ferguson
and Hausamann appeared and answered through counsel. Attorney
Claro M. Recto was allowed to intervene asamicus curiae. The case
was submitted for judgment on the pleadings. After the parties had
submitted their memoranda, the court dismissed the complaint
holding that the disputed law does not offend against the
constitution. From that decision the plaintiff appealed to this Court.
As the facts are not disputed, and the case was submitted on the
pleadings, we are quoting hereunder the facts as found by the lower
court in its decision.
The complaint alleges that the plaintiff is a Filipino citizen
and a certified public accountant duly admitted to the
practice of accountancy as per certificate No. 1224 issued
on March 16, 1948; that the Board of Accountancy is an
administrative body created by law and vested with the
power and authority to regulate and supervise the practice
of the profession of accountancy in the Philippines, and
that the defendants Robert Orr Ferguson and Hans
Hausamann are foreigners, the former being a British
subject and the latter a Swiss subject, both admitted to
the practice of accountancy in the Philippines; that said
two defendants have been and are practicing their
profession as certified public accountants under the trade
name "Fleming and Williamson"; and that Section 16-A of
Act No. 3105 as amended by Commonwealth Act No. 342,
authorizing accountants to practice their profession under
a trade name, is unconstitutional on the ground that it
excludes persons engaged in other callings and professions
from adopting or acquiring or using a trade name.
In their answer the defendant Robert Orr Ferguson and
Hans Hausamann practically admitted the foregoing
allegations of the complaint. Said defendants allege that

CIVIL PROCEDURE
Commonwealth Act No. 342 amending Act No. 3105,
authorizing the use of a trade name in the practice of the
profession of accountancy is not a class legislation, nor
does it violate the provision of the Constitution with
respect to equal protection of the laws; that the plaintiff
has no right or interest adversely affected by said law and
that he is entitled to the benefits thereof and may use a
trade or name firm name in the practice of his profession
as accountant.
Upon leave the court Atty. Claro M. Recto appeared
as amicus
curiae supporting
the
validity
or
constitutionality of the provision of law questioned by the
plaintiff.
The parties are agreed as to the material facts alleged in
the pleadings. They are also agreed that the firm name
"Fleming and WIlliamson" is an old trade name of
accountants which was used originally in 1952 by Messrs.
D.M. Flemung and J. Williamson. The right to use this firm
name was sold to various parties until the end it was
acquired at the defendants Robert Orr Ferguson and Hans
Hausamann in 1946. on June 10, 1946, defendants Robert
Orr Ferguson and Hans Hausamann formed a copartnership styled "Ferguson and Hausamann" doing
business under the trade name "Fleming and Williamson".
The articles of co-partnership were presented for
registration in the Securities and Exchange Commission on
the same date. On June 13, 1936, this trade name
"Fleming and Williamson" was registered in the Bureau of
Commerce in accordance with Act No. 3883, as amended
by Act No. 4147, as the firm name of the partnership
"Ferguson and Hausamann," under which the said
defendants would practice their profession as certified
public accountants in the Philippines.
On September 17, 1948, the partnership of "Ferguson and
Hausamann" applied for the renewal of the registration of
"Fleming and Williamson" as their trade name in
accordance with the provisions of Act No. 3883, as
amended by Act No. 4147, and on the same date said
trade
name
or
business
name
was
so
registered.1wphl.nt
The defendant Board of Accountancy did not appear or
answer notwithstanding service of summons upon it and
the upon the Solicitor General. By agreement of the
parties, the case was submitted for decision upon the
pleadings presented and the memoranda filed by the
parties.
We believe that the issues involved in the present case may be
boiled down as follows: (1) whether or not the plaintiff has sufficient
cause of action to question the constitutionality of Commonwealth
act No. 342; and (2) whether or not said Act is constitutional.
1. Plaintiff brought this action for the purpose of testing the
constitutionality of Commonwealth Act No. 342 because, according
to the complaint, it constitutes class legislation for "by its term it
excludes persons engaged in other callings or professions from
adopting, acquiring or using a trade name in connection with such
calling or profession." His main objection centers on the exclusive
character of the law which extends its benefits only to those
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FULL TEXT CASES - ACTION

engaged in the profession of accountancy. It is obvious that he seeks
the declaratory relief not for his own personal benefit, or because
his rights or prerogatives as an accountant, or as an individual, are
adversely affected, but rather for the benefit of persons belonging
to other professions or callings, who are not parties to this case. He
does not claim having suffered any prejudice or damage to him or to
his rights or prerogatives as an accountant by the use of the
disputed name by the defendants. His complaint is rather addressed
against the propriety of the use of said trade name by the
defendants because it is misleading and is liable to defraud the
public. Plaintiff, therefore, has no actual justiciable controversy
against the herein defendants which may give him the right to
secure relief by asserting the unconstitutionality of the law in
question. This case, therefore, does not properly come under rule 66
of the Rules of Court which authorizes the institution of an action for
declaratory relief.
The authorities are unanimous that in order that an action for
declaratory relief may be entertained, it must be predicated on the
following requisite facts or conditions: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose
interests are adverse; (3) the party seeking declaratory relief must
have a legal interest in the controversy; and (4) the issue involved
must be ripe for judicial determination. These requisite facts are
wanting and, therefore, the complaint must fail for lack of sufficient
cause of action.
Justiciability; its requisites. Except that accomplished
physical wrong need not be alleged in a petition for
declaratory relief, a case of such nature must exhibit all
the usual conditions of an ordinary action. There must be
(1) real parties in interest (2) asserting adverse claims and
(3) presenting a ripe issue. The Supreme Court of
Pennsylvania summarized its exhaustive opinion on the
requisites of justiciability of an action for declaratory relief
by saying that the court must be "satisfied that an actual
controversy, or the ripening seeds of one, exists between
parties, all of whom are sui juris and before the court, and
that the declaration sought will be a practical help in
ending the controversy." Justice Brandeis thought that
"the fact that the plaintiff's desires are thwarted by its
own doubts, or by the fears of others does not confer a
cause of action." But the doubt becomes a justiciable
controversy when it is translated into a claim of right
which is actually contested. (Moran's Comm. on the Rules
of Court, vol. II, pp. 131-132, 3rd Ed.).
Granting for the sake of argument that plaintiff has established the
requisite facts to entitle him to claim for declaratory relief, we are,
however, of the opinion that Commonwealth Act No. 342 does not
offend against the equal protection clause of our Constitution on the
ground of class legislation, for the reason that said Act applies alike
to all persons pursuing the same calling or profession under the
same conditions or requirements. Said Acts gives the right or affords
the same privileges to all accountants without distinction or
discrimination. This benefit is extended to the defendants as well as
to the plaintiff. The only requirement is that they should comply
with the provisions of Act No. 3883 as to the procedure to be
followed relative to the use of the chosen trade name. So long as the
law applies to all alike, the requirements of equal protection are
met. (Louisiana ex rel. Francis vs, Reswober, 329 U.S. 559). The
discriminations which are open to objections are those in which
persons engaged in the same business are subjected to different
privileges under the same conditions. (Soon Hing vs. Crowley, 113

CIVIL PROCEDURE
U.S., 703). The authorities on this point are numerous but for our
purpose it is sufficient to quote some which are deemed
representative.
It is a general rule that legislation which affects alike all
persons pursuing the same business under the same
conditions is not such class legislation as is prohibited by
constitutional provisions. The discrimination which are
open to objection are those in which persons engaged in
the same business are subjected to different restrictions or
are held entitled to different privileges under the same
conditions. Part of the liberty of a citizen consists in the
enjoyment, upon terms of equality with all others in
similar circumstances, of the privilege of pursuing an
ordinary calling or trade and of acquiring, holding, and
selling property. The constitutional guaranty as to the
equal protection of the laws, moreover, requires that no
impediment should be interposed to the pursuits of
anyone except as applied to the same pursuits by others
under similar circumstances and that no greater burdens
in engaging in a calling should be laid upon one than are
laid upon others in the same calling and condition. (12 Am.
Jur., 187.).
The general rule is well settled that legislation which, in
carrying out a public purpose, is limited in its application, if
within the sphere of its operation its affects all persons
similarly situated, is not within the prohibition of the 14th
Amendment. The mere fact that legislation is based on a
classification and is made to apply only to a certain limited
group of persons, and not to others, does not affect its
validity, if it is so made that all persons subject to its terms
are treats alike under similar circumstances and
conditions. (12 A. Jur., 143.)
The legislature may classify professions, occupations, and
business, according to natural and reasonable lines of
distinction, and if a statute affects like all persons of the
same class it is not invalid as class legislation; . . . (16 C.J.
S., 966.)
Classification of businesses, occupations, and callings may
be made according to natural, reasonable, and wellorganized lines of distinction, and the mere fact that a
statute or ordinance applies only to a particular position or
profession, or to a particular trade occupation, or
business, or discriminates between persons in different
classes of occupations or lines or business, does not
renders it unconstitutional as class legislation, and such
statutes are valid whenever the partial application or
discrimination is based on real and reasonable distinctions
existing in the subject matter, and affects alike all persons
of the same class or pursuing the same business under the
same conditions; . . . (16 C.J.S., 967.)
It is not true that Commonwealth Act. No. 342 precludes
practitioners of other professions, occupations or calling from using
a trade name in connection with the practice of their professions,
occupation or calling. While said Act does not mention other
professions, occupations or calling, it does not mean that they are
precluded from using a trade name as this privilege is likewise given
to them in other similar laws. We may mention Commonwealth Act
No. 294 for mechanical engineers, Republic Act No. 318 for chemical
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engineers, and even the corporation law as regards corporate names

(Tolentino's Commentaries on Commercial Laws, vol. II, p. 753).
Assuming that Commonwealth act No. 342 grants to accountants a
privilege not accorded to members of other professions or callings,
that alone would not render the Act discriminatory or violative of
the equal protection clause of the constitution, for that clause only
means "that no person or class of persons shall be denied the same
protection of the laws which is enjoyed by other persons or other
classes in the same place and in like circumstances". (Missouri vs.
Lewis, 101 U.S. 22, 31.) And the Legislature may classify professions,
occupations, and business according to natural and reasonable lines
of distinction, and if a statute affects like all persons of the same
class it is not invalid as a class legislation." (16 C.J.S., 966).
The claim that Commonwealth Act No. 342 is discriminatory because
it was approved only to protect foreign accountants has no basis in
law or in fact, for there is nothing that bears it out. Said Act applies
to all accountants in general without distinction.
The claim that said Act contravenes the principle of separation of
powers is likewise untenable. The Act does not encroach upon the
powers of the Executive Department as represented by the Board of
Accountancy simply because it attempts to regulate the profession
of accountants. If our legislature can create the Board of
Accountancy, it can certainly amend the law that gave life to it
without in any way encrouching on the prerogatives of the Executive
Department of our government.
Wherefore, the decision appealed from is affirmed with costs
against the appellants.

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G.R. No. 16680

CIVIL PROCEDURE

September 13, 1920

BROADWELL
HAGANS, petitioner,
vs.
ADOLPH WISLIZENUS, Judge of First Instance of Cebu, ET
AL., respondents.
Block,
Johnston
&
Greenbaum
The
respondent
judge
in
his
No appearance for the other respondents.

for
petitioner.
own
behalf.

JOHNSON, J.:
This is an original petition, presented in the Supreme Court, for writ
of certiorari. The facts alleged in the petition are admitted by a
demurrer. The only question presented is, whether or not a judge of
the Court of First Instance, in "special proceedings," is authorized
under the law to appoint assessors for the purpose of fixing the
amount due to an administrator or executor for his services and
expenses in the care, management, and settlement of the estate of
a deceased person.
The respondent judge, in support of his demurrer, argues that the
provision of Act No. 190 permit him to appoint assessors in "special
proceedings," The petitioner contends that no authority in law exists
for the appointment of assessors in such proceedings.

There is a marked distinction between an "action" and a "special

proceeding. "An action is a formal demand of one's legal rights in a
court of justice in the manner prescribed by the court or by the law.
It is the method of applying legal remedies according to definite
established rules. (People vs. County Judge, 13 How. Pr. [N. Y.], 398.)
The term "special proceeding" may be defined as an application or
proceeding to establish the status or right of a party, or a particular
fact. (Porter vs. Purdy, 29 N. Y., 106, 110; Chapin vs. Thompson, 20
Cal., 681.) Usually, in special proceedings, no formal pleadings are
required, unless the statute expressly so provides. The remedy in
special proceedings is generally granted upon an application or
motion. Illustrations of special proceedings, in contradistinction to
actions, may be given: Proceedings for the appointment of an
administrator, guardians, tutors; contest of wills; to perpetuate
testimony; to change the name of persons; application for admission
to the bar, etc., etc. (Bliss on Code Pleading, 3d ed., sec. 1.)
From all of the foregoing we are driven to the conclusion that in
proceedings like the present the judge of the Court of First Instance
is without authority to appoint assessors. Therefore, the demurrer is
hereby overruled and the prayer of the petition is hereby granted,
and it is hereby ordered and decreed that the order of the
respondent judge appointing the assessors described in the petition
be and the same is hereby annulled and set aside; and, without any
finding as to costs, it is so ordered.

The only provisions of law which authorize the appointment of

assessors are the following; (a) Section 57-62 of Act No. 190; (b)
sections 153-161 of Act No. 190; (c) section 44 (a) of Act No. 267; (d)
section 2477 of Act No. 2711; and (e) section 2 of Act No. 2369.
Said section 44 (a) of Act No. 267 and section 2477 of Act No. 2711
apply to the city of Manila only. Act No. 2369 provides for the
appointment of assessors in criminal cases only. Sections 57-62 of
Act No. 190 provide for the appointment of assessors in the court of
justice of the peace. Therefore, the only provisions of law which
could, by any possibility, permit the appointment of assessors in
"special proceedings" are sections 153-161 of Act No. 190.
Section 154 provides that "either party to an action may apply in
writing to the judge for assessors to sit in the trial. Upon the filing of
such application, the judge shall direct that assessors be provided, . .
. ."
Is a "special proceeding," like the present, an "action"? If it is, then,
the court is expressly authorized by said section 154 to appoint
assessors. But we find, upon an examination of section 1 of Act No.
190, which gives us an interpretation of the words used in said Act,
that a distinction is made between an "action" and a "special
proceeding." Said section 1 provides that an "action" means an
ordinary suit in a court of justice, while "every other remedy
furnished by law is a 'special proceeding."
In view of the interpretation given to the words "action" and
"special proceeding" by the Legislature itself, we are driven to the
conclusion that there is a distinction between an "action" and a
"special proceeding," and that when the Legislature used the word
"action" it did not mean "special proceeding."

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G.R. No. L-31095 June 18, 1976
JOSE
M.
HERNANDEZ, petitioner,
vs.
DEVELOPMENT BANK OF THE PHILIPPINES and COURT OF FIRST
INSTANCE OF BATANGAS, LIPA CITY BRANCH, respondents.
Tomas Yumol for petitioners.
Graciano V. Sebastian for respondent Development Bank of the
Philippines.

CIVIL PROCEDURE
his rights to said award but the latter refused and failed and still
refuses and fails to comply with said request.
Private respondent filed a motion to dismiss the complaint on the
ground of improper venue, contending that since the petitioner's
action affects the title to a house and lot situated in Quezon City, the
same should have been commenced in the Court of First Instance of
Quezon City where the real property is located and not in the Court
of First Instance of Batangas where petitioner resides. On July 24,
1969, the respondent Court sustained the motion to dismiss filed by
private respondent on the ground of improper venue.
Hence, the instant petition to review the order of respondent Court.

