RULE 14

SUMMONS

AURORA N. DE PEDRO v. ROMASAN DEVELOPMENT CORPORATION

G.R. No. 194751 November 26, 2014 LEONEN, J.:

FACTS:
This case originated from separate complaints for nullification of free patent and original
certificates of title, filed against several defendants. One of the defendants is petitioner Aurora De
Pedro (De Pedro). The complaints were filed by respondent Romasan Development Corporation
(RDC) before the RTC of Antipolo City.

Respondent RDC alleged in its complaints that it was the owner and possessor of land.
Attempts to personally serve summons on De Pedro failed. The officers return reads in part: xxxx
AURORA N. DE PEDRO Unserved for the reason that according to the messenger of Post
Office of Pasig their [sic] is no person in the said given address.
Respondent filed a motion to serve summons and the complaint by publication.
RTC granted the motion. The summons and the complaint were published in Peoples Balita.

Respondent moved to declare all defendants in its complaints, including De Pedro, in

default for failure to file their answers. The RTC granted the motion. The RTC issued an order
declaring as nullity the titles and free patents issued to all defendants in respondents complaint,
including the free patent issued to De Pedro.

De Pedro, through counsel, filed before the RTC a motion for new trial, De Pedro argued
that the RTC did not acquire jurisdiction over her person because of improper and defective
service of summons. Citing the officers return, De Pedro pointed out that summons was not
personally served upon her for the reason that according to the messenger of Post Office of
Pasig their (sic) is no person in the said given address.

De Pedro also argued that the case should have been dismissed on the ground of litis
pendentia. She alleged that there was a pending civil case filed by her, involving the same
property, when respondent filed the complaints against her and several others.
RTC issued an order denying De Pedros motion for new trial.

The RTC ruled that summons was validly served upon De Pedro through publication, in
accordance with the Rules of Court. De Pedro filed a petition for certiorari before the CA, alleging
that the RTC committed grave abuse of discretion when it denied her motion for new trial. CA
dismissed the petition for certiorari for lack of merit, and affirmed the denial of De Pedros motion
for new trial.

De Pedros motion for reconsideration was denied in the CA.

De Pedro elevated the case to this court, but this was likewise denied. De Pedro filed
before the CA a petition for annulment of judgment of the RTC on grounds of lack of
jurisdiction, litis pendentia, and for having been dispossessed of her property without due process.
 CA promulgated its decision denying De Pedros petition for annulment of judgment. CA
ruled that since petitioner already availed herself of the remedy of new trial, and raised the case
before the CA via petition for certiorari, she can no longer file a petition for annulment of judgment.

De Pedros motion for reconsideration was denied. De Pedro filed before this court a Rule
45 petition, seeking the reversal of the CA decision.

ISSUES:
Whether the trial court decision was void for failure of the trial court to acquire jurisdiction
over the person of petitioner Aurora N. De Pedro;

Whether filing a motion for new trial and petition for certiorari is a bar from filing a petition
for annulment of judgment.

RULING:
The sheriffs return must show the details of the efforts exerted to personally serve
summons upon defendants or respondents, before substituted service or service by publication
is availed

Regardless of the type of action whether it is in personam, in rem or quasi in rem

the preferred mode of service of summons is personal service. To avail themselves of substituted
service, courts must rely on a detailed enumeration of the sheriffs actions and a showing that the
defendant cannot be served despite diligent and reasonable efforts. The sheriffs return, which
contains these details, is entitled to a presumption of regularity, and on this basis, the court may
allow substituted service. Should the sheriffs return be wanting of these details, substituted
service will be irregular if no other evidence of the efforts to serve summons was presented.

Failure to serve summons will mean that the court failed to acquire jurisdiction over the
person of the defendant. However, the filing of a motion for new trial or reconsideration is
tantamount to voluntary appearance.

Courts may exercise their powers validly and with binding effect if they acquire jurisdiction
over: (a) the cause of action or the subject matter of the case; (b) the thing or the res; (c) the
parties; and (d) the remedy.