MARTIN, J.:
This is a case which involves the question of proper venue in a real
action.
Petitioner Jose M. Hernandez was an employee of private
respondent Development Bank of the Philippines in its Legal
Department for twenty-one (21) years until his retirement on
February 28, 1966 due to illness. On August 12, 1964, in due
recognition of his unqualified service as Assistant Attorney in its
Legal Department, the private respondent awarded to the petitioner
a lot, identified as Lot No. 15, Block No. W-21, in the private
respondent's Housing Project at No. 1 West Avenue, Quezon City,
containing an area of 810 square meters with a Type E house. On
August 31, 1968, after the petitioner received from the private
respondent's Housing Project Committee a statement of account of
the purchase price of the said lot and house in the total amount of
P21,034.56, payable on a monthly amortization of P153.32 for a
term of fifteen (15) years, he sent to the said Committee a Cashier's
Check No. 77089 CC, dated -October 21, 1968, issued by the
Philippine Banking Corporation in the name of his wife in the sum of
P21,500.00 to cover the cash and full payment of the purchase price
of the lot and house awarded to him. However, more than a week
thereafter, or on October 29, 1968, the Chief Accountant and
Comptroller of the private respondent returned to the petitioner
,the aforementioned check, informing him that the private
respondent, through its Committee on Organization, Personnel and
Facilities, had cancelled the award of the lot and house previously
awarded to him on the following grounds: (1) that he has already
retired; (2) that he has only an option to purchase said house and
lot; (3) that there are a big number of employees who have no
houses or lots; (4) that he has been given his retirement gratuity;
and (5) that the awarding of the aforementioned house and lot to an
employee of the private respondent would better subserve the
objective of its Housing Project. Petitioner protested against the
cancellation of the award of the house and lot in his favor and
demanded from private respondent the restoration of all his rights
to said award. However, private respondent refused.
On May 15, 1969 the petitioner filed a complaint in the Court of First
Instance of Batangas against the private respondent seeking the
annulment of the cancellation of the award of the lot and house in
his favor and the restoration of all his rights thereto. He contends
that the cancellation of said award was unwarranted and illegal for
he has already become the owner of said house and lot by virtue of
said award on August 12, 1964 and has acquired a vested right
thereto, which cannot be unilaterally cancelled without his consent;
that he. had requested the private respondent to restore to him all

The only issue in this petition is whether the action of the petitioner
was properly filed in the Court of First Instance of Batangas. It is a
well settled rule that venue of actions or, more appropriately, the
1
county where the action is triable depends to a great extent on the
2
nature of the action to be filed, whether it is real or personal. A
real action is one brought for the specific recovery of land,
3
tenements, or hereditaments. A personal action is one brought for
the recovery of personal property, for the enforcement of some
contract or recovery of damages for its breach, or for the recovery of
damages for the commission of an injury to the person or
4
property. Under Section 2, Rule 4 of the Rules of Court, "actions
affecting title to, or for recovery of possession, or for partition, or
condemnation of , or foreclosure of mortgage in real property, shall
be commenced and tried where the defendant or any of the
defendants resides or may be found, or where the plaintiff or any of
the plaintiffs resides, at the election of the plaintiff".
A close scrutiny of the essence of the petitioner's complaint in the
court a quo would readily show that he seeks the annulment of the
cancellation of the award of the Quezon City lot and house in his
favor originally given him by respondent DBP in recognition of his
twenty-one years of service in its Legal Department, in pursuance of
his contention that he had acquired a vested right to the award
which cannot be unilaterally cancelled by respondent without his
consent.
The Court agrees that petitioner's action is not a real but a personal
action. As correctly insisted by petitioner, his action is one to declare
null and void the cancellation of the lot and house in his favor which
does not involve title and ownership over said properties but seeks
to compel respondent to recognize that the award is a valid and
subsisting one which it cannot arbitrarily and unilaterally cancel and
accordingly to accept the proffered payment in full which it had
rejected and returned to petitioner.
Such an action is a personal action which may be properly brought
by petitioner in his residence, as held in the case of Adamus vs. J.M.
5
Tuason & Co., Inc. where this Court speaking through former Chief
Justice Querube C. Makalintal distinguished the case from an earlier
line of J.M. Tuaxon & Co., Inc. cases involving lot purchasers from
6
the Deudors , as follows:
... All the allegations as well as the prayer in the
complaint show that this is not a real but a
personal action to compel the defendants to
execute the corresponding purchase contracts in
favor of the plaintiffs and to pay damages. The
plaintiffs do not claim ownership of the lots in
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question: they recognize the title of the

defendant J.M. Tuason & Co., Inc. They do not
ask that possession be delivered to them, for
they allege to be in possession. The case cited by
the defendants (Abao, et al. vs. J. M. Tuason &
Co., Inc. G.R. No. L-16796, Jan. 30, 1962) is
therefore not in point. In that case, as stated by
this Court in its decision, the 'plaintiffs' action is
predicated on the theory that they are
'occupants, landholders,' and 'most' of them
owners by purchase' of the residential lots in
question; that, in consequence of the
compromise agreement adverted to above,
between the Deudors; and defendant
corporations, the latter had acknowledged the
right and title of the Deudors in and to said lots;
and hence, the right and title of the plaintiffs, as
successors-in-interest of the Deudors; that, by
entering into said agreement, defendant
corporations had, also, waived their right to
invoke the indefeasibility of the Torrens title in
favor of J. M. Tuason & Co., Inc.; and that
defendants have no right, therefore, to oust
plaintiffs from the lots respectively occupied by
them and which they claim to be entitled to
hold. Obviously, this action affects, therefore,
not only the possession of real property, but,
also, the title thereto. Accordingly, it should have
been instituted in the Court of First Instance of
the Province of Rizal in which said property is
situated (Section 3, Rule 5 of the Rules of Court).
WHEREFORE, the order of dismissal appealed from is set aside and
the case is remanded for further proceedings and disposition on the
merits. No costs.

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G.R. No. L-20341

May 14, 1966

DR.
SIMEON
S.
CLARIDADES, plaintiff
and
appellant,
vs.
VICENTE C. MERCADER and PERFECTO FERNANDEZ, defendants and
appellees,
GUILLERMO
REYES, intervenor
and
appellant,
ARMANDO
H.
ASUNCION, intervenor
and
appellee,
ALFREDO J. ZULUETA and YAP LEDING, intervenors and appellees.
Francisco
S.
Dizon
for
plaintiffs
and
appellants.
Gonzales, Sr. and Munsayac for defendants and appellees.
Jose F. Tiburcio for intervenors and appellees Zulueta and Leding.
Toribio T. Bella for intervenor and appellee Asuncion.
CONCEPCION, J.:
Appeal from an order of dismissal of the Court of First Instance of
Bulacan based upon the ground that venue had been improperly
laid.
Petitioner, Dr. Simeon S. Claridades brought this action against
Vicente C. Mercader and Perfecto Fernandez for the dissolution of a
partnership allegedly existing between them and an accounting of
the operation of the partnership, particularly a fishpond located in
Sta. Cruz, Marinduque, which was the main asset of the partnership,
from September 1954, as well as to recover moral and exemplary
damages, in addition to attorney's fees and costs.
In their answer the defendants admitted the existence of the
partnership and alleged that its operation had been so far
unproductive. By way of special defense, they alleged, also, that
there is an impending auction sale of said fishpond due to
delinquency in the payment of taxes owing to lack of funds and
plaintiff's failure to contribute what is due from him. Defendants,
likewise, set up a counter-claim for damages, by reason of the
institution of this action, and for attorney's fees and costs.
Subsequently, Guillermo Reyes was allowed to intervene for the
purpose of recovering a sum of money allegedly due him for services
rendered as foreman of said fishpond, plus damages. Later, one
Armando Asuncion succeeded in intervening as the alleged assignee
of the interest of defendant. Mercader in said partnership and
fishpond. Thereafter, on plaintiff's motion, the lower court
appointed a receiver of the fishpond. Upon the other hand, Alfredo
Zulueta and his wife Yap Leding sought permission to intervene, still
later, alleging that they are the owners of said fishpond, having
bought one-half ()of it from Benito Regencia, who, in turn, had
acquired it from Asuncion, who had purchased the fishpond from
defendant Mercader, and the other half having been assigned to
him directly by Asuncion.
Despite plaintiff's opposition thereto, said permission was granted in
an order dated February 8, 1962, which, likewise gave the Zuluetas
ten (10) days within which to file such pleading as they may deem
necessary for the protection of their rights. Soon thereafter, or on
February 12, 1962, the Zuluetas filed a motion to dismiss upon the
ground that the complaint states no cause of action; that venue has
been improperly laid; and that plaintiff complaint is moot and
academic. Acting upon the motion, on March 2, 1962, the lower
court granted the same upon the ground of improper venue. A

CIVIL PROCEDURE
reconsideration of this order having been denied, plaintiff and
intervenor Reyes have interposed the present appeal.
The only question for determination before us is whether or not this
action should have been instituted, not in the Court of First Instance
of Bulacan, but in that of Marinduque, where the aforementioned
fishpond is located. The lower court answered this question in the
affirmative, upon the ground that the subject matter of this case is
the possessor of said fishpond, because plaintiff prays in the
complaint that the assets of the partnership, including said fishpond
be sold, that the proceeds of the sale be applied to the payment of
the debts of the partnership, and that the residue be distributed
equally among the partners; that, as intervenor, Asuncion claims to
have an interest in said fishpond; that the same has been placed
under a receivership; and that the Zuluetas claim to be the exclusive
owners of the fishpond aforementioned.
The conclusion drawn from these premises is erroneous. Plaintiff's
complaint merely seeks the liquidation of his partnership with
defendants Fernandez and Mercader. This is obviously a personal
action, which may be brought in the place of residence of either the
plaintiff or the defendants. Since plaintiff is a resident of Bulacan, he
had the right to bring the action in the court of first instance of that
1
province. What is more, although defendants Fernandez and
Mercader reside in Marinduque, they did not object to the venue. In
other words, they waived whatever rights they had, if any, to
2
question it.
The fact that plaintiff prays for the sale of the assets of the
partnership, including the fishpond in question, did not change the
nature or character of action, such sale being merely a necessary
incident of the liquidation of the partnership, which should precede
and/or is part of its process of dissolution. Neither plaintiff's
complaint nor the answer filed by defendants Fernandez and
Mercader questioned the title to said property or the possession
thereof.
Again, the situation was not changed materially by the Intervention
either of Asuncion or of the Zuluetas, for, as alleged successors to
the interest Mercader in the fishpond, they, at best, stepped into his
shoes. Again, the nature of an action is determined by the
3
allegations of the complaint. At any rate, since the venue was
properly laid when the complaint was filed, said venue cannot,
subsequently, become improper in consequence of issues later
raised by any of the intervenors. The court having legally acquired
authority to hear and decide the case, it can not be divested of that
authority by said intervenors. "An intervention cannot alter the
nature of the action and the issues joined by the original parties
4
thereto."
Wherefore, the order appealed from should be as it is hereby set
aside and the case remanded to the lower court for further
proceedings, with costs against intervenors appellees, Armando H.
Asuncion and Mr. and Mrs. Alfredo J. Zulueta. It is so ordered.

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G.R. No. L-5402

CIVIL PROCEDURE

January 28, 1911

CAYETANO
DE
vs.
EL SEMINARIO DE LA
AL., defendants-appellants.
Hartigan
and
Gibbs and Gale for appellee.

LA

CRUZ, plaintiff-appellee,

ARCHIDIOCESIS

Rohde

for

DE

MANILA,

ET

appellants.

TRENT, J.:
The appellee, Cayetano de la Cruz, was a member and the president
of a Methodist Episcopal religious association at Dinalupijan,
Province of Bataan, Philippine Islands. The members of this
association, including Cayetano de la Cruz, having decided to lease a
building site and erect thereon a chapel, made voluntary
contributions for that purpose, Cayetano de la Cruz being among
those who contributed. Cayetano de la Cruz, as such member and
president, was then authorized by the association to lease a certain
building site and to use the funds contributed for the purpose of
constructing a chapel. So on the 17th of May, 1907, he leased from
one J. C. Miller, the agent of the appellant, His Grace Jeremiah J.
Harty, Archbishop of Manila and administrator of the hacienda of
Dinalupijan, for a period of two years, a certain lot or parcel of land,
being a part of that hacienda and which is fully described in the
written contract of lease, agreeing to pay as rental P2 per year, the
first year's rent to be paid in advance. On the execution of this lease
Cayetano de la Cruz, as member and president of the Methodist
Episcopal association, was placed in possession of this lot or building
site and proceeded to construct thereon a chapel for the use of the
said religious association. About the time this chapel was completed
an action of forcible entry and detainer was commenced by one
Raymundo Sinsuangco in the justice of the peace court of
Dinalupijan, in which Cayetano de la Cruz, as lessee of the lot upon
which the chapel was constructed, and J. C. Miller, as agent and
representative of the appellants, who, in such capacity executed said
lease, as lessor, were made defendants. Judgment was rendered
against the defendants in the action. The appellants in the case at
bar were duly notified of the judgment of the justice of the peace
and were requested to appeal to the Court of First Instance. No
appeal was taken and the judgment becoming final was executed in
such a manner that the above-mentioned chapel was completely
destroyed. Subsequently thereto, and on the 21st of October, 1907,
Cayetano de la Cruz commenced this action in the Court of First
Instance of the city of Manila against the appellants to recover the
sum of P2,000 as damages for a breach of the rental contract. To
this complaint the appellants, through their attorneys, presented a
demurrer, based upon the following grounds: (1) That the Court of
First Instance of the city of Manila was without jurisdiction to try and
determine this action for the reason that damages for injuries
caused to real property situated in the Province of Bataan is sought
to be recovered; and (2) the complaint fails to allege facts sufficient
to constitute a cause of action. This demurrer was overruled, the
appellants duly noting their exception.
After all the evidence had been submitted by both parties, the
appellee, after due notice to the appellants, presented an amended
complaint, to conform, as he alleged, with the agreed statement of
facts and the admissions made by the appellants in their answer.
This amended complaint was admitted by the court without
objection on the part of the appellants. The amended complaint is
the same as the original complaint, with the following exceptions:

(1) A number of unnamed person were made parties plaintiff; (2) in

paragraph 2 of the amended complaint it is alleged that Cayetano de
la Cruz was the president, agent, and member of the Methodist
Episcopal religious association: and (3) a judgment for only P402 was
asked.
The court below on the 29th of March, 1909, rendered judgment in
favor of the appellees and against the appellants for the sum of
P402, P2 being the rent for the first year paid in advance, and the
P400 being the agreed value of the chapel which was destroyed by
the sheriff in executing the judgment rendered by the justice of the
peace.
The appellants after noting their exception to the judgment and
making a motion for a new trial, which motion was overruled and
exception thereto noted, appealed to this court, and now insist:
1. That as this action is one for damages to real estate situated in the
Province of Bataan, under the provisions of section 377 of the Code
of Civil Procedure the Court of First Instance of the city of Manila
had no jurisdiction;
2. The court below erred in admitting the amended complaint by
which the other members of the religious association, jointly
interested with Cayetano de la Cruz, were made parties plaintiff;
and,
3. That the appellants are not liable for the consequences of the
judgment of the justice of the peace.
The demurrer was properly overruled. This is not an action to
recover damages to real estate; it is an action for breach of covenant
in a lease. The fact that the damages to real estate are involved, as
an incident to the breach of the contract, does not change the
character of the action. Such an action is personal and transistory.
The rule is well stated in the case of Neil vs. Owen (3 Tex., 145),
wherein the court said (p. 146):
If the action is founded on privity of contract between the
parties, then the action whether debt or covenant, is
transitory. But if there is no privity of contract and the
action is founded on privity of estate only, such a covenant
that runs with the land in the hands of the remote
grantees, then the action is local and must be brought in
the country wherein the land lies.
In an action on a covenant contained in a lease, whether
begun by the lessor against the lessee, or by the lessee
against the lessor, the action is transitory because it is
founded on a mere privity of contract. (Thursby vs. Plant,
cited in vol. 5, Ency. Plead. & Prac., p. 362.)
In general, also, actions which are founded upon contracts
are transitory. In an action upon a lease for nonpayment of
rent or other breach of covenants, when the action is
founded on the privity of contract it is transitory and the
venue may laid in any county. (22 Ency. Plead. & Prac., pp.
782-783.)
Therefore, section 377 of the Code of Civil Procedure, which
provides, among other things, that actions to recover damages for
injuries to real estate shall be brought in the province where the
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land, or a part thereof, is situated, is not applicable. (Molina vs. De la
Riva, 6 Phil. Rep., 12.) The amended complaint clearly states facts
sufficient to constitute a cause of action. (Sec. 90, Code of Civil
Procedure.)
The defendants in the second assignment of error assert that the
plaintiff ought not to have been allowed to amend his complaint so
as to make him the representative of all the persons interested in
the subject matter of this action. We are of the opinion that such
amendment was properly allowed. Section 110 of the Code of Civil
Procedure is exceedingly broad in its term and there is no
disposition in this court to narrow its term or meaning. We are also
of the opinion that this is particularly the class of action to which
section 118 of the Code of Civil Procedure refers. It would be
exceedingly difficult and expensive to require that all persons
interested be made parties plaintiff. To avoid this was the very
purpose in enacting section 118. The plaintiff, as appears from the
record, is the person chosen by the members of the association in
question to look after and represent their interest and it is
correspondingly appropriate that he should represent and act for
them in this action. In permitting this court is not thwarting their will
or endangering their interest, but, rather, is carrying out their
desires and purposes as they have already expressed them.
In the third assignment of error it is insisted that the appellants are
not liable for the consequences of the judgment of the justice of the
peace, for the reason that according to that judgment the plaintiff,
in violation of the rights of Raymundo Sinsuangco, entered upon the
lot in question. It is argued that the plaintiff should not have entered
into possession of this lot in violation of the rights of Sinsuangco, but
that he should have acquired possession by due judicial process, and
that having entered into possession in this manner he must suffer
the consequences of his illegal acts. In this we can not agree. When
this rental contract was executed the lot in question was vacant. The
agent, Miller, led the plaintiff to believe that he could place him in
legal possession of the lot. It was upon this theory that the plaintiff
entered into this contract and paid the rent for the first year. The
record does not affirmatively show that Miller placed the plaintiff in
possession of this lot, but in the absence of proof to the contrary we
think it fair to presume that this occurred. Miller then placed the
plaintiff in possession of this lot, but not in the legal possession of
same. He himself did not have the legal possession as was shown by
the proof before the justice of the peace. Sinsuangco was the person
who was in the actual possession and Miller should have known this
and he should have known at the time he entered into the contract
with the plaintiff that he could not place the plaintiff in legal,
peaceful, and quiet possession of this lot. The plaintiff took
possession under these circumstances and proceeded to construct
the chapel, which was afterwards destroyed in the execution of the
judgment of the justice of the peace. In the contract entered into
between Miller and the plaintiff, it was Miller's duty to place the
plaintiff legally in possession of this lot and maintain him in the
peaceful and quiet possession of the same during the entire period
of the contract.

CIVIL PROCEDURE
3. To maintain the lessee in the peaceful enjoyment of the
premises for the entire period of the contract.
Article 1568 is as follows:
If the thing leased is lost or any of the contracting parties
do not comply with what has been stipulated, the
provisions of article 1182 and 1183 shall be respectively
observed.
Article 1101 provides:
Those who in fulfilling their obligations are guilty of fraud,
negligence, or delay, and those who in any manner
whatsoever act in contravention of the stipulations of the
same, shall be subject to indemnify for the losses and
damages caused thereby.
Under this contract of lease it was the duty of the defendants to give
the plaintiff the legal possession of the premises. This they did not
do.
The defendants failed in the performance of their contract, and, as
we have seen by article 1101 of the Civil Code, the person who fails
in the performance of his obligations shall be subject to indemnify
for the losses and damages caused thereby. "The true measure of
damages for the breach of such a contract is what the plaintiff has
lost by the breach." (Lock vs. Furze, L. R. 1, C. P., 441; Dexter vs.
Manley, 4 Cush. (Mass.), 14.)
The sum of P402, in our opinion, not being excessive damages for
the injuries caused by the breach of contract on the part of the
defendants, the judgment should be and the same is hereby
affirmed, with costs against the appellants. So ordered.

The rights and obligations of lessor and lessee are treated in articles
1554 to 1574, inclusive, of the Civil Code. Article 1554 provides:
The lessor is obligated:
xxx

xxx

xxx

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CIVIL PROCEDURE

G.R. No. L-49475 September 28, 1993

On
4
December
1978,
respondent
judge
denied
8
reconsideration. While admitting that Civil Case No. 2901 did pray
for recovery of possession, he nonetheless ruled that this matter
was not the main issue at hand; neither was the question of
ownership raised. Not satisfied, petitioner instituted the present
recourse.

JORGE
C.
PADERANGA, petitioner,
vs.
Hon. DIMALANES B. BUISSAN, Presiding Judge, Court of First
Instance of Zamboanga del Norte, Branch III and ELUMBA
INDUSTRIES COMPANY, represented by its General Manager, JOSE
J. ELUMBA,respondents.
A.E. Dacanay for petitioner.
Uldarico Mejorada & Associates for private respondent.

BELLOSILLO, J.:
We are called upon in this case to determine the proper venue of an
action to fix the period of a contract of lease which, in the main, also
prays for damages.
Sometime in 1973, petitioner JORGE C. PADERANGA and private
respondent ELUMBA INDUSTRIES COMPANY, a partnership
represented by its General Manager JOSE J. ELUMBA, entered into
an oral contract of lease for the use of a commercial space within a
1
building owned by petition in Ozamiz City. The lease was for an
indefinite period although the rent of P150.00 per month was paid
on a month-to-month basis. ELUMBA INDUSTRIES COMPANY utilized
the area under lease as the Sales Office of Allied Air Freight in
Ozamiz City.
On 4 April 1977, PADERANGA subdivided the leased premises into
two (2) by constructing a partition wall in between. He then took
possession of the other half, which repossession was said to have
been undertaken with the acquiescence of the local manager of
2
ELUMBA, although private respondent maintains that this is not the
3
case. At any rate, the validity of the repossession is not here in
issue.
On 18 July 1977, private respondent instituted an action for
4
damages which, at the same time, prayed for the fixing of the
period of lease at five (5) years, before the then court of First
5
Instance of Zamboanga del Norte based in Dipolog City. Petitioner,
a resident of Ozamiz City, moved for its dismissal contending that
the action was a real action which should have been filed with the
Court of First Instance of Misamis Occidental stationed in Ozamiz
City where the property in question was situated.
On 6 November 1978, respondent Judge Dimalanes B. Buissan
denied the Motion to Dismiss and held that Civil Case No. 2901
merely involved the enforcement of the contract of lease, and while
affecting a portion of real property, there was no question of
6
ownership raised. Hence, venue was properly laid.
Petitioner pleaded for reconsideration of the order denying his
Motion to Dismiss. He contended that while the action did not
involve a question of ownership, it was nevertheless seeking
recovery of possession; thus, it was a real action which,
7
consequently, must be filed in Ozamiz City.

PADERANGA argues that inasmuch as ELUMBA seeks to recover

possession of the portion surrendered to him by the local manager
of private respondent, as well as to fix the period of lease at five (5)
years, Dipolog City could not be the proper venue of the action. it
being a real action, venue is laid in the court having jurisdiction over
the territory in which the property lies.
ELUMBA counters that the present action is chiefly for damages
arising from an alleged breach in the lease contract; hence, the issue
of recovery of possession is merely incidental. ELUMBA further
argues that the action is one in personam and not in rem. Therefore
venue may be laid in the place where plaintiff or defendant resides
at the option of plaintiff.
Private respondent appears to be confused over the difference
between
personal
and
real
actions vis-a-visactions in
personam and in rem. The former determines venue; the latter, the
binding effect of a decision the court may render over the party,
whether impleaded or not.
In the case before us, it is indubitable that the action instituted by
private respondent against petitioner affects the parties alone, not
the whole world. Hence, it is an action in personam, i.e., any
judgment therein is binding only upon the parties properly
9
impleaded. However, this does not automatically mean that the
action for damages and to fix the period of the lease contract is also
a personal action. For, a personal action may not at the same time
10
be an action in rem. In Hernandez v. Rural Bank of Lucena, Inc., we
held thus
In a personal action, the plaintiff seeks the
recovery of personal property, the enforcement
of a contract or the recovery of damages. In a
real action, the plaintiff seeks the recovery of
real property, or, as indicated in section 2(a) of
Rule 4, a real action is an action affecting title to
real property or for the recovery of possession,
or for partition or condemnation of, or
foreclosure of a mortgage on, real property.
An action in personam is an action against a
person on the basis of his personal liability, while
an action in rem is an action against the thing
itself, instead of against the person. Hence, a
real action may at the same time be an action in
personam and not necessarily an action in rem.
Consequently, the distinction between an action in personam and an
action in rem for purposes of determining venue is irrelevant.
Instead, it is imperative to find out if the action filed is a personal
action or real action. After all, personal actions may be instituted in
the Regional Trial Court (then Court of First Instance) where the
defendant or any of the defendants resides or may be found, or
where the plaintiff or any of the plaintiffs resides, at the election of
11
the plaintiff. On the other hand, real actions should be brought
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CIVIL PROCEDURE

before the Regional Trial Court having jurisdiction over the territory
12
in which the subject property or part thereof lies.
While the instant action is for damages arising from alleged breach
of the lease contract, it likewise prays for the fixing of the period of
lease at five (5) years. If found meritorious, private respondent will
be entitled to remain not only as lessee for another five (5) years but
also to the recovery of the portion earlier taken from him as well.
This is because the leased premises under the original contract was
the whole commercial space itself and not just the subdivided
portion thereof.
While it may be that the instant complaint does not explicitly pray
for recovery of possession, such is the necessary consequence
13
thereof. The instant action therefore does not operate to efface
the fundamental and prime objective of the nature of the case
which is to recover the one-half portion repossessed by the lessor,
14
herein petitioner. Indeed, where the ultimate purpose of an action
involves title to or seeks recovery of possession, partition or
condemnation of, or foreclosure of mortgage on, real
15
property, such an action must be deemed a real action and must
perforce be commenced and tried in the province where the
property or any part thereof lies.
Respondent judge, therefore, in denying petitioner's Motion to
Dismiss gravely abused his discretion amounting to lack or excess of
jurisdiction.
WHEREFORE, the Petition for Prohibition is GRANTED. The Orders of
6 November 1978 and 4 December 1978 of respondent Judge
Dimalanes B. Buissan are SET ASIDE. The branch of the Regional Trial
Court of Dipolog City where Civil Case No. 2901 may be presently
assigned is DIRECTED to DISMISS the case for improper venue. This
decision is immediately executory.
Costs against private respondent ELUMBA INDUSTRIES COMPANY.
SO ORDERED.

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G.R. No. L-22136

CIVIL PROCEDURE

December 17, 1924

RAMON
LOPEZ, petitioner-appellee,
vs.
THE DIRECTOR OF LANDS, respondent-appellant.
Attorney-General
Villa-Real
Antonio Gonzalez for appellee.

for

appellant.

JOHNSON, J.:
The principal question presented by this appeal is whether the
sale of land in the City of Manila, under the procedure adopted for
the recovery of delinquent taxes, has the effect of cutting off all
prior liens upon the property sold.
The whole story of this action may be told in a few words. The City
of Manila, by a decision of the court a quo, in the collection of a land
tax of P30.35, by the method permitted by the Administrative Code,
deprived the Director of the Bureau of Lands, a bureau of the Insular
Government, of a prior lien, in the sum of P1,190, in the form of a
mortgage duly registered, which mortgage lien existed before the
tax lien in question.
The facts stated more in detail, out of which such an anomalous
condition resulted, are as follows: On January 12, 1924, Ramon
Lopez filed a petition in the Court of First Instance of the City of
Manila, containing, among others, the following allegations:
(a) That on November 7, 1922, one of two parcels of land belonging
to Rufo de Jesus, situated in the district of Pandacan, City of Manila,
included within certificate of title No. 2458, was sold by the city
assessor and collector at public auction for the sum of P30.35 for the
payment of taxes due thereon, corresponding to the years 1920,
1921, and 1922, to the petitioner Ramon Lopez, as the highest
bidder. There is nothing in the record showing whether the method
prescribed for selling property for delinquent taxes was followed or
not. We may presume, however, that the procedure was followed.
(b) That the owner, Rufo de Jesus, having failed to redeem said one
parcel of land within one year from the date of the sale, the sale, it is
contended, became absolute and the city assessor and collector on
the 8th day of November, 1923, executed in favor of Ramon Lopez,
as purchaser of said one lot, a deed conveying to him the title
thereto, free from all liens of any kind whatsoever.
(c) That Ramon Lopez presented said deed to the registrar of deeds
of the City of Manila, requesting that the certificate of title No. 2458,
then in the name of Rufo de Jesus, be cancelled insofar as it
recovered the said second parcel, and that a new title be issued
therefor in his name, free from all liens and incumbrances of any
kind whatsoever, in accordance with section 2500 of the
Administrative Code.
(d) That the registrar of deeds denied said request, first, because the
petitioner did not present the duplicate certificate of said title No.
2458; second, because on said title there appeared a notation of a
mortgage executed by said Rufo de Jesus in favor of the Government
of the Philippine Islands, represented by the Director of Lands, to

secure a debt of P1,190, which still remained unpaid; and, third,

because in the absence of an order of the Court of First Instance to
that effect, he could not issue a new certificate of title for said lot,
free from the encumbrance of said mortgage.
(e) That a demand had been made upon Rufo de Jesus for the
delivery of said certificate of title and that he had made no response
to said request; that the petitioner did not know whether such
certificate of title was in the possession of Rufo de Jesus or of the
Director of Lands, as the representative of the Government of the
Philippine Islands, the owner and holder of said mortgage; and that
the Director of Lands or the said Rufo de Jesus be required to deliver
to the registrar of deeds said certificate of title No. 2458 for
cancellation.
(f) It is contended by the petitioner that in accordance with the
provisions of section 2500 of the Administrative Code, he was
entitled to a new certificate of title covering said parcel of land sold
for taxes, and that said new certificate should be issued free from all
incumbrances whatsoever; that the Government of the Philippine
Islands or its representative, the Director of Lands, could not claim
any lien over said parcel of land so sold for taxes under the
provisions of section 2497 of the Administrative Code.
Upon the foregoing facts, the petitioner prayed: First, that an order
be issued directing the registrar of deeds of the City of Manila to
cancel said certificate of title No. 2458, insofar as it affected the
second parcel; second, that a new certificate of title be issued in the
name of Ramon Lopez, free from all liens and encumbrances of any
kind whatsoever; and third, that either the Director of Lands or Rufo
de Jesus, as the case may be, be required to deliver the duplicate
certificate of title No. 2458 to the registrar of deeds for cancellation.
This action was commenced in the Court of First Instance of the City
of Manila on the 12th day of January, 1924. The only proof of service
of the commencement of said action is, that a copy of the petition
was left at the residence of Rufo de Jesus in Pandacan, in the hands
of a person residing at his residence, which person refused to sign a
receipt for said petition. The record contains no proof that the
Government of the Philippine Islands or the Director of Lands was
served with a copy of the petition or had any notice of its
presentation. Notwithstanding that fact, however a hearing was
held on said petition on the 17th day of January, 1924, at 8 o'clock
a.m. The record does show, however, that at said hearing there
appeared the attorney for the petitioner, and Mr. Javier Gonzalez,
attorney for the Director of Lands. No other persons appeared. The
Director of Lands, according to a memorandum by the court a quo,
conceded that a new certificate of title should be issued in favor of
the petitioner, but that there should be noted thereon the lien held
by the Government of the Philippine Islands for the sum of P1,190,
invoking, in aid of his petition, article 17 of the Mortgage Law and
section 39 and 51 of Act No. 496.
Upon the issue thus presented, the court a quo on the 18th day of
January, 1924, issued an order directing the Director of Lands to
deliver to the registrar of deeds of the City of Manila within five days
the duplicate certificate of title No. 2458, and ordered the said
registrar of deeds to cancel the same and to issue a new certificate
of title to said parcel of land in favor of Ramon Lopez, without
nothing thereon the existence of said mortgage in favor of the
Director of Lands, and to issue a new certificate to the other parcel
of land to Rufo de Jesus and to note on said new certificate the
existence of said mortgage. There is nothing of record showing the
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separate value of said two lots, and for the purposes of this
discussion it is not necessary.
On the second day of February, 1924, the Attorney-General
appeared on behalf of the Director of Lands and prayed for a
reconsideration of the decision of the 18th day of January, 1924.
Said motion was based upon the ground that the petitioner, Ramon
Lopez, was not entitled to have a new certificate of title issued to
him, free from all liens whatsoever upon said second parcel of land
mortgaged by Rufo de Jesus to the Director of Lands, for the reason
that he had acquired said property at public sale and that he could
by no means have a better title than the owner of the land at the
time of said sale. The Attorney-General, in support of his motion,
relied upon the decision of this court in the case of Government of
the Philippine Islands vs. Adriano (41 Phil., 112) and sections 77 and
80 of Act No. 82. The Attorney-General prayed that the order of
January 18th be modified to the effect that the new title to be
issued to Ramon Lopez for said parcel No. 2 should bear a notation
of the existence of said mortgage in favor of the Government of the
Philippine Islands or the Director of Lands.
After a consideration of the motion of the Attorney-General and the
opposition thereto, the Honorable C.A. Imperial, on the 6th day of
February, 1924, denied the same. The Attorney-General, after duly
excepting to the judgment and order denying the motion for
rehearing, appealed and made several assignments of error.
The Attorney-General, in his first assignment of error, contends that
"the lower court erred in not holding that the tax proceeding under
which Ramon Lopez claims an indefeasible title is a proceeding in
personam and not in rem."
An examination of practically all of the authorities has been made
upon the question whether or not the proceeding for the collection
of taxes upon real estate is an action in personam or an action in
rem. The result of that examination is, that the authorities are about
equally divided. Some hold that the proceeding is an action in
personam while others hold that it is an action in rem. In this
jurisdiction, by virtue of the procedure adopted in relation with the
remedy given, we have held in the case of Government of the
Philippine Islands vs. Adriano,supra, that the proceedings here are in
personam and not in rem. (Valencia vs. Jimenez and Fuster, 11 Phil.,
492.)lawphi1.net
An action in rem may be defined as an action or proceeding
instituted against a thing and not against a particular person. (In
re Storey's Will, 20 III. App., 183, 190.)
Chief Justice Marshall, in discussing an action in rem, said: "I have
always understood that where a process is to be served on the thing
itself, by the service of a process and making proclamation, the court
is authorized to decide upon it (the thing) without notice to any
individual defendant, to which all the world are parties. The claimant
is a party, whether he speaks or is silent, whether he asserts his
claim or abandons it." Decisions in such cases are binding and
conclusive, not only on the parties litigating, but on all others. Every
one who can possibly be affected by the decision has a right to
appear and assert his own rights by becoming an actual party to the
proceeding. (Cunningham vs. Shanklin, 60 Cal., 118, 125.)
A proceeding in rem, in a strict sense, is one taken strictly against
property, and has for its object the disposition of the property,