Due process requires that those with interest to the thing in litigation be notified and given
an opportunity to defend those interests. Courts, as guardians of constitutional rights, cannot be
expected to deny persons their due process rights while at the same time be considered as acting
within their jurisdiction. Violation of due process rights is a jurisdictional defect. The relation of
due process to jurisdiction is recognized even in administrative cases wherein the standard of
evidence is relatively lower.

Hence, regardless of the nature of the action, proper service of summons is imperative. A
decision rendered without proper service of summons suffers a defect in
jurisdiction. Respondents institution of a proceeding for annulment of petitioners certificate of
title is sufficient to vest the court with jurisdiction over the res, but it is not sufficient for the court
to proceed with the case with authority and competence. Personal service of summons is the
preferred mode of service of summons. Thus, as a rule, summons must be served personally
upon the defendant or respondent wherever he or she may be found. If the defendant or
respondent refuses to receive the summons, it shall be tendered to him or her.
 If the defendant or respondent is a domestic juridical person, personal service of summons
shall be effected upon its president, managing partner, general manager, corporate secretary,
treasurer, or in-house counsel wherever he or she may be found.

Other modes of serving summons may be done when justified. Service of summons
through other modes will not be effective without showing serious attempts to serve summons
through personal service. Thus, the rules allow summons to be served by substituted service
only for justifiable causes and if the defendant or respondent cannot be served within reasonable
time.98 Substituted service is 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.

Service of summons by publication in a newspaper of general circulation is allowed when

the defendant or respondent is designated as an unknown owner or if his or her whereabouts are
unknown and cannot be ascertained by diligent inquiry.100 It may only be effected after
unsuccessful attempts to serve the summons personally, and after diligent inquiry as to the
defendants or respondents whereabouts.

Service of summons by extraterritorial service is allowed after leave of court when the
defendant or respondent does not reside or is not found in the country or is temporarily out of the
country.

If a defendant or respondent voluntarily appears in trial or participates in the proceedings,

it is generally construed as sufficient service of summons.

In this case, the sheriffs return states: 1. AURORA N. DE PEDRO Unserved for the
reason that according to the messenger of Post Office of Pasig their [sic] is no person in the said
given address.

This return shows no detail of the sheriffs efforts to serve the summons personally upon
petitioner. The summons was unserved only because the post office messenger stated that there
was no Aurora N. De Pedro in the service address. The return did not show that the sheriff
attempted to locate petitioners whereabouts. Moreover, it cannot be concluded based on the
return that personal service was rendered impossible under the circumstances or that service
could no longer be made within reasonable time.

The lack of any demonstration of effort on the part of the sheriff to serve the summons
personally upon petitioner is a deviation from this courts previous rulings that personal service is
the preferred mode of service, and that the sheriff must narrate in his or her return the efforts
made to effect personal service. Thus, the sheriffs return in this case was defective. No
substituted service or service by publication will be allowed based on such defective return.

The issuance of a judgment without proper service of summons is a violation of due

process rights. The judgment, therefore, suffers a jurisdictional defect. The case would have
been dismissible had petitioner learned about the case while trial was pending. At that time, a
motion to dismiss would have been proper. After the trial, the case would have been the proper
subject of an action for annulment of judgment.

What cannot be denied is the fact that petitioner was already notified of respondents
action for annulment of petitioners title when she filed a motion for new trial and, later, a petition
for certiorari. At that time, petitioner was deemed, for purposes of due process, to have been
properly notified of the action involving her title to the property. Lack of jurisdiction could have
already been raised in an action for annulment of judgment.