CIVIL PROCEDURE
without reference to the title of individual claimants. But in a larger
and more general sense the phrase "proceeding in rem" is applied to
actions between parties, where the direct object is to reach and
dispose of property owned by them, or of some interest therein.
(Arndt vs. Griggs, 134 U.S., 316.)
A proceeding brought to determine the status of a particular thing
itself and which is confined to the subject-matter in specie, is in rem,
the judgment being intended to determine the state or condition,
and, pro facto, to render the thing what the judgment declares it to
be. Process may be served on the thing itself and by such service
and making proclamation, the court is authorized to decide upon it
without notice to persons, all the world being parties. (Cross vs.
Armstrong, 44 Ohio St., 613; Woodruff vs. Taylor, 20 Vt., 63, 73.)
A "judgment in rem" is an adjudication pronounced upon the state
of some particular subject-matter by a court having competent
authority for that purpose; while a "judgment in personam" is, in
form as well as in substance, between persons claiming a particular
right, and that it is so inter parties, appears by the record itself. A
"judgmentin rem" differs from a "judgment in personam" in this,
that the latter is, in form as well as substance, between the parties
claiming the right, and that it is so inter parties, appears by the
record, and it is binding only upon the parties appearing to be such
by the record, and those claiming by them. But a "judgment in rem"
is founded upon a proceeding instituted not against the person as
such but against or upon a particular thing or subject-matter, whose
state or condition is to be determined, and a judgment is a solemn
declaration upon the status of the thing and it ipso facto renders it
what it declares it to be. (Woodruff vs. Taylor, supra.)
In a "judgment in personam" when property is sold thereunder at
public auction, the rights of the owner only are sold, while in a
"judgment in rem" the res itself is sold.
An examination of the remedies for the collection of unpaid
municipal taxes shows that different states have adopted different
methods. The methods may be summarized as: First, an action to
recover personal judgment; second, an action to enforce a lien on
land; third, a summary sale of the property on which the taxes are in
lien; and, fourth, by distraint. In the Philippine Islands the Legislature
has adopted practically the third method, by a summary sale of the
property on which the taxes have become a lien by advertising and a
sale at public auction. Under that system the City of Manila may sell
either personal property or the land upon which the tax exists. The
City of Manila may use its discretion either by proceeding against
the personal property of the taxpayer or against the land upon
which the tax has been levied. The fact that the City of Manila has
the option of proceeding against the real or personal property,
evidently is the fact which induced this court in the two decisions
cited above (Government of the Philippine Islands vs.
Adriano, supra; Valencia vs. Jimenez, and Fuster, supra), to decide
that in this jurisdiction the action to collect delinquent taxes upon
real property is an action in personam and not in rem.
In jurisdictions where the action to recover delinquent taxes upon
land is an action in personam, the tax title issued thereunder is
purely a derivative title and such a deed conveys only such title as
was vested in the delinquent taxpayer. Government of the
Philippine Islands vs. Adriano, supra; McDonald vs. Hanna, 51 Fed.
Rep., 73.)

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The purchaser at a tax sale gets no better title under his deed than
was held by the person assessed. It is not disputed that the state
may decide what shall be liens upon property and what shall be the
priority thereof. Yet, nevertheless, a foreclosure of such liens cannot
operate to destroy other liens without a proceeding, which we are
taught to denominate, under the organic law, as "due process of
law."
By "due process of law," as Mr. Daniel Webster said in his argument
before the Supreme Court of the United States in the famous
Dartmouth College Case, is "by the law of the land ... a law which
hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial. The remaining is, that every citizen
shall hold his life, liberty, property, and immunities, under the
protection of the general rules which govern society." (4 Wheaton,
U.S., 518, 581.) "Due process of law" contemplates notice and
opportunity to be heard before judgment is rendered, affecting
one's person or property. "Due process of law" is not every act,
legislative in form, that is, law. Arbitrary power, enforcing its edicts
to the injury of the persons and property of the citizens, is not
law.lawphi1.net

CIVIL PROCEDURE
Our conclusions are: First, that under the procedure adopted in the
present case the Government of the Philippine Islands, as presented
by the Director of Lands, has not been deprived of its mortgage lien
upon the property in question; second, that the judgment of the
court a quo, depriving it of its lien without notice and an opportunity
to be heard, is null and void.
Therefore, it is hereby ordered and decreed that the judgment
appealed from should be, and is hereby pronounced null and void,
and it is further ordered and decreed that the record be returned to
the court whence it came, with direction that a new certificate of
title be issued for the one parcel of land in question to the plaintiff,
Ramon Lopez, with an annotation thereon of the mortgage lien held
by the appellant.

While it is true that section 2500 of Act No. 2711 provides that, in
case the taxpayer shall not redeem the realty sold for the payment
of delinquent taxes within one year from the date of the sale, the
city assessor and collector shall execute a deed, in form and effect
sufficient to convey to the purchaser so much of the real estate,
against which the taxes have been assessed, as has been sold, free
from all liens of any kind whatsoever, the Legislature certainly did
not intend that persons who hold a lien against such land should be
deprived thereof without a notice and an opportunity to be heard
before their lien could be nullified. No rule is better established,
under the due-process-of-law provision of the organic law of the
land, than the one which requires notice and an opportunity to be
heard before any citizen of the state can be deprived of his rights.
That is the rule, whether the action is in personam or in rem, with
the exception that in an action in rem substituted service may be
had. Pennoyer vs. Neff, 95 U.S., 714; Kilbourn vs. Thompson, 103
U.S., 168.)
As was stated above, the legislature of the state has a perfect right
to determine what shall constitute liens upon property and the
priority thereof. The mere fact, however, that A has, under the law,
a prior lien upon the property of B, does not justify him in taking
arbitrary possession of said property without notice and an
opportunity to be heard by subsequent lien holders, if there are any.
To permit such proceedings would allow a violation of one of the
fundamental rights of the citizens of the state.
In the present case the appellant had no notice whatever of the
proceedings by which his lien was nullified, and of course no
opportunity to defend his rights until after the issuance of the deed
by the city assessor and collector to the appellee, by which the latter
obtained a deed "free from all liens of any kind whatsoever" by
virtue of which the appellant was deprived of his rights. We cannot
give our assent to a procedure by which citizens of the Philippine
Islands may be deprived of their rights without a notice and an
opportunity to defend them.
In view of the foregoing conclusions, we deem it unnecessary to
discuss the other assignments of error of the appellant.

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G.R. No. 158407

CIVIL PROCEDURE

January 17, 2005

FILOMENA
vs.
VIVIAN LAYNO JENSEN, respondent.

fee; exemplary damages in the amount of TWENTY

THOUSAND (P20,000.00) PESOS, and, costs.
DOMAGAS, petitioner,

DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari, under Rule 45 of the Rules
1
of Court, of the Decision of the Court of Appeals (CA) in CA-G.R. CV
2
No. 73995, which affirmed the Decision of the Regional Trial Court
(RTC) of Dagupan City, Branch 44, in Civil Case No. 2000-0244-D,
which declared null and void the decision of the Municipal Trial
3
Court (MTC) of Calasiao, Pangasinan in Civil Case No. 879.
The antecedent facts follow.
On February 19, 1999, petitioner Filomena Domagas filed a
complaint for forcible entry against respondent Vivian Jensen before
the MTC of Calasiao, Pangasinan. The petitioner alleged in her
complaint that she was the registered owner of a parcel of land
covered by Original Certificate of Title (OCT) No. P-30980, situated in
Barangay Buenlag, Calasiao, Pangasinan, and with an area of 827
square meters. On January 9, 1999 the respondent, by means of
force, strategy and stealth, gained entry into the petitioners
property by excavating a portion thereof and thereafter constructing
a fence thereon. As such, the petitioner was deprived of a 68-square
meter portion of her property along the boundary line. The
petitioner prayed that, after due proceedings, judgment be
rendered in her favor, thus:
3. And, after trial, judgment be rendered:
a) DECLARING the writ of Preliminary Mandatory
Injunction and Writ of Preliminary Injunction permanent;
b) ORDERING defendant, his representatives, agents and
persons acting under her, to vacate the portion of the
property of the plaintiff occupied by them and to desist
from entering, excavating and constructing in the said
property of the plaintiff described in paragraph 2 hereof
and/or from disturbing the peaceful ownership and
possession of the plaintiff over the said land, pending the
final resolution of the instant action;
c) ORDERING defendant to pay reasonable rental at FIVE
THOUSAND (P5,000.00) PESOS per month from January 9,
1999 up to the time she finally vacates and removes all
constructions made by her in the property of the plaintiff
and up to the time she finally restores the said property in
the condition before her illegal entry, excavation and
construction in the property of the plaintiff;
d) ORDERING defendant to pay actual damages in the
amount of TWENTY THOUSAND (P20,000.00) PESOS; moral
damages in the amount of TWENTY THOUSAND
(P20,000.00) PESOS; attorneys fees of THIRTY THOUSAND
(P30,000.00) PESOS in retainers fee and ONE THOUSAND
FIVE HUNDRED (P1,500.00) PESOS per court appearance

Plaintiff further prays for other reliefs and remedies just and
4
equitable in the premises.
The case was docketed as Civil Case No. 879. The summons and the
complaint were not served on the respondent because the latter
was apparently out of the country. This was relayed to the Sheriff by
her (the respondents) brother, Oscar Layno, who was then in the
respondents house at No. 572 Barangay Buenlag, Calasiao,
Pangasinan. The Sheriff left the summons and complaint with Oscar
5
Layno, who received the same.
Nonetheless, on May 17, 1999, the court rendered judgment
ordering the respondent and all persons occupying the property for
and in the latters behalf to vacate the disputed area and to pay
monthly rentals therefor, including actual damages, attorneys fees,
and exemplary damages. The fallo of the decision reads:
1) Ordering the defendant, her representatives, agents
and persons acting under her, to vacate the 68-square
meters which she encroached upon;
2) Ordering the defendant to pay a monthly rental
of P1,000.00 to the plaintiff;
3) To pay plaintiff actual damages of P20,000.00;
attorneys fees of P15,000.00 and exemplary damages in
the amount of P20,000.00 plus the costs.
SO ORDERED.

The respondent failed to appeal the decision. Consequently, a writ

of execution was issued on September 27, 1999.
On August 16, 2000, the respondent filed a complaint against the
petitioner before the RTC of Dagupan City for the annulment of the
decision of the MTC in Civil Case No. 879, on the ground that due to
the Sheriffs failure to serve the complaint and summons on her
because she was in Oslo, Norway, the MTC never acquired
jurisdiction over her person. The respondent alleged therein that the
service of the complaint and summons through substituted service
on her brother, Oscar Layno, was improper because of the following:
(a) when the complaint in Civil Case No. 879 was filed, she was not a
resident of Barangay Buenlag, Calasiao, Pangasinan, but of Oslo,
Norway, and although she owned the house where Oscar Layno
received the summons and the complaint, she had then leased it to
Eduardo Gonzales; (b) she was in Oslo, Norway, at the time the
summons and the complaint were served; (c) her brother, Oscar
Layno, was merely visiting her house in Barangay Buenlag and was
not a resident nor an occupant thereof when he received the
complaint and summons; and (d) Oscar Layno was never authorized
7
to receive the summons and the complaint for and in her behalf.
The respondent further alleged that the MTC had no jurisdiction
over the subject matter of the complaint in Civil Case No. 879
because the petitioner, the plaintiff therein, failed to show prior
possession of the property. She further claimed that the alleged
forcible entry was simply based on the result of the survey
conducted by Geodetic Engineer Leonardo de Vera showing that the
property of the respondent encroached on that of the petitioner.
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CIVIL PROCEDURE

The respondent filed a Manifestation dated August 31, 2000, and

8
appended thereto the following: (a) a copy of her passport showing
9
that she left the country on February 17, 1999; (b) a copy of the
Contract of Lease dated November 24, 1997, executed by her and
Eduardo D. Gonzales over her house for a period of three (3) years
10
or until November 24, 2000; (c) her affidavit stating, inter alia, that
she owned the house at Barangay Buenlag, Calasiao, Pangasinan,
which she leased to Eduardo Gonzales; that she was married to Jarl
Jensen, a citizen of Norway, on August 23, 1987 and had resided in
Norway with her husband since 1993; that she arrived in the
Philippines on December 31, 1998, but left on February 17, 1999;
she returned to the Philippines on July 30, 2000 and learned, only
then, of the complaint against her and the decision of the MTC in
Civil Case No. 879; her brother Oscar Layno was not a resident of the
house at Barangay Buenlag; and that she never received the
11
complaint and summons in said case; (d) the affidavit of Oscar
Layno declaring that sometime in April 1999, he was in the
respondents house to collect rentals from Eduardo Gonzales; that
the Sheriff arrived and served him with a copy of the summons and
the complaint in Civil Case No. 879; and that he never informed the
respondent of his receipt of the said summons and complaint; (e) an
12
affidavit of Eduardo Gonzales stating that he leased the house of
the respondent and resided thereat; the respondent was not a
resident of the said house although he (Gonzales) allowed the
respondent to occupy a room therein whenever she returned to the
Philippines as abalikbayan; and that Oscar Layno was not residing
therein but only collected the rentals.
In her answer to the complaint, the petitioner alleged that the
respondent was a resident of Barangay Buenlag, Calasiao,
Pangasinan and was the owner of the subject premises where Oscar
Layno was when the Sheriff served the summons and complaint;
that the service of the complaint and summons by substituted
service on the respondent, the defendant in Civil Case No. 879, was
proper since her brother Oscar Layno, a resident and registered
voter of Barangay. Buenlag, Calasiao, Pangasinan, received the
complaint and summons for and in her behalf.
13

The petitioner appended the following to her answer: (a) a copy of

the Deed of Absolute Sale executed by Jose Layno in her favor,
dated August 26, 1992, showing that the respondent was a resident
of Barangay Buenlag, Calasiao, Pangasinan; (b) a Real Estate
14
Mortgage executed by the respondent, dated February 9, 1999
showing that she was a resident of Barangay Buenlag, Calasiao,
15
Pangasinan; (c) the Joint Affidavit of Vicenta Peralta and Orlando
Macalanda, both residents of Barangay Buenlag, Calasiao,
Pangasinan, declaring that the respondent and her brother Oscar
Layno were their neighbors; that the respondent and her brother
had been residents of Barangay Buenlag since their childhood; that
although the respondent left the country on several occasions, she
returned to the Philippines and resided in her house at No. 572
located in the said barangay; and (d) the Voters Registration
16
Record of Oscar Layno, approved on June 15, 1997.
After due proceedings, the trial court rendered a decision in favor of
the respondent. The dispositive portion reads:
WHEREFORE, judgment is rendered in favor of plaintiff Vivian Layno
Jensen and against defendant Filomena Domagas, as follows:
1. The Decision of the Municipal Trial Court of Calasiao,
Pangasinan in Civil Case No. 879, entitled Filomena
Domagas versus Vivian Layno Jensen is declared null and

void, for lack of jurisdiction over the person of the plaintiff

and the subject matter.
2. Defendant Filomena Domagas is ordered to pay
plaintiff, the following:
a.) Actual damages, representing litigation
expenses in the amount of P50,000.00;
b.) Attorneys fees in the amount of P50,000.00;
c.) Moral Damages in the amount of P50,000.00;
d.) Exemplary Damages
of P50,000.00; and

in

the

amount

e.) Costs of suit.