Thus, when petitioner erroneously filed her motion for new trial and petition for certiorari
instead of an action for annulment of judgment, she was deemed to have voluntarily participated
in the proceedings against her title. The actions and remedies she chose to avail bound
her. Petitioners failure to file an action for annulment of judgment at this time was fatal to her
cause. We cannot conclude now that she was denied due process.
 CONSTANTINO A. PASCUAL, substituted by his heirs, represented byZENAIDA
PASCUALv. LOURDES S. PASCUAL,
G.R. No. 171916 December 4, 2009 PERALTA, J.:

FACTS:
Constatino A. Pascual filed a complaint for Specific Performance before the RTC. In the
Return Service, the Process Server reported that he failed to deliver the summons to the
defendant.

According to the report, the defendant[Dr. Lourdes Pascual] was not at her home and only
her maid was there who refused to receive the summons. His efforts to effect the service is backed
up by a certification of the Barangay in the area. The following day, the Process Server went back
at the defendants place, but again she is not home.

Thereafter, an alias summons was issued by the RTC. Subsequently, the Process Server
returned with the report that a substituted service was effected.

For failure of respondent to file a responsive pleading, petitioner, filed a Motion to Declare
Defendant in Default to which Dr. Lourdes Pascual filed an opposition claiming that she was not
able to receive any summons and a copy of the complaint hence the RTC cannot exercise
jurisdiction over her person.

RTC declared Dr. Lourdes Pascual in Default. She filed a Motion for Reconsideration,
which was denied.

Consequently, the RTC in its decision found favor on Mr. Constantino Pascual against Dr.
Lourdes Pascual. She then filed a Motion to Set Aside Order of Default with the argument of non-
service of Summons. RTC denied and on the same day issued a Certificate of Finality and Entry
of Judgment.

Dr. Lourdes filed a Petition for Certiorari and Prohibition under Rule 65 in the CA. The CA
ruled favoring her.

Petitioner herein [Constantino Pascual] through a Petition for Review on Certiorari under
Rule 45 comes now to the SC.

ISSUE:
Whether the Service of Summons is valid?

HELD:
In a case where the action is in personam and the defendant is in the Philippines, the
service may be done by personal or substituted. A plain reading of Rule 14, Sections 6 and 7
indicates that Personal Service should and always be the first option, only when the said
summons cannot be served within a reasonable time can the process server resort to substituted
service.

The Court gave a discussion as to the nature of the requisites of substituted service in
Manotoc v. Court of Appeals.
 We can break down this section into the following requirements to effect a valid substituted
service:
Impossibility of Prompt Personal Service
Specific Details in the Return
A Person Suitable of Age and Discretion
A Competent Person in Charge

Petitioner contends that there was a valid substituted service of summons as shown in
three officers return.

However, this Court stresses that the Process Server must show that the defendant
cannot be served promptly, or that there was an impossibility of service.

The Return of Summons in this case does not show or indicate the actual exertion or any
steps by the officer to serve the summons.

In the absence of even the barest compliance with the procedure for substituted service
of summons outlined in the Rules, the principle of Presumption of Regularity cannot apply. CA
affirmed in toto.
 RULE 15
MOTIONS

DOUGLAS F. ANAMA v. COURT OF APPEALS, PHILIPPINE SAVINGS BANK, SPOUSES

SATURNINA BARIA &TOMAS CO and THE REGISTER OF DEEDS, METRO MANILA,
DISTRICT II,
G.R. No. 187021 January 25, 2012 MENDOZA, J.:

FACTS:
This is a petition for review under Rule 45 assailing the March 31, 2008 Decision of the
Court of Appeals (CA) and its February 27, 2009 Resolution granting the motion for issuance of
a writ of execution of respondents.

In March 1973, the Petitioner, Douglas F. Anama (Anama), and the Respondent,
Philippine Savings Bank (PSB), entered into a "Contract to Buy," on installment basis, the real
property owned and covered by Transfer Certificate of Title (TCT) No. 301276 in the latter's name.
However, Anama defaulted in paying his obligations thereunder, thus, PSB rescinded the
said contract and title to the property remained with the latter.

Subsequently, the property was sold by PSB to the Spouses Saturnina Baria and Tomas
Co (Co Spouses) who, after paying the purchase price in full, caused the registration of the same
in their names and were, thus, issued TCT No. 14239.