SO ORDERED.

17

The trial court declared that there was no valid service of the
complaint and summons on the respondent, the defendant in Civil
Case No. 879, considering that she left the Philippines on February
17, 1999 for Oslo, Norway, and her brother Oscar Layno was never
authorized to receive the said complaint and summons for and in
her behalf.
The petitioner appealed the decision to the CA which, on May 6,
2003, rendered judgment affirming the appealed decision with
modifications. The CA ruled that the complaint in Civil Case No. 879
was one for ejectment, which is an action quasi in rem. The
appellate court ruled that since the defendant therein was
temporarily out of the country, the summons and the complaint
should have been served via extraterritorial service under Section 15
in relation to Section 16, Rule 14 of the Rules of Court, which
likewise requires prior leave of court. Considering that there was no
prior leave of court and none of the modes of service prescribed by
the Rules of Court was followed by the petitioner, the CA concluded
that there was really no valid service of summons and complaint
upon the respondent, the defendant in Civil Case No. 879.
Hence, the present petition.
The petitioner assails the decision of the CA, alleging that the
appellate court erred in holding that the respondents complaint for
ejectment is an action quasi in rem. The petitioner insists that the
complaint for forcible entry is an action in personam; therefore,
substituted service of the summons and complaint on the
respondent, in accordance with Section 7, Rule 14 of the Rules of
Court, is valid. The petitioner, likewise, asserts that Oscar Layno is a
resident and a registered voter of Barangay Buenlag, Calasiao,
Pangasinan; hence, the service of the complaint and summons on
the respondent through him is valid.
The respondent, on the other hand, asserts that the action for
forcible entry filed against her was an action quasi in rem, and that
the applicable provision of the Rules of Court is Section 15 of Rule
14, which calls for extraterritorial service of summons.
The sole issue is whether or not there was a valid service of the
summons and complaint in Civil Case No. 879 on the respondent
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FULL TEXT CASES - ACTION

herein who was the defendant in the said case. The resolution of the
matter is anchored on the issue of whether or not the action of the
petitioner in the MTC against the respondent herein is an action
inpersonam or quasi in rem.
The ruling of the CA that the petitioners complaint for forcible entry
of the petitioner against the respondent in Civil Case No. 879 is an
action quasi in rem, is erroneous. The action of the petitioner for
forcible entry is a real action and one in personam.
The settled rule is that the aim and object of an action determine its
18
character. Whether a proceeding is in rem, or in personam,
or quasi in rem for that matter, is determined by its nature and
19
purpose, and by these only. A proceeding in personam is a
proceeding to enforce personal rights and obligations brought
against the person and is based on the jurisdiction of the person,
although it may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose of it in
20
accordance with the mandate of the court. The purpose of a
proceeding in personam is to impose, through the judgment of a
court, some responsibility or liability directly upon the person of the
21
defendant. Of this character are suits to compel a defendant to
specifically perform some act or actions to fasten a pecuniary
22
liability on him. An action in personam is said to be one which has
for its object a judgment against the person, as distinguished from a
judgment against the propriety to determine its state. It has been
held that an action in personam is a proceeding to enforce personal
rights or obligations; such action is brought against the person. As
far as suits for injunctive relief are concerned, it is well-settled that it
23
24
is an injunctive act in personam. In Combs v. Combs, the
appellate court held that proceedings to enforce personal rights and
obligations and in which personal judgments are rendered adjusting
the rights and obligations between the affected parties is
in personam. Actions for recovery of real property are in
25
personam.
On the other hand, a proceeding quasi in rem is one brought against
persons seeking to subject the property of such persons to the
26
discharge of the claims assailed. In an action quasi in rem, an
individual is named as defendant and the purpose of the proceeding
is to subject his interests therein to the obligation or loan burdening
27
the property. Actions quasi in rem deal with the status, ownership
or liability of a particular property but which are intended to operate
on these questions only as between the particular parties to the
proceedings and not to ascertain or cut off the rights or interests of
all possible claimants. The judgments therein are binding only upon
28
the parties who joined in the action.

CIVIL PROCEDURE
persons claiming under them, for the restitution of such possession,
together with damages and costs.
Under Section 15, Rule 70 of the said Rule, the plaintiff may be
granted a writ of preliminary prohibition or mandatory injunction:
Sec. 15. Preliminary Injunction. The court may grant preliminary
injunction, in accordance with the provisions of Rule 58 hereof, to
prevent the defendant from committing further acts of
dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry or
unlawful detainer may, within five (5) days from the filing of the
complaint, present a motion in the action for forcible entry or
unlawful detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his possession. The court
shall decide the motion within thirty (30) days from the filing
thereof.
If, after due proceedings, the trial court finds for the plaintiff, it shall
then render judgment in his or her favor, thus:
Sec. 17. Judgment. If, after trial, the court finds that the allegations
of the complaint are true, it shall render judgment in favor of the
plaintiff for the restitution of the premises, the sum justly due as
arrears of rent or as reasonable compensation for the use and
occupation of the premises, attorneys fees and costs. If it finds that
said allegations are not true, it shall render judgment for the
defendant to recover his costs. If a counterclaim is established, the
court shall render judgment for the sum found in arrears from either
party and award costs as justice requires.
From the aforementioned provisions of the Rules of Court and by its
very nature and purpose, an action for unlawful detainer or forcible
entry is a real action and in personam because the plaintiff seeks to
enforce a personal obligation or liability on the defendant under
29
Article 539 of the New Civil Code, for the latter to vacate the
property subject of the action, restore physical possession thereof to
the plaintiff, and pay actual damages by way of reasonable
30
compensation for his use or occupation of the property.
As gleaned from the averments of the petitioners complaint in the
MTC, she sought a writ of a preliminary injunction from the MTC and
prayed that the said writ be made permanent. Under its decision,
the MTC ordered the defendant therein (the respondent in this
case), to vacate the property and pay a "monthly rental"
ofP1,000.00 to the plaintiff therein (the petitioner in this case).

Section 1, Rule 70 of the Rules of Court provides:

Section 1. Who may institute proceedings, and when. - Subject to
the provisions of the next succeeding section, a person deprived of
the possession of any land or building in force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold
possession by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or
other person, may, at any time within one (1) year after such
unlawful deprivation or withholding of possession, bring an action in
the proper Municipal Trial Court against the person or persons
unlawfully withholding or depriving of possession, or any person or

On the issue of whether the respondent was validly served with the
summons and complaint by the Sheriff on April 5, 1999, the
petitioner asserts that since her action of forcible entry against the
respondent in Civil Case No. 879 was in personam, summons may be
served on the respondent, by substituted service, through her
brother, Oscar Layno, in accordance with Section 7, Rule 14 of the
Rules of Court. The petitioner avers that Oscar Layno, a person of
suitable age and discretion, was residing in the house of the
respondent on April 5, 1999. She avers that the fact that the house
was leased to and occupied by Eduardo Gonzales was of no
moment. Moreover, the Sheriff is presumed to have performed his
duty of properly serving the summons on the respondent by
substituted service.

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FULL TEXT CASES - ACTION

CIVIL PROCEDURE

The contention of the petitioner has no merit.

31

In Asiavest Limited v. Court of Appeals , the Court had the occasion

to state:
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the
case. Jurisdiction over the person of a resident defendant who does
not voluntarily appear in court can be acquired by personal service
of summons as provided under Section 7, Rule 14 of the Rules of
Court. If he cannot be personally served with summons within a
reasonable time, substituted service may be made in accordance
with Section 8 of said Rule. If he is temporarily out of the country,
any of the following modes of service may be resorted to: (a)
substituted service set forth in Section 8; (2) personal service
outside the country, with leave of court; (3) service by publication,
also with leave of court; or (4) any other manner the court may
32
deem sufficient.
Thus, any judgment of the court which has no jurisdiction over the
33
person of the defendant is null and void.
In the present case, the records show that the respondent, before
and after his marriage to Jarl Jensen on August 23, 1987, remained a
resident of Barangay Buenlag, Calasiao, Pangasinan. This can be
gleaned from the Deed of Absolute Sale dated August 26, 1992 in
which she declared that she was a resident of said barangay.
Moreover, in the Real Estate Mortgage Contract dated February 9,
1999, ten days before the complaint in Civil Case No. 879 was filed,
the petitioner categorically stated that she was a Filipino and a
resident of Barangay Buenlag, Calasiao, Pangasinan. Considering
that the respondent was in Oslo, Norway, having left the Philippines
on February 17, 1999, the summons and complaint in Civil Case No.
879 may only be validly served on her through substituted service
under Section 7, Rule 14 of the Rules of Court, which reads:
SEC. 7. Substituted service. If, for justifiable causes, the defendant
cannot be served within a reasonable time as provided in the
preceding section, service may be effected (a) by leaving copies of
the summons at the defendants residence with some person of
suitable age and discretion then residing therein, or (b) by leaving
the copies at defendants office or regular place of business with
some competent person in charge thereof.
Strict compliance with the mode of service is required in order that
the court may acquire jurisdiction over the person of the
34
defendant. The statutory requirement of substituted service must
be followed faithfully and strictly and any substituted service other
35
than that authorized by the statute is rendered ineffective. As the
36
Court held in Hamilton v. Levy :
The pertinent facts and circumstances attendant to the service of
summons must be stated in the proof of service or Officers Return;
otherwise, any substituted service made in lieu of personal service
cannot be upheld. This is necessary because substituted service is in
derogation of the usual method of service. It is a method
extraordinary in character and hence may be used only as
prescribed and in the circumstances authorized by statute. Here, no
such explanation was made. Failure to faithfully, strictly, and fully
comply with the requirements of substituted service renders said
37
service ineffective.

38

In Keister v. Narcereo, the Court held that the term "dwelling

house" or "residence" are generally held to refer to the time of
service; hence, it is not sufficient to leave the summons at the
formers dwelling house, residence or place of abode, as the case
may be. Dwelling house or residence refers to the place where the
person named in the summons is living at the time when the service
is made, even though he may be temporarily out of the country at
the time. It is, thus, the service of the summons intended for the
defendant that must be left with the person of suitable age and
discretion residing in the house of the defendant. Compliance with
the rules regarding the service of summons is as much important as
39
the issue of due process as of jurisdiction.
The Return of Service filed by Sheriff Eduardo J. Abulencia on the
service of summons reads:
Respectfully returned to the court of origin the herein summons and
enclosures in the above-entitled case, the undersigned caused the
service on April 5, 1999.
Defendant Vivian Layno Jensen is out of the country as per
information from her brother Oscar Layno, however, copy of
summons and enclosures was received by her brother Oscar Layno
on April 5, 1999 as evidenced by his signature appearing in the
original summons.
Calasiao, Pangasinan, April 6, 1999.
(Sgd.)
EDUARDO J. ABULENCIA
Junior Process Server

40

As gleaned from the said return, there is no showing that as of April

5, 1999, the house where the Sheriff found Oscar Layno was the
latters residence or that of the respondent herein. Neither is there
any showing that the Sheriff tried to ascertain where the residence
of the respondent was on the said date. It turned out that the
occupant of the house was a lessor, Eduardo Gonzales, and that
Oscar Layno was in the premises only to collect the rentals from
him. The service of the summons on a person at a place where he
was a visitor is not considered to have been left at the residence or
place or abode, where he has another place at which he ordinarily
41
stays and to which he intends to return.
The Voters Registration Record of Oscar Layno dated June 15, 1997
wherein he declared that he was a resident of No. 572 Barangay
Buenlag, Calasiao, Pangasinan, as well as the Joint Affidavit of
Vicenta Peralta and Orlando Macasalda cannot prevail over the
Contract of Lease the respondent had executed in favor of Eduardo
Gonzales showing that the latter had resided and occupied the
house of the respondent as lessee since November 24, 1997, and
the affidavit of Eduardo Gonzales that Oscar Layno was not residing
in the said house on April 5, 1999. In sum, then, the respondent was
not validly served with summons and the complaint in Civil Case No.
879 on April 5, 1999, by substituted service. Hence, the MTC failed
to acquire jurisdiction over the person of the respondent; as such,
the decision of the MTC in Civil Case No. 879 is null and void. IN
LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. No costs. SO ORDERED.

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FULL TEXT CASES - ACTION

G.R. No. L-34314 May 13, 1975
SOFIA
PASTOR
DE
MIDGELY, petitioner,
vs.
THE HONORABLE PIO B. FERANDOS, Judge of the Court of First
Instance of Cebu, Branch IX and LEWELYN BARLITO QUEMADA,
Special Administrator of the Testate and Intestate Estate of
ALVARO PASTOR Y TATO, respondents.
Abelardo P. Cecilio for petitioner.
Efipanio A. Anoos for private respondents.

AQUINO, J.:+.wph!1
Sofia Pastor de Midgely, a British subject residing at Cura Planelles,
10 Cura Jardin, Alicante, Spain, filed this special civil action
of certiorari against Judge Pio B. Ferandos and Lewelyn Barlito
Quemada in order to set aside the Judge's order dated May 8, 1971
which denied her motion to dismiss based on lack of jurisdiction and
on article 222 of the Civil Code.
She prayed for a declaration that the Court of First Instance of Cebu,
Toledo City, Branch IX has no jurisdiction over her person and
properties and for the dismissal of the complaint against her in Civil
Case No. 274-T of that court. The ultimate facts found in the prolix
pleadings are as follows:
Alvaro Pastor, Sr., a Spanish citizen, was allegedly the owner of
properties and rights in mining claims located in Cebu and
supposedly held in trust by his son, Alvaro Pastor, Jr., and his
daughter-in-law, Maria Elena Achaval-Pastor. Pastor, Sr. died on
June 5, 1966. He was survived by his wife, Sofia Pastor y Bossio (who
died on October 21, 1966) and by his two legitimate children, Mrs.
Midgely and Alvaro Pastor, Jr. Respondent Quemada claims to be his
illegitimate child.
Alvaro Pastor, Sr. in his supposed holographic will dated July 31,
1961 devised to Lewelyn Barlito Quemada thirty percent of his fortytwo percent share in certain mining claims and real properties. In
1970 the alleged will was presented for probate in Special
Proceedings No. 3128-R assigned to Branch I in Cebu City of the
Court of First Instance of Cebu. Quemada was appointed special
administrator of the decedent's estate.
As such administrator and as heir of Alvaro Pastor, Sr., Quemada
filed in the Court of First Instance of Cebu at Toledo City a complaint
dated December 7, 1970 against the spouses Alvaro Pastor, Jr. and
Maria Elena Achaval, Mrs. Midgely, Atlas Consolidated Mining and
Development Corporation and Caltex (Philippines), Inc. to settle the
question of ownership over certain real properties and the rights in
some mining claims, to obtain an accounting and payment of the
royalties and income thereof and for the payment of damages
amounting to P25,000. Quemada's theory is that those properties
and income belong to the estate of Alvaro Pastor, Sr.
Allegedly without complying with the requirements of Rule 14 of the
Rules of Court, Quemada caused extraterritorial service of summons
to be made in that case through the Department of Foreign Affairs

CIVIL PROCEDURE
and the Philippine Embassy in Madrid, Spain, which effected the
service of the summons by registered mail upon Mrs. Midgely and
the Pastor, Jr. spouses at their respective address in Alicante and
Barcelona, Spain.
Alvaro Pastor, Jr. and Mrs. Midgely, in their respective letters to the
Philippine Embassy dated February 11 and 12, 1971, acknowledged
the service of summons but reserved the right to contest the courts
jurisdiction over their persons. The Minister-Counselor of the
Embassy forwarded those letters to the Clerk of Court and apprised
him of the manner the summons was served.
Through counsel, Mrs. Midgely and the Pastor, Jr. spouses entered a
special appearance and filed a motion to dismiss on the ground of
lack of jurisdiction. They contended that as nonresidents they could
be summoned only with leave of court and that the requirements
laid down in section 17 of Rule 14 should have been observed. As
additional, ground they alleged that the complaint does not show
that earnest efforts toward a compromise have been made, as
required in article 222 of the Civil Code in suits between members of
the same family (See sec. 1[j], Rule 16, Rules of Court). Quemada
opposed the motion to dismiss.
As already stated, Judge Ferandos denied the motion. He ruled that
Mrs. Midgely and the Pastor, Jr. spouses had been properly
summoned. He opined that article 222 was inapplicable to the case
because Quemada's civil status was involved and article 2035 of the
Civil Code prohibits a compromise on a person's civil status. He gave
Mrs. Midgely and the Pastor, Jr. spouses seventy days from February
12, 1971 within which to file their answer, deducting from that
period the time from March 10 to May 8, 1971 when their motion to
dismiss was pending.
Mrs. Midgely's motion for reconsideration of the order denying her
motion to dismiss was denied by Judge Ferandos in his order of
September 27, 1971 wherein he ruled that the action filed by
Quemada was for the recovery of real properties and real rights. He
gave Mrs. Midgely and the Pastor, Jr. spouses sixty days from notice
within which to answer the complaint and directed that a copy of his
order be sent to them through the Philippine Embassy in Madrid.
The petition for certiorari herein was filed on November 3, 1971.
It was given due course. Respondent Quemada in his answer alleged
that inasmuch as his action against Mrs. Midgely concerns property
located here in which she claims an interest, it is not necessary that
jurisdiction over her person be acquired. The service of summons
upon her was not for the purpose of acquiring jurisdiction over her
person but merely as a matter of due process.
Quemada alleged that as administrator he has been in actual
possession of two parcels of land owned by Alvaro Pastor, Jr. located
at Biga, Toledo City with areas of 55.3 hectares and 5,225 square
meters, respectively. They were included in the inventory submitted
by him to the probate court in the testate proceeding for his
putative father's estate. His answer contains annexes attesting to his
efforts to recover possession of the other properties of the
decedent.
In the meantime the spouses Alvaro Pastor, Jr. and Maria Elena
Achaval filed a verified answer to the complaint in Civil Case No.
274-T dated December 5, 1971. Their answer was filed through the
same counsel who has been representing Mrs. Midgely. The said
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FULL TEXT CASES - ACTION

spouses-alleged that they were not waiving their defense of lack of
jurisdiction over their persons and over the subject matter of the
action. They claimed to be the owners of the properties described in
the complaint.
It should be noted that in the testate proceeding Mrs. Midgely and
Alvaro Pastor, Jr. had filed a verified opposition dated January 26,
1971. They prayed for the dismissal of the proceeding. (The
holographic will was probated in the lower court's order of
December 5, 1972 which was appealed to the Court of Appeals by
Mrs. Midgely and Alvaro Pastor, Jr., CA-G.R. No. 52961-R).
On May 10, 1972, this Court issued a writ of preliminary injunction
suspending all proceedings in Civil Case No. 274-T.
Contempt incident. That writ of preliminary injunction spawned
the contempt incident in this case. Mrs. Midgely in a motion dated
March 26, 1974 charged that Quemada committed "unlawful
interference of the case under injunction" and tried to circumvent
the writ (1) by taking possession of two parcels of land in Toledo City
and (2) by asking the probate court to stop Altas Consolidated
Mining and Development Corporation from remitting to Mrs.
Midgely and the Pastor, Jr. spouses the landowner's share of the
income from the Toledo City properties, with the result that the
probate court ordered the payment of said income to Quemada.
Quemada in his opposition to the motion countered that he had
maintained the status quo in Civil Case No. 274-T, as decreed in the
writ of preliminary injunction; that the overseer delivered in 1971
the possession of the two parcels of land to him in his capacity as
administrator or before the issuance of the writ, and that the order
of Judge Juan Y. Reyes in Special Proceedings No. 3128-R did not
constitute an interference with Civil Case No. 274-T which was
assigned to Judge Ferandos.
Quemada through counsel filed a counter-charge for contempt
against Abelardo Cecilio, the counsel of Mrs. Midgely, for having
made false and malicious statements in his motion to declare
Quemada in contempt of court. Quemada was referring to Atty.
Cecilio's allegations that the writ of preliminary injunction was
intended to prevent Quemada from taking possession of the
properties involved in Civil Case No. 274-T and that, notwithstanding
the writ, he took possession of the aforementioned two parcels of
land. Quemada in his memorandum further charged Cecilio with
purporting to represent Alvaro Pastor, Jr. in this case although the
latter is not a party herein.
Quemada branded the acts of Cecilio as misbehavior of an officer of
the court and as improper conduct tending to degrade and obstruct
the administration of justice. Quemada later manifested that he had
turned over to Atty. Cecilio the two checks for the land-owner's
share of the income from the Toledo City properties.
The contempt charges were investigated by the Legal Officer of this
Court. After going over the record, we find that both contempt
charges are devoid of merit.
The writ issued by this Court enjoined Judge Ferandos and Quemada
"from holding hearings, trial and proceedings and/or from further
proceeding with Civil Case No. 274-T". It froze the case. It was a
preventive injunction.

CIVIL PROCEDURE
The undisputed fact is that in February, 1971 Quemada as
administrator was already in possession of the two parcels of land in
Toledo City. The fact that he continued to remain in possession after
the injunction was issued on May 10, 1972 (Exh. 16) was not a
violation of the injunction which was not mandatory in character.
As to the attempt of Quemada in Special Proceeding No. 3128-R in
his capacity as administrator to get hold of the land-owner's share of
the income derived from the properties involved in Civil Case No.
274-T, it is apparent that he did so in good faith and on the advice of
his lawyer who actually filed the necessary motion.
The probate at first upheld his right to receive that income. Later he
complied with the court's order to turn over the checks to the
counsel of Alvaro Pastor, Jr. Inasmuch as that incident transpired in
the testamentary proceeding and as Quemada committed the
alleged contemptuous act through his counsel, the same cannot be
properly characterized as a willful interference with the injunction
issued by this Court in Civil Case No. 274-T.
On the other hand, Atty. Cecilio's free-wheeling allegations in his
motion to declare Quemada in contempt of court, which averments
were tailored to support his notion that Quemada circumvented the
injunction, may be viewed simply as a manifestation of a lawyer's
propensity to slant the presentation of his client's case so that it
would appear to be meritorious. Such a tactic is generally tolerated
by understanding judges. They are not deceived by the
exaggerations and distortions in a counsel's lopsided submission of
his client's case especially where, as in this case, the alert opposing
counsel calls the court's attention to that fact.
"Contempt of court presupposes a contumacious attitude, a flouting
or arrogant belligerence, a defiance of the court" (Matutina vs.
Judge Buslon and the Sheriff of Surigao, 109 Phil. 140, 142). It is an
offense against the authority and dignity of the court. That is not
true in this case. The contempt charges should be dismissed.
The certiorari case. The petitioner injected into this case issues
which involve the merits of Quemada's action for reconveyance of
certain properties and which are not germane to the
instant certiorari action. Those issues will be resolved by the lower
court in the main case.
The only legal issue to be resolved is whether Judge Ferandos
gravely abused his discretion in denying Mrs. Midgely's motion to
dismiss based on the grounds of (a) lack of jurisdiction over her
person and (b) lack of a showing that earnest efforts were exerted to
effect a compromise.
The said order is interlocutory. It could eventually be reviewed in the
appeal in the main case. While this Court generally does not
entertain a petition for certiorari questioning the propriety of an
interlocutory order, yet when a grave abuse of discretion has been
patently committed, or the lower court has acted capriciously and
whimsically, then it devolves upon this Court to exercise its
supervisory authority and to correct the error committed (Manila
Electric Co. and Sheriff of Quezon City vs. Hon. Enriquez, etc. and
Espinosa, 110 Phil. 499, 503; Abad Santos vs. Province of Tarlac, 67
Phil. 480).
We are of the opinion that the lower court has acquired jurisdiction
over the person of Mrs. Midgely by reason of her voluntary
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appearance. The reservation in her motion to dismiss that she was
making a special appearance to contest the court's jurisdiction over
her person may be disregarded.
It may be disregarded because it was nullified by the fact that in her
motion to dismiss she relied not only on the ground of lack of
jurisdiction over the person but also on the ground that there was
no showing that earnest efforts were exerted to compromise the
case and because she prayed "for such other relief as" may be
deemed "appropriate and proper".
Thus, it was held that where the defendant corporation (which was
not properly summoned because the summons was served upon its
lawyer) filed a motion to dismiss on the ground of lack of jurisdiction
over its person but in the same motion it prayed for the dismissal of
the complaint on the ground of prescription, it was held that, by
invoking prescription, it necessarily admitted the court's jurisdiction
upon its, person and, therefore, it was deemed to have abandoned
its special appearance and voluntarily submitted itself to the court's
jurisdiction (Republic vs. Ker & Co., Ltd., 64 O. G. 3761, 18 SCRA 207,
213-214 citing Flores vs. Zurbito, 37 Phil. 746 and Menghra vs.
Tarachand and Rewachand, 67 Phil. 286).
"When the appearance is by motion for the purpose of objecting to
the jurisdiction of the court over the person, it must be for
the sole and separate purpose of objecting to the jurisdiction of the
court. If his motion is for any other purpose than to object to the
jurisdiction of the court over his person, he thereby submits himself
to the jurisdiction of the court. A special appearance by motion
made for the purpose of objecting to the jurisdiction of the court
over the person will be held to be a general appearance, if the party
in said motion should, for example, ask for a dismissal of the action
upon the further ground that the court had no jurisdiction over the
subject matter." (Syllabus, Flores vs. Zurbito, supra, at page 751.
That rule was followed in Ocampo vs. Mina and Arejola, 41 Phil.
308).
Where the defendant contended that the court did not acquire
jurisdiction over his person by means of the publication of the
corresponding summons in Hawaii, where he was residing, because
the action did not relate to personal or real properties situated in
the Philippines in which the defendant had or claimed a lien or
interest, actual or contingent, it was held that the said defendant
nevertheless submitted to the court's jurisdiction when he filed a
motion wherein he contested the court's jurisdiction over his person
and at the same time prayed that he be relieved from the effects of
the judgment by default, attaching to his motion an affidavit of
merits. "He thereby impliedly waived his special appearance
assailing the jurisdiction of the court over his person, and voluntarily
submitted to the jurisdiction of said court." (Menghra vs. Tarachand
and Rewachand, supra. See Tenchavez vs. Escao, L-19671,
September 14, 1966, 17 SCRA 684 and Sharruf vs. Bubla, L-17029,
September 30, 1964, 12 SCRA 79 where it was held that a nonresident alien, by filing his complaint in a Philippine court, submits
thereby to its jurisdiction and the court acquires jurisdiction over
him even if as a matter of fact he had never been able to enter the
Philippines).
Having shown that Mrs. Midgely had voluntarily submitted to the
lower court's jurisdiction when she filed her motion to dismiss (see
sec. 23, Rule 14, Rules of Court), the inevitable conclusion is that it
did not commit any grave abuse of discretion in denying her motion
to dismiss.

CIVIL PROCEDURE
In petitioner's lengthy memorandum and reply she confined her
arguments to the jurisdictional issue. She even argued that the
lower court does not have jurisdiction over the res, a contention
that is palpably baseless.
She did not discuss the second ground of her motion to dismiss,
which is non-compliance with the requirement of article 222 of the
Civil Code on compromise of intra-family disputes. She was
presumably convinced by the lower court's argument that such a
compromise would violate the prohibition in article 2035 of the Civil
Code against compromise on a person's civil status (See De Raquiza
vs. Castellvi, L-17630, October 31, 1963, 9 SCRA 395).
The
case
may
be
viewed
from
another
angle.
Supposing arguendo that the lower court did not acquire jurisdiction
over the person of Mrs. Midgely, still her motion to dismiss was
properly denied because Quemada's action against her may be
regarded as a quasi in rem action where jurisdiction over the person
of the nonresident defendant is not necessary and where service of
summons is required only for the purpose of complying with the
requirement of due process (Perkins vs. Dizon, 69 Phil. 186; Banco
Espaol-Filipino vs. Palanca, 37 Phil. 921; Mabanag vs. Gallemore, 81
Phil. 254).
An action quasi in rem is an action between parties where the direct
object is to reach and dispose of property owned by them, or of
some interest therein (1 Am Jur 2nd 574; State ex rel. South Brevard
Drainage Dist. vs. Smith, 170 So. 440, 126 Fla. 72). Quemada's action
falls within that category.
With respect to the extraterritorial service of summons to a
nonresident defendant like Mrs. Midgely, Rule 14 of the Rules of
Court provides:t.hqw
SEC. 17. Extraterritorial service. When the
defendant does not reside and is not found in
the Philippines and the action affects the
personal status of the plaintiff or relates to, or
the subject of which is, property within the
Philippines, in which the defendant has or claims
a lien or interest, actual or contingent, or in
which the relief demanded consists, wholly or in
part, in excluding the defendant from any
interest therein, or the property of the
defendant has been attached within the
Philippines, service may, by leave of court, be
effected out of the Philippines by personal
service as under section 7; or by publication in a
newspaper of general circulation in such places
and for such time as the court may order, in
which case a copy of the summons and order of
the court shall be sent by registered mail to the
last known address of the defendant, or in any
other manner the court may deem sufficient.
Any order granting such leave shall specify a
reasonable time, which shall not be less than
sixty (60) days after notice, within which the
defendant must answer.
Under section 17, extraterritorial service of summons is proper (1)
when the action affects the personal status of the plaintiff; (2) when
the action relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or interest,
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actual or contingent; (3) when the relief demanded in such an action
consists, wholly or in part, in excluding the defendant from any
interest in property located in the Philippines, and (4) when
defendant nonresident's property has been attached within the
Philippines (Sec. 17, Rule 14, Rules of Court).
In any of such four cases, the service of summons may, with leave of
court, be effected out of the Philippines in three ways: (1) by
personal service; (2) by publication in a newspaper of general
circulation in such places and for such time as the court may order,
in which case a copy of the summons and order of the court should
be sent by registered mail to the last known address of the
defendant, and (3) service of summons may be effected in any other
manner which the court may deem sufficient. That third mode of
extraterritorial service of summons was substantially complied with
in this case.
In Civil Case No. 274-T the subject matter of the action for
reconveyance consists of properties of Alvaro Pastor, Sr. which are
located in Cebu. Mrs. Midgely claims an actual interest in those
properties. She has been receiving a share of the income therefrom.
Therefore, the extraterritorial service of summons upon her was
proper. As already noted, the action against her is quasi in rem. (See
Brown vs. Brown, 113 Phil. 442).
The record does not show whether Judge Ferandos was consulted
by the Clerk of Court and by Quemada's counsel when the service of
summons was effected through the Philippine Embassy in Madrid.
But although there was no court order allowing service in that
manner, that mode of service was later sanctioned or ratified by
Judge Ferandos in his order of May 8, 1971. In another order he
corrected the defect in the summons by giving Mrs. Midgely the
sixty-day reglementary period for answering the complaint.
In the Banco Espaol-Filipino case, supra, the failure of the clerk of
court, in a case of foreclosure of a mortgage executed by a nonresident defendant (which is an action quasi in rem) to mail to the
defendant's last place of residence copies of the summons and
complaint, as required in section 399 of Act 190 (now section 17 of
Rule 14) was held not to have affected the court's jurisdiction over
the res.
In the Perkins case, supra, Eugene Arthur Perkins sued in the Court
of First Instance of Manila the Benguet Consolidated Mining
Company, a domestic firm, together with Idonah Slade Perkins and
George Engelhard, two nonresidents, who were summoned by
publication. The service of summons was based on section 398 of
Act 190 (from which section 17 of Rule 14 was partly taken) which
provides that service of summons by publication may be made on a
nonresident in "an action which relates to, or the subject of which is,
real or personal property within the Islands, in which such person
defendant or foreign corporation defendant, has or claims a lien or
interest, actual or contingent, or in which the relief demanded
consists wholly or in part in excluding such person or foreign
corporation from any interest therein."