Anama filed before the Respondent Court a complaint for declaration of nullity of the deed
of sale, cancellation of transfer certificate of title, and specific performance with damages against
PSB, the Co Spouses, and the Register of Deeds of Metro Manila, District II.

The Respondent Court dismissed Anama's complaint and upheld the validity of the sale
between PSB and the Co Spouses on August 21, 1991.
Anama appealed, at first, to this Court, and after failing to obtain a favorable decision, to the
Supreme Court.

On January 29, 2004, the Supreme Court rendered judgment denying Anama's petition
and sustaining the validity of the sale between PSB and the Co Spouses. Its decision became
final and executory on July 12, 2004.
Pursuant thereto, the Co Spouses moved for execution, which was granted by the Respondent
Court per its Order, dated November 25, 2005.

Anama filed a motion for reconsideration, however, the Respondent Court, denied his
motion(s) for reconsideration.

January 29, 2004 Decision of this Court became final and executory on July 12, 2004.
Hence, execution was already a matter of right on the part of the respondents and the RTC had
the ministerial duty to issue a writ of execution enforcing a final and executory decision.

Not satisfied with the CA's unfavorable disposition, petitioner filed this petition praying for
the reversal thereof:
 The respondents failed to substantially comply with the rule on notice and hearing when
they filed their motion for the issuance of a writ of execution with the RTC.

ISSUE:
WoN the respondents failed to substantially comply with the rule on notice and hearing
when they filed their motion for the issuance of a writ of execution with the RTC.

HELD:
No, respondents did not violate the Rules of the Court. Wherefore, the petition for review
is denied.

The Court has consistently held that a motion that fails to comply with the requirements is
considered a worthless piece of paper which should not be acted upon. The rule, however, is not
absolute. There are motions that can be acted upon by the court ex parte if these would not cause
prejudice to the other party.

They are not strictly covered by the rigid requirement of the rules on notice and hearing of
motions.

The motion for execution of the Spouses Co is such kind of motion. It cannot be denied
that the judgment sought to be executed in this case had already become final and executory. As
such, the Spouses Co have every right to the issuance of a writ of execution and the RTC has
the ministerial duty to enforce the same as provided in Section 1 and Section 2 of Rule 39 of the
1997 Revised Rules of Civil Procedure.

At any rate, it is not true that the petitioner was not notified of the motion for execution of
the Spouses Co. The records clearly show that the motion for execution was duly served upon,
and received by, petitioner's counsel-of-record, the Quasha Ancheta Pena Nolasco Law Offices,
as evidenced by a "signed stamped received mark" appearing on said pleading. The said law
office, as a matter of fact, did not present any written denial of its valid receipt on behalf of its
client, neither is there proof that the Quasha Ancheta Pena Nolasco Offices has formally
withdrawn its appearance as petitioners counsel-of-record. Thus, there was compliance with the
rules.

The three-day notice rule is not absolute. A liberal construction of the procedural rules is
proper where the lapse in the literal observance of a rule of procedure has not prejudiced the
adverse party and has not deprived the court of its authority. Indeed, Section 6, Rule 1 of the
Rules of Court provides that the Rules should be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every action and proceeding.
Rules of procedure are tools designed to facilitate the attainment of justice, and courts must avoid
their strict and rigid application which would result in technicalities that tend to frustrate rather
than promote substantial justice. Through such notice, the adverse party is given time to study
and answer the arguments in the motion.

The notice requirement is not a ritual to be followed blindly. Procedural due process is not
based solely on a mechanical and literal application that renders any deviation inexorably fatal.
Instead, procedural rules are liberally construed to promote their objective and to assist in
obtaining a just, speedy and inexpensive determination of any action and proceeding.
 Thus, in the absence of a statutory requirement as in the case at bar, it is not essential
that he be given notice before the issuance of an execution against his tangible property; after
the rendition of the judgment he must take "notice of what will follow," no further notice being
"necessary to advance justice."
 IGMEDIO AZAJAR v. THE HONORABLE COURT OF APPEALS (Second Division) and
CHAM SAMCO & SONS, INC.
G.R. No. L-40945 November 10, 1986 NARVASA, J.:

FACTS:
Azajar purchased thru the agent of Cham Samco 100 kegs of nails of various sizes and
paid P18,000 in full. However, Cham Samco only delivered a part of the quantity ordered. Azajar
filed a complaint before the CFI of Cam Sur.

Instead of submitting an answer, Samco filed a motion to dismiss on two grounds: failure
of the complaint to state a cause of action and that venue was improperly laid.

The motion to dismiss contained a notice addressed to the Clerk of Court.

Contending that such notice was fatally defective, Azajar filed a motion to declare Samco
in default, which the court granted. Azajar was allowed to present evidence ex parte and the court
rendered judgment against Samco.

The TC justified its order of default in this wise: that instead of filling an answer to the
complaint, Samco filed a motion to dismiss which is not a motion at all because the notice is
directed to the Clerk of Court instead of the party concerned (as required by Sec.5, Rule 15, RC)
and is without the requisite notice of hearing directed to the CC and not to the parties, and merely
stating that the same be submitted for resolution. It is without the requisite notice of time and place
of hearing.

Aggrieved, Samco went to CA for recourse, but the CA affirmed the decision of the TC.
However, on motion for reconsideration, CA reversed itself and declared that technicalities should
be brushed aside so that Samco can be given a day in court.

ISSUE:
WON the failure of Cham Samco to set its motion to dismiss for hearing on a specified
date and time and for not addressing the same to the party interested is fatal to his cause.

HELD:
Yes. Although the Court sided with CA that technicalities should be set aside to Samco to be
afforded with his day in court.

The law explicitly requires that notice of motion shall be served by the appellant to all
parties concerned at least 3 days before the hearing, together with a copy of the motion, and of
any affidavits and other papers accompanying it; and that notices shall be directed to the parties
concerned stating the time and place for the hearing of the motion. Failure to comply with the
requirement is a fatal flaw.

Such notice is required to avoid surprises upon the opposite party and give the latter time
to study and meet the arguments of the motion as well as to determine or make determinable the
time of submission of the motion for resolution.

Without the notice, the occasion would not arise to determine with reasonable certitude
whether and within what time the adverse party would respond to the motion, and when the motion
might already be resolved by the Court.
The duty to give that notice is imposed on the movant and not on the court.
 RULE 16
MOTION TO DISMISS

LEE BUN TING and ANG CHIA v. HON. JOSE A. ALIGAEN Judge of the Court of First
Instance, of Capiz, 11th Judicial District, Branch II; ATTY. ANTONIO D. AMOSIN, as court-
appointed Receiver; RAFAEL A. DINGLASAN, FRANCISCO A. DINGLASAN, CARMEN A.
DINGLASAN, RAMON A. DINGLASAN, LOURDES A. DINGLASAN, MERCEDES A.
DINGLASAN, CONCEPCION A, DINGLASAN, MARIANO A. DINGLASAN, JOSE A.
DINGLASAN, LORETO A. DINGLASAN, RIZAL A. DINGLASAN, JIMMY DINGLASAN, and
JESSE DINGLASAN
G.R. No. L-30523 April 22, 1977
ANTONIO, J.:

FACTS:
In a previous cases [G. R. No. L-5996, "Rafael Dinglasan, et al. vs. Lee Bun Ting, et al.]
decided by the SC with the same set of private parties, it was found that private respondents sold
to herein petitioner a parcel of land located in Roxas City, Capiz through a conditional sale. Lee,
the buyer, on the other hand avers that it was an absolute sale. Both trial court and CA ruled in
favor of buyer Lee. The SC found that Lee is normally not allowed to purchase the property on
the count of the constitutional prohibition (Section 5. Save in cases of hereditary succession, no
private agricultural land shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the Philippines.- Article 13,
1935 Consitution) But since it was also found out that the buyers (private respondents) are in pari
delicto for selling the property in spite of the constitutional prohibition they are proscribed from
assailing the sale made between them and herein private respondents.