CIVIL PROCEDURE
Idonah Slade Perkins challenged the court's jurisdiction over her
person. Judge Arsenio P. Dizon overruled her objection. She filed in
this Court a certiorari proceeding wherein she prayed that the
summons by publication issued against her be declared void and
that Judge Dizon be permanently prohibited from taking any action
in the case.
This Court held that the action filed by Eugene Arthur Perkins
against the two non-residents was a quasi in remaction and not an
action in personam. In that action plaintiff Perkins sought to exclude
Idonah Slade Perkins from any interest in property located in the
Philippines consisting shares of stock in a domestic sociedad
anomina.
This Court clarified that in a quasi in rem action jurisdiction over the
person of the nonresident defendant is not essential. The service of
summons by publication is required "merely to satisfy the
constitutional requirement of due process". The judgment of the
court in the case would settle the title to the shares of stock and to
that extent it partakes of the nature of a judgment in rem.
Consequently, the lower court had jurisdiction to try the case even if
it had not acquired jurisdiction over the person of Idonah Slade
Perkins. The judgment would be confined to the res. No personal
judgment could be rendered against the non-resident.
Other considerations may be adduced to indicate the frivolous
character of Mrs. Midgely's petition for certiorari. There is the
circumstance that she actually received the summons and a copy of
the complaint. Thus, she cannot complain that she was unaware of
the action against her. The requirement of due process has been
satisfied. She is cognizant not only of Quemada's complaint in Civil
Case No. 274-T in Branch IX of the Court of First Instance of Cebu at
Toledo City but also of the testamentary proceeding instituted
earlier by Quemada for the settlement of the estate of Alvaro
Pastor, Sr. in the Cebu City Branch I of the Court of First Instance of
Cebu. In that proceeding she and her brother, Alvaro Pastor, Jr.,
through her counsel in this case, submitted to the court's jurisdiction
by filing an opposition to Quemada's petition.
It should be noted that Civil Case No. 274-T is related to the
testamentary proceeding (which is a proceeding inrem par
excellance) because the former case was filed by Quemada for the
purpose of recovering the properties which, according to his
understanding, belong to the estate of Alvaro Pastor, Sr. and which
are held by Mrs. Midgely and the spouses Alvaro Pastor, Jr. and
Maria Elena Achaval.
WHEREFORE, the contempt charges and the
for certiorari are dismissed. Costs against the petitioner.

petition

SO ORDERED.

Eugene Arthur Perkins in his complaint prayed that Engelhard and

Idonah Slade Perkins, "be adjudged without interest" in certain
shares of stock of the Benguet Consolidated Mining Company and be
excluded from any claim involving such shares.

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G.R. No. L-18176

CIVIL PROCEDURE

October 26, 1966

lower court of its jurisdiction to pass upon the validity of her

marriage to plaintiff herein.

LAZARO
B.
RAYRAY, plaintiff-appellant,
vs.
CHAE KYUNG LEE, defendant-appellee.
Jaime
R.
Nuevas
for
plaintiff
Rafael Jose for defendant and appellant.

and

appellee.

CONCEPCION, C.J.:
Appeal from a decision of the Court of Juvenile and Domestic
Relations.
Plaintiff Lazaro Rayray seeks the annulment of his marriage to
defendant Chae Kyung Lee. Inasmuch as, the latter's whereabouts is
unknown, and she was formerly a resident of Pusan, Korea,
summons was served by publication, as provided in the Rules of
Court. Thereafter, plaintiff moved that defendant be declared in
default, she not having filed an answer, and that a date be set for
the reception of his evidence. Before acting on this motion, the
lower court referred the case to the City Fiscal of Manila pursuant to
Articles 88 and 101 of the Civil Code of the Philippines, for the
purpose of determining whether or not a collusion between the
parties exists. Said officer having found no such collusion, the case
was heard on the merits. In due course, thereafter, decision was
rendered dismissing plaintiff's complaint, without costs, upon the
ground: (1) that the court could not nullify a marriage contracted
abroad; and (2) that the facts proven do not warrant the relief
prayed for. A reconsideration of this decision having been denied,
plaintiff appealed to the Court of Appeals, which certified the case
to the Supreme Court, the jurisdiction of the lower court being in
issue in the appeal.
In relation thereto, the court a quo found that it had no jurisdiction
to pass upon the validity of plaintiff's marriage to the defendant, it
having been solemnized in Seoul, Korea. Said conclusion is
erroneous. In order that a given case could be validly decided by a
court of justice, it must have jurisdiction over (1) the subject-matter
of the litigation; (2) the person of the parties therein; and (3) in
1
actions in rem or quasi-in-rem, the res.
The subject-matter of the present case is the annulment of plaintiff's
marriage to the defendant, which is within the jurisdiction of our
2
courts of first instance, and, in Manila, of its Court of Juvenile and
3
Domestic Relations.
The same acquired jurisdiction over plaintiff herein by his
submission thereto in consequence of the filing of the complaint
4
herein. Defendant was placed under the jurisdiction of said court,
5
upon the service of summons by publication.
This is an action in rem, for it concerns the status of the parties
herein, and status affects or binds the whole word. The res in the
present case is the relation between said parties, or their marriage
6
tie. Jurisdiction over the same depends upon the nationality or
domicile of the parties, not the place of celebration of marriage, or
7
the locus celebrationis. Plaintiff here is a citizen of the Philippines,
domiciled therein. His status is, therefore, subject to our jurisdiction,
on both counts. True that defendant was and under plaintiff's
theory still is a non-resident alien. But, this fact does not deprive the

Indeed, marriage is one of the cases of double status, in that the

status therein involves and affects two persons. One is married,
never in abstract or a vacuum, but, always to somebody else. Hence,
a judicial decree on the marriage status of a person necessarily
reflects upon the status of another and the relation between them.
The prevailing rule is, accordingly, that a court has jurisdiction over
the res, in an action for annulment of marriage, provided, at least,
8
one of the parties is domiciled in, or a national of, the forum. Since
plaintiff is a Filipino, domiciled in the Philippines, it follows that the
lower court had jurisdiction over the res, in addition to its
jurisdiction over the subject-matter and the parties. In other words,
it could validly inquire into the legality of the marriage between the
parties herein.
As regards the substantial validity of said marriage, plaintiff testified
that he met the defendant in Pusan Korea, sometime in 1952, where
she was operating a nightclub; that they lived together from
November 1952 to April 1955; that they were married in Pusan
Korea, on March 15, 1953, as attested to by their marriage
certificate Exhibit D; that before the wedding she obtained the
"police clearance" Exhibit A, written in Korean language, and dated
February 16, 1953, which was necessary in order that she could
contract marriage; that on June 30, 1953, he proceeded to India and
left the defendant, then in advanced stage of pregnancy, in Korea;
that in October, 1953, she joined him in India, bringing with her said
Exhibit A, and its translation into English, Exhibit B; that he then
noticed that, on February 16, 1958, defendant was already married,
according to said Exhibit B; that as he confronted the defendant with
the contents of this document, her reply was that it is not unusual
for a Korean girl to marry twice in Korea; that when he inquired
about her status on March 15, 1953, defendant confided to him that
she had lived with about two (2) Americans and a Korean, adding,
however, that there was no impediment to her contracting marriage
with him; and that, later on, they were separated and her
whereabouts are now unknown to him.
The lower court considered plaintiffs evidence insufficient to
establish that defendant was married to another person prior to
March 15, 1953, and we agree with this conclusion. To begin with,
Exhibit A is not signed. It merely purports to bear the seal of the
Chief of Pusan National Police. Secondly, the record does not show
who prepared it, much less that he had personal knowledge of the
truth of the entry therein concerning defendant's status on February
15, 1953. It should be noted, that defendant was a native, not of
Pusan but of Seoul, Korea. Hence, Exhibit A could, at best, be no
more than hearsay evidence. Again, when plaintiff allegedly
confronted the defendant with the contents of Exhibit B, defendant
did not say that she had been married before. Plaintiff declared that
she admitted having previously lived with several other men, adding,
however, that she had no impediment, thus, in effect, negating the
alleged previous marriage.
Thirdly, if Exhibit A was obtained on February 16, 1953, in order to
establish defendant's qualification to contract marriage, why is it
that the wedding took place, despite the entry in said document to
the effect that defendant was married already? There is no
competent evidence to the effect that Korean laws permit bigamy or
polygamy. Moreover, the presumption is that the foreign law is
9
identical to the lex fori, or, in the case at bar, the Philippine Law. In
fact, the statement, imputed by plaintiff to the defendant, to the
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FULL TEXT CASES - ACTION

CIVIL PROCEDURE

effect that, although she had cohabited before with other men,
there was no impediment to her marrying him, clearly suggests that
a previous marriage on her part would have been, in her opinion, a
legal obstacle to her marriage with the plaintiffs. Then too, the
marriage certificate Exhibit D contains spaces for the entry of data
on whether any of the contracting parties had been previously
married; whether the prior marriage had been dissolved by a decree
of divorce; and, if there had been such decree, the date thereof.
Surely, these data would be absolutely irrelevant if polygamy were
sanctioned in Korea. And, again, why is it that Exhibit D states that
defendant had had no previous marriage?
Last, but not least, plaintiff cannot possibly secure the relief prayed
for unless full faith and credence are given to his testimony, but we
cannot believe him for the records show that he would not hesitate
to lie when it suits his purpose. Thus, for instance, when plaintiff
contracted marriage with the defendant, he said that he was single,
although, he admitted, this was a lie, because, sometime in 1940, he
10
married in Baguio, one Adelaida Melecio or Valdez. But, then he
would, also, have us believe that his marriage with the latter was
illegal or fictitious, because Adelaida and he did no more than sign,
on a small window in the City Hall of Baguio, certain documents the
contents of which he did not read.
WHEREFORE, the decision appealed from should be, as it is hereby,
affirmed, with the costs of this instance against plaintiff-appellant. It
is so ordered.

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G.R. No. L-22554 August 29, 1975
DELFIN
LIM
and
JIKIL
TAHA, plaintiffs-appellants,
vs.
FRANCISCO
PONCE
DE
LEON
AND
ORLANDO
MADDELA, defendants-appellees.
Ricardo L. Manalilig for plaintiffs-appellants.
Iigo R. Pea for defendants-appellees.

MARTIN, J.:
Appeal on a question of law from the decision of the Court of First
Instance of Palawan in Civil Case No. 416, entitled "Delfin Lim and
Jikil Taha vs. Francisco Ponce de Leon and Orlando Maddela",
dismissing the complaint of the plaintiffs and ordering them to pay
each of the defendants jointly and severally the sum of P500.00 by
way of actual damages; P500.00 by way of attorney's fees; and
P1,000.00 by way of exemplary damages.
On April 29, 1961, plaintiff-appellant Jikil Taha sold to a certain
Alberto Timbangcaya of Brooke's Point, Palawan a motor launch
named M/L "SAN RAFAEL". A year later or on April 9, 1962 Alberto
Timbangcaya filed a complaint with the Office of the Provincial Fiscal
of Palawan alleging that after the sale Jikil Taha forcibly took away
the motor launch from him.
On May 14, 1962, after conducting a preliminary investigation, Fiscal
Francisco Ponce de Leon in his capacity as Acting Provincial Fiscal of
Palawan, filed with the Court of First Instance of Palawan the
corresponding information for Robbery the Force and Intimidation
upon Persons against Jikil Taha. The case was docketed as Criminal
Case No. 2719.
On June 15, 1962, Fiscal Francisco Ponce de Leon, upon being
informed that the motor launch was in Balabac, Palawan, wrote the
Provincial Commander of Palawan requesting him to direct the
detachment commander-in Balabac to impound and take custody of
1
the motor launch.
On June 26, 1962, Fiscal Ponce de Leon reiterated his request to the
Provincial Commander to impound the motor launch, explaining that
its subsequent sale to a third party, plaintiff-appellant Delfin Lim,
2
cannot prevent the court from taking custody of the same. So, on
July 6, 1962 upon order of the Provincial Commander, defendantappellee Orlando Maddela, Detachment Commander of Balabac,
Palawan, seized the motor launch "SAN RAFAEL" from plaintiffappellant Delfin Lim and impounded it.
On July 15, 1962 plaintiff-appellant Delfin Lim pleaded with Orlando
Maddela to return the motor launch but the latter refused. Likewise,
on September 20, 1962, Jikil Taha through his counsel made
representations with Fiscal Ponce de Leon to return the seized
property to plaintiff-appellant Delfin Lim but Fiscal Ponce de Leon
refused, on the ground that the same was the subject of a criminal
offense.