12 years after the above mentioned case was promulgated, the present case for the
recovery of the lot was instituted with the same contention of the respondents Dinglasan that the
sale should be null and void on account of the constitutional prohibition.

A motion to dismiss was filed by petitioners in this case on the ground of res judicata. An
opposition thereto was filed by plaintiffs, with the averment that the decision in the prior case
"cannot be pleaded in bar of the instant action because of new or additional facts or grounds of
recovery and because of change of law or jurisprudence.

The Court of Appeals denied the motion to dismiss.

ISSUE:
Whether or not the motion to dismiss should be granted

HELD:
Yes. The decision of this Court in G. R. No. L-5996, "Rafael Dinglasan, et al. vs. Lee Bun
Ting, et al." constitutes a bar to Civil Case No. V-3064 before the respondent court. Said Civil
case, therefore, should have been dismissed because it is a mere relitigation of the same issues
previously adjudged with finality, way back in 1956, between the same parties or their privies and
concerning the same subject matter. We have consistently held that the doctrine of res
judicata applies where, between a pending action and one which has been finally and definitely
settled, there is Identity of parties, subject matter and cause of action.
 We find that in the ultimate analysis, Civil Case No. V-3064 is but an attempt to reopen
the issues which were resolved in the previous case. Contrary to the contentions of private
respondents, there has been no change in the facts or in the conditions of the parties. Posterior
changes in the doctrine of this Court cannot retroactively be applied to nullify a prior final ruling in
the same proceeding where the prior adjudication was had, whether the case should be civil or
criminal in nature. The determination of the questions of fact and of law by this Court on June 27,
1956 in case No. L-5996 has become the law of the case, and may not now be disputed or
relitigated by a reopening of the same questions in a subsequent litigation between the same
parties and their privies the same subject matter.
 PHILIPPINE NATIONAL BANK v. HERMOGENES HIPOLITO and LEONOR JUNSAY
G.R. No. L-16463 January 30, 1965 MAKALINTAL, J.:

FACTS:
June 18, 1959 a complaint was filed alleging that defendant Hermogenes Hipolito and
Leonor Junsay obtained various sugar crop loans from plaintiff PNB through its Victorias Branch,
evidenced by promissory notes.

The amount of the notes was a total of P9,692.00. Defendants only paid P3,905.61,
leaving a balance of P6,786.39, which, added to accrued interest of P5,213.34, summed up to
P11,999.73 as of January 17, 1957.

Despite repeated demands, defendants failed and refused to pay said amount. May 7,
1957 - defendants went to Atty. Francis I. Medel of the legal department of plaintiff's Victorias
branch and offered a plan of payment of the account

For reasons unknown to plaintiff and probably due to the transfer of defendant Hipolito as
supervising teacher to some other province, his proposed plan of payment did not materialize.
Said offer of plan of payment was an acknowledgment of defendants' just and valid obligation.

The prayer is for the court to order defendants to pay to plaintiff the said amount of
P11,999.73, with accrued annual interest thereon ( rate of 5% from January 17, 1957 up to the
date of payment, plus attorney's fees equivalent to 10%.)

Defendants moved for a bill of particulars denied. Defendants moved to dismiss on the
ground that plaintiff's cause of action already prescribed. attached to the motion: a joint affidavit
and defendants averred that they never made any acknowledgment of indebtedness nor offered
a plan of payment, but on the contrary had always maintained that plaintiff's action had prescribed.
Plaintiffs opposition - contending that the prescriptive period had been suspended by "EO No.
32, known as the Moratorium Law," and interrupted, pursuant to Article 1973 of the old Civil Code,
by plaintiffs written extra-judicial demands as well as by defendants acknowledgment of the
indebtedness.