CIVIL PROCEDURE
All efforts to recover the motor launch going to naught, plaintiffsappellants Delfin Lim and Jikil Taha, on November 19, 1962, filed
with the Court of First Instance of Palawan a complaint for damages
against defendants-appellees Fiscal Francisco Ponce de Leon and
Orlando Maddela, alleging that on July 6, 1962 Orlando Maddela
entered the premises of Delfin Lim without a search warrant and
then and there took away the hull of the motor launch without his
consent; that he effected the seizure upon order of Fiscal Ponce de
Leon who knew fully well that his office was not vested with
authority to order the seizure of a private property; that said motor
launch was purchased by Delfin Lim from Jikil Taha in consideration
of Three Thousand Pesos (P3,000.00), Two Thousand Pesos
(P2,000.00) of which has been given to Jikil Taha as advance
payment; that as a consequence of the unlawful seizure of the
motor launch, its sale did not materialize; and that since July 6,
1962, the said motor launch had been moored at the Balabac Bay,
Palawan and because of exposure to the elements it had become
worthless and beyond repair. For the alleged violation of their
constitutional rights, plaintiffs-appellants prayed that defendantsappellees be ordered to pay jointly and severally each of them the
sum of P5,750.00 representing actual, moral and exemplary
damages and attorney's fees.
In their answer, defendants-appellees denied the material
allegations of the complaint and as affirmative defenses alleged that
the motor launch in question which was sold by Jikil Taha to Alberto
Timbangcaya on April 29, 1961 was sometime in April 1962, forcibly
taken with violence upon persons and with intent to gain by Jikil
Taha from Alfredo Timbangcaya without the latter's knowledge and
consent, thus giving rise to the filing of a criminal charge of robbery
against Jikil Taha; that Fiscal Ponce de Leon, in his capacity as Acting
Provincial Fiscal of Palawan ordered Orlando Maddela to seize and
impound the motor launch "SAN RAFAEL", for being the corpus
delicti of the robbery; and that Orlando Maddela merely obeyed the
orders of his superior officer to impound said launch. By way of
counterclaim, defendants-appellees alleged that because of the
malicious and groundless filing of the complaint by plaintiffsappellants, they were constrained to engage the services of lawyers,
each of them paying P500.00 as attorney's fees; and that they
suffered moral damages in the amount of P5,000.00 each and actual
damages in the amount of P500.00 each. They also prayed that each
of them awarded exemplary damages in the amount of P1,000.00.
On September 13, 1965, the trial court rendered its decision,
upholding the validity of the seizure of the motor launch on the
ground that "the authority to impound evidences or exhibits
or corpus delicti in a case pending investigation is inherent in the
Provincial Fiscal who controls the prosecution and who introduces
those exhibits in the court." Accordingly, the trial court dismissed
the complaint of plaintiffs-appellants and ordered them to pay
jointly and severally each of the defendants-appellees the amount of
P500.00 by way of actual damages another amount of P500.00 for
attorney's fees and P1,000.00 as exemplary damages.
Hence, this appeal.
Two vital issues call for resolution by this Court. First, whether or not
defendant-appellee Fiscal Ponce de Leon had the power to order the
seizure of the motor launch in question without a warrant of search
and seizure even if the same was admittedly the corpus delicti of the
crime. Second, whether or not defendants-appellees are civilly liable
to plaintiffs-appellants for damages allegedly suffered by them
granting that the seizure of the motor launch was unlawful.
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The gravamen of plaintiffs-appellants' argument is that the taking of
the motor launch on July 6, 1962 by Orlando Maddela upon the
order of Fiscal Ponce de Loon was in violation of the constitutional
guarantee against unreasonable searches and seizures since it was
done without a warrant.
The pertinent provision of the Constitution then in force reads:
3) The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon
probable cause, to be determined by the judge
after examination under oath or affirmation of
the complainant and the witnesses he may
produce, and particularly describing the place to
be searched, and the persons or things to be
3
seized.
A cursory reading of the above provision easily brings into focus the
unreasonableness of the seizure of the aforementioned motor
launch. A search and seizure to be reasonable, must be effected by
means of a valid search warrant. And for a search warrant to be
valid: (1) it must be issued upon probable cause; (2) the probable
cause must be determined by the judge himself and not by the
applicant or any other person; (3) in the determination of probable
cause, the judge must examine, under oath or affirmation, the
complainant and such witnesses as the latter may produce; and (4)
the warrant issued must particularly describe the place to be
4
searched and persons or things to be seized. Thus in a long line of
decisions, this Court has declared invalid search warrants which
5
were issued in utter disregard of the constitutional injunction.
Defendants-appellees admitted that when Orlando Maddela
entered the premises of Delfin Lim and impounded the motor
launch he was not armed with a search warrant; that he effected the
seizure of the motor launch in the absence of and without the
consent of Delfin Lim. There can be no question that without the
proper search warrant, no public official has the right to enter the
premises of another without his consent for the purpose of search
6
and seizure. And since in the present case defendants-appellees
seized the motor launch without a warrant, they have violated the
constitutional right of plaintiffs-appellants against unreasonable
search and seizure.
Defendants-appellees however would want to justify the seizure of
the motor launch even without a warrant because of Fiscal Ponce de
Leon's alleged inherent power to order the seizure of a personal
property which is thecorpus delicti of a crime, he being
a quasi judicial officer who has the control of the prosecution and
the presentation of the evidence in the criminal case. They argue
that inasmuch as the motor launch in question was allegedly stolen
by Jikil Taha from Timbangcaya, Fiscal Ponce de Leon could order its
seizure even without a search warrant. We cannot agree. Under the
7
old Constitution the power to issue a search warrant is vested in a
judge or magistrate and in no other officer and no search and
seizure can be made without a proper warrant. At the time the act
complained of was committed, there was no law or rule that
recognized the authority of Provincial Fiscals to issue a search
warrant. In his vain attempt to justify the seizure of the motor
launch in question without a warrant Fiscal Ponce de Leon invoked
the provisions of Republic Act No. 732, which amended Sections
1674 and 1687 of the Revised Administrative Code. But there is

CIVIL PROCEDURE
nothing in said law which confers upon the provincial fiscal; the
authority to issue warrants, much less to order without warrant the
seizure of a personal property even if it is the corpus delicti of a
crime. True, Republic Act No. 732 has broadened the power of
provincial fiscals to conduct preliminary investigations, but said law
did not divest the judge or magistrate of its power to determine,
before issuing the corresponding warrant, whether or not probable
8
cause exists therefor.
Moreover, under Sections 2 and 3 of Rule 122 of the Rules of
Court 9 which complement the constitutional provision earlier cited,
two principles are made clear, namely: (1) that in the seizure of a
stolen property search warrant is still necessary; and (2) that in
issuing a search warrant the judge alone determines whether or not
there is a probable cause. The fact that a thing is a corpus delicti of a
crime does not justify its seizure without a warrant. As held in U.S. v.
10
11
de los Reyes and Esguerra, citing McClurg v. Brenton:
The mere fact that a man is an officer, whether
of high or low degree, gives him no more right
than is possessed by the ordinary private citizen
to break in upon the privacy of a home and
subject its occupant to the indignity of a search
for the evidence of crime, without a legal
warrant procured for that purpose. No amount
of incriminating evidence whatever its source,
will supply the place of such warrant. At the
closed door of the home be it palace or hovel
even bloodhounds must wait till the law, by
authoritative process, bids it open. (Emphasis
supplied.)
Defendant-appellee Fiscal Ponce de Leon would also invoke lack of
time to procure a search warrant as an excuse for the seizure of the
motor launch without one. He claimed that the motor launch had to
be seized immediately in order to preserve it and to prevent its
removal out of the locality, since Balabac, Palawan, where the motor
launch was at the time, could only be reached after three to four
12
days' travel by boat. The claim cannot be sustained. The records
13
show that on June 15, 1962 Fiscal Ponce de Leon made the first
request to the Provincial Commander for the impounding of the
14
motor launch; and on June 26, 1962 another request was made.
The seizure was not effected until July 6, 1962. In short, Fiscal Ponce
de Leon had all the time to procure a search warrant had he wanted
to and which he could have taken in less than a day, but he did not.
Besides, there is no basis for the apprehension that the motor
launch might be moved out of Balabac because even prior to its
15
seizure the motor launch was already without its engine. In sum,
the fact that there was no time to secure a search warrant would
16
not legally justify a search without one.
As to whether or not they are entitled to damages, plaintiffsappellants anchor their claim for damages on Articles 32 and 2219 of
the New Civil Code which provide in part as follows:
ART. 32. Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights
and liberties of another person shall be liable to
the latter for damages.
xxx xxx xxx
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(9) The rights to be secure in one's person,
house, papers, and effects against unreasonable
searches and seizures.
xxx xxx xxx
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
ART. 2219. Moral damages may be recovered in
the following and analogous cases:
xxx xxx xxx
(6) Illegal search;
xxx xxx xxx
(1) Acts and action referred to in Articles 21, 26,
27, 28, 29, 30, 32, 34 and 35.
Pursuant to the foregoing provisions, a person whose constitutional
rights have been violated or impaired is entitled to actual and moral
damages from the public officer or employee responsible therefor.
In addition, exemplary damages may also be awarded. In the instant
case, plaintiff-appellant Delfin Lim claimed that he purchased the
motor launch from Jikil Taha in consideration of P3,000.00, having
given P2,000.00 as advanced payment; that since or seizure on July
6, 1962 the motor launch had been moored at Balabac Bay and
because of exposure to the elements it has become worthless at the
time of the filing of the present action; that because of the illegality
of the seizure of the motor launch, he suffered moral damages in
the sum of P1,000.00; and that because of the violation of their
constitutional rights they were constrained to engage the services of
a lawyer whom they have paid P1,500.00 for attorney's fees. We
find these claims of Delfin Lim amply supported by the evidence and
therefore should be awarded the sum of P3,000.00 as actual
damages; P1,000.00 as moral damages and P750.00 for attorney's
fees. However, with respect co plaintiff Jikil Taha, he is not entitled
to recover any damage which he alleged he had suffered from the
unlawful seizure of the motor launch inasmuch as he had already
transferred the ownership and possession of the motor launch to
Delfin Lim at the time it was seized and therefore, he has no legal
standing to question the validity of the seizure. Well settled is the
rule that the legality of a seizure can be contested only by the party
whose rights have been impaired thereby, and that the objection to
an unlawful search and seizure is purely personal and cannot be
17
availed of by third parties. Consequently, one who is not the
owner, lessee, or lawful occupant of the premise searched cannot
18
raise the question of validity of the search and seizure. Jikil Taha is
not without recourse though. He can still collect from his co-plaintiff,
Delfin Lim the unpaid balance of P1,000.00.
Defendant-appellee Fiscal Ponce de Leon wanted to wash his hands
of the incident by claiming that "he was in good faith, without
malice and without the slightest intention of inflicting injury to
19
plaintiff-appellant, Jikil Taha" when he ordered the seizure of the
motor launch. We are not prepared to sustain his defense of good
faith. To be liable under Article 32 of the New Civil Code it is enough
that there was a violation of the constitutional rights of the plaintiffs
and it is not required that defendants should have acted with malice
or bad faith. Dr. Jorge Bocobo, Chairman of the Code Commission,

CIVIL PROCEDURE
gave the following reasons during the public hearings of the Joint
Senate and House Committees, why good faith on the part of the
public officer or employee is immaterial. Thus:
DEAN BOCOBO. Article 32, regarding individual
rights; Attorney Cirilo Paredes proposes that
Article 32 be so amended as to make a public
official liable for violation of another person's
constitutional rights only if the public official
acted maliciously or in bad faith. The Code
Commission opposes this suggestion for these
reasons:
The very nature of Article 32 is that the wrong
may be civil or criminal. It is not necessary
therefore that there should be malice or bad
faith. To make such a requisite would defeat the
main purpose of Article 32 which is the effective
protection of individual rights. Public officials in
the past have abused their powers on the
pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object
of the Article is to put an end to official abuse by
the plea of good faith. In the United States this
remedy is in he nature of a tort.
Mr. Chairman, this article is firmly one of the
fundamental articles introduced in the New Civil
Code to implement democracy. There is no real
democracy if a public official is abusing, and we
made the article so strong and so comprehensive
that it concludes an abuse of individual rights
even if done in good faith, that official is liable.
As a matter of fact, we know that there are very
few public officials who openly and definitely
abuse the individual rights of the citizens. In
most cases, the abuse is justified on a plea of
desire to enforce the law to comply with one's
duty. And so, if we should limit the scope of this
article, that would practically nullify the object of
the article. Precisely, the opening object of the
article is to put an end to abuses which are
justified by a plea of good faith, which is in most
cases the plea of officials abusing individual
20
rights.
But defendant-appellee Orlando Maddela cannot be held
accountable because he impounded the motor launch upon the
order of his superior officer. While a subordinate officer may be held
liable for executing unlawful orders of his superior officer, there are
certain circumstances which would warrant Maddela's exculpation
from liability. The records show that after Fiscal Ponce de Leon
made his first request to the Provincial Commander on June 15,
1962 Maddela was reluctant to impound the motor launch despite
21
repeated orders from his superior officer. It was only after he was
furnished a copy of the reply of Fiscal Ponce de Leon, dated June 26,
1962, to the letter of the Provincial Commander, justifying the
necessity of the seizure of the motor launch on the ground that the
subsequent sale of the launch to Delfin Lim could not prevent the
22
court from taking custody of the same, that he impounded the
motor launch on July 6, 1962. With said letter coming from the legal
officer of the province, Maddela was led to believe that there was a
legal basis and authority to impound the launch. Then came the
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CIVIL PROCEDURE

order of his superior officer to explain for the delay in the seizure of
23
the motor launch. Faced with a possible disciplinary action from
his Commander, Maddela was left with no alternative but to seize
the vessel. In the light of the above circumstances. We are not
disposed to hold Maddela answerable for damages.
IN VIEW OF THE FOREGOING, the decision appealed from is hereby
reversed and another one entered declaring the seizure illegal and
ordering defendant-appellee Fiscal Francisco Ponce de Leon to pay
to plaintiff-appellant Delfin Lim the sum of P3,000.00 as actual
damages, plus P1,000.00 moral damages, and, in addition, P750.00
for attorney's fees. With costs against defendant-appellee Fiscal
Ponce de Leon.
SO ORDERED.

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G.R. No. L-8238

CIVIL PROCEDURE

May 25, 1955

CESAR
M.
CARANDANG, petitioner,
vs.
VICENTE SANTIAGO, in his capacity as Judge of the Court of First
Instance of Manila and TOMAS VALENTON, Sr. and TOMAS
VALENTON, Jr., respondents.
S.
Mejia-Panganiban
for
Evangelista and Valenton for respondents.

petitioner.

LABRADOR, J.:
This is a petition for certiorari against Honorable Vicente Santiago,
Judge of the Court of First Instance of Manila, to annul his order in
Civil Case No. 21173, entitled Cesar M. Carandang vs. Tomas
Valenton, Sr. et al., suspending the trial of said civil case to await the
result of the criminal Case No. 534, Court of First Instance of
Batangas. In this criminal case, Tomas Valenton, Jr. was found guilty
of the crime of frustrated homicide committed against the person of
Cesar Carandang, petitioner herein. Tomas Valenton, Jr. appealed
the decision to the Court of Appeals where the case is now pending.
The decision of the Court of First Instance of Batangas in the criminal
case was rendered on September 1, 1953 and petitioner herein filed
a complaint in the Court of First Instance of Manila to recover from
the defendant Tomas Valenton, Jr. and his parents, damages, both
actual and moral, for the bodily injuries received by him on occasion
of the commission of the crime of frustrated homicide by said
accused Tomas Valenton Jr. After the defendants submitted their
answer, they presented a motion to suspend the trial of the civil
case, pending the termination of the criminal case against Tomas
Valenton, Jr. in the Court of Appeals. The judge ruled that the trial of
the civil action must await the result of the criminal case on appeal.
A motion for reconsideration was submitted, but the court denied
the same; hence this petition for certiorari.
Petitioner invokes Article 33 of the new Civil Code, which is as
follows:
In cases of defamation, fraud and physical injuries, a civil
action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party. Such
civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of
evidence.

is attended by the intent to kill. So the question arises whether the

term "physical injuries" used in Article 33 means physical injuries in
the Revised Penal Code only, or any physical injury or bodily injury,
whether inflicted with intent to kill or not.
The Article in question uses the words "defamation", "fraud" and
"physical injuries." Defamation and fraud are used in their ordinary
sense because there are no specific provisions in the Revised Penal
Code using these terms as means of offenses defined therein, so
that these two terms defamation and fraud must have been used
not to impart to them any technical meaning in the laws of the
Philippines, but in their generic sense. With this apparent
circumstance in mind, it is evident that the term "physical injuries"
could not have been used in its specific sense as a crime defined in
the Revised Penal Code, for it is difficult to believe that the Code
Commission would have used terms in the same article some in
their general and another in its technical sense. In other words, the
term "physical injuries" should be understood to mean bodily injury,
not the crime of physical injuries, because the terms used with the
latter are general terms. In any case the Code Commission
recommended that the civil for assault and battery in American Law,
and this recommendation must have been accepted by the
Legislature when it approved the article intact as recommended. If
the intent has been to establish a civil action for the bodily harm
received by the complainant similar to the civil action for assault and
battery, as the Code Commission states, the civil action should lie
whether the offense committed is that of physical injuries, or
frustrated homicide, or attempted homicide, or even death.
A parallel case arose in that of Bixby vs Sioux City, 164 N. W. 641,
643. In that case, the appellant sought to take his case from the
scope of the statute by pointing out that inasmuch as notice is
required where the cause of action is founded on injury to the
person, it has no application when the damages sought are for the
death of the person. The court ruled that a claim to recover for
death resulting from personal injury is as certainly "founded on
injury to the person" as would be a claim to recover damages for a
non-fatal injury resulting in a crippled body.
For the foregoing considerations, we find that the respondent judge
committed an error in suspending the trial of the civil case, and his
order to that affect is hereby revoked, and he is hereby ordered to
proceed with the trial of said civil case without awaiting the result of
the pending criminal case. With costs against the defendantappellees.

The Code Commission itself states that the civil action allowed
(under Article 33) is similar to the action in tort for libel or slander
and assault and battery under American law (Reports of the Code
Commission, pp. 46-47). But respondents argue that the term
"physical injuries" is used to designate a specific crime defined in the
Revised Penal Code, and therefore said term should be understood
in its peculiar and technical sense, in accordance with the rules
statutory construction (Sec. 578, 59 C. J. 979).
In the case at bar, the accused was charged with and convicted of
the crime of frustrated homicide, and while it was found in the
criminal case that a wound was inflicted by the defendant on the
body of the petitioner herein Cesar Carandang, which wound is
bodily injury, the crime committed is not physical injuries but
frustrated homicide, for the reason that the infliction of the wound
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