Defendants reply to plaintiff's opposition - citing Bachrach Motors Co., Inc. v. Chua Tia
Hian, stated that EO. No. 32, if at all, suspended the prescriptive period "only for 2yrs, 4 months
and 16 days, from March 10, 1945, or only up to July 26, 1948," - that the alleged written
extrajudicial demands constitute self-serving evidence; and that defendant Hipolitos letter of
February 16, 1959 cannot be considered as an acknowledgment of indebtedness.

Lower court dismissed the complaint: ruled that the 7 promissory notes constituted 1
single obligation, that the last promissory note dated June 23, 1941, should be considered as the
true date of the written contract, from which the 10-year prescriptive period and such period has
been suspended for 2 years, 4 months and sixteen 16 days (by reason of EO No. 32) until said
Order was declared unconstitutional.

ISSUE:
Whether or not the defendants denial of the allegations constitute as grounds for the
dismissal of the complaint
RULING:
NO. The dismissal is erroneous. In a motion to dismiss defendant hypothetically admits
the truth of the allegations of fact contained in the complaint.

An examination of the complaint herein does not indicate clearly that prescription has set
in. On the contrary, it is belied by the allegation concerning defendants offer of payment made
on May 7, 1957. Such offer hypothetically admitted in the motion, worked as a renewal of the
obligation. An offer of payment works as a renewal of the obligation and prevents prescription
from setting in.

It is true that defendants attached to the motion a joint affidavit of merit wherein they deny
having made an offer of a plan of payment. The denial, being a contrary averment of fact, would
be proper in the answer to the complaint but not in a motion for dismissal, for the contradictory
allegations would require presentation of evidence. Denial of allegations in a complaint is not
proper in a motion to dismiss.

A denial of an allegation of a complaint, as for example the denial of an offer of payment

which would prevent prescription from setting in, would be proper in the answer to the complaint
but not in a motion for dismissal, for the contradictory allegations would require presentation of
evidence

The same is true of the other allegations in the complaint concerning, the demands for
payment sent by plaintiff upon defendants and the partial payments made by them, all or some of
which may have a material bearing on the question of prescription. In other words, the ground for
dismissal not being indubitable, the lower court should have deferred determination of the issue
until after trial of the case on the merits.

The order appealed from is set aside and the case is remanded to the lower court for
further proceedings.
 RULE 17
DISMISSAL OF ACTIONS

DANTE Y. GO v. HON. FERNANDO CRUZ, Judge, etc., CITY SHERIFF OF CALOOCAN

CITY, and CALIFORNIA MANUFACTURING CO., INC.
G.R. No. L-58986 April 17, 1989 NARVASA, J.

FACTS:
On October 26, 1981, California Manufacturing Co., Inc. brought an action in the CFI of
Manila against Dante Go, accusing him of unfair competition. California alleged that Dante Go is
doing business under the name and style of "Sugarland International Products," and engaged like
California in the manufacture of spaghetti, macaroni, and other pasta was selling his products in
the open market under the brand name, "Great Italian," in packages which were in colorable and
deceitful limitation of California's containers bearing its own brand, "Royal." Its complaint
contained an application for preliminary injunction commanding Dante Go to immediately cease
and desist from the further manufacture, sale and distribution of said products, and to retrieve
those already being offered for sale.

About two weeks later, however, or on November 12, 1981, California filed a notice of
dismissal.

Four days afterwards, or on November 16, 1981, California received by registered mail a
copy of Dante Go's answer with counterclaim dated November 6, 1981, which had been filed with
the Court on November 9, 1981.

On November 19, 1981 a fire broke out at the Manila City Hall destroying among others
the sala of Judge Tengco and the records of cases therein kept, including that filed by California
against Dante Go.

On December 1, 1981, California filed another complaint asserting the same cause of
action against Dante Go, this time with the CFI at Caloocan City. This second suit was docketed
as Civil Case No. C-9702 and was assigned to the branch presided over by Judge Fernando A.
Cruz.

On December 3, 1981, Judge Cruz issued an ex parte restraining order against Go.

On the day following the rendition of the restraining order, Dante Go filed the present
petition for certiorari, etc. with this Court praying for its nullification and perpetual inhibition. On
December 11, 1981, this Court, in turn issued a writ of preliminary injunction restraining California,
Judge Cruz and the City Sheriff from enforcing or implementing the restraining order of December
3, 1981, and from continuing with the hearing on the application for preliminary injunction in said
Civil Case No. C-9702. The scope of the injunction was subsequently enlarged by this Court's
Resolution of April 14,1982 to include the City Fiscal of Manila, who was thereby restrained from
proceeding with the case of unfair competition filed in his office by California against Dante Go.

ISSUE:
WON Sec. 1, Rule 17 of the Rules of Court applies in the present case.

HELD:
 No. What marks the loss by a plaintiff of the right to cause dismissal of the action by mere
notice is not the filing of the defendant's answer with the Court (either personally or by mail) but
the service on the plaintiff of said answer or of a motion for summary judgment. This is the plain
and explicit message of the Rules. "The filing of pleadings, appearances, motions, notices, orders
and other papers with the court, "according to Section 1, Rule 13 of the Rules of Court, means
the delivery thereof to the clerk of the court either personally or by registered mail. Service, on
the other hand, signifies delivery of the pleading or other paper to the parties affected thereby
through their counsel of record, unless delivery to the party himself is ordered by the court, by any
of the modes set forth in the Rules, i.e., by personal service, service by mail, or substituted
service.

Here, California filed its notice of dismissal of its action in the Manila Court after the filing of
Dante Go's answer butbefore service thereof. Thus having acted well within the letter and
contemplation of the afore-quoted Section 1 of Rule 17 of the Rules of Court, its notice ipso facto
brought about the dismissal of the action then pending in the Manila Court, without need of any
order or other action by the Presiding Judge. The dismissal was effected without regard to
whatever reasons or motives California might have had for bringing it about, and was, as the
same Section 1, Rule 17 points out, "without prejudice," the contrary not being otherwise "stated
in the notice" and it being the first time the action was being so dismissed.

There was therefore no legal obstacle to the institution of the second action in the
Caloocan Court of First Instance based on the same claim. The filing of the complaint invested it
with jurisdiction of the subject matter or nature of the action. In truth, and contrary to what
petitioner Dante Go obviously believes, even if the first action were still pending in the Manila
Court, this circumstance would not affect the jurisdiction of the Caloocan Court over the second
suit. The pendency of the first action would merely give the defendant the right to move to dismiss
the second action on the ground of auter action pendant or litis pendentia.

DANTE Y. GO, v. HON. FERNANDO CRUZ, Judge, etc., CITY SHERIFF OF CALOOCAN
CITY, and CALIFORNIA MANUFACTURING CO., INC.
G.R. No. L-58986 April 17, 1989 NARVASA, J.:

FACTS:
California Manufacturing filed a case against Dante Go for unfair competition alleging that the
latters pasta products (Great Italian) such as spaghetti and macaroni are packed with confusing
similarity and colourable imitation with the formers Royal Pasta products.

Two weeks later, California filed a Notice of Dismissal without prejudice. Four days after
it received Gos answer with counterclaim. Fire broke out at the Manila City Hall and burned the
records therein including the case filed by California. California filed another complaint based on
the same cause of action against Go in the CFI Caloocan.

Caloocan judge issued a restraining order directing Go to cease and desist from
manufacturing and selling his products. Go claims that the case in Manila is still pending and that
the dismissal sought by California is no longer a matter of right. He further accused California of
forum shopping at Caloocan judges sala.

ISSUE:
Whether or not the dismissal of California is in accordance with the Rules of Court thus
allowing it to file a subsequent case.
HELD:
Yes, it is in accord with RC. Section 1 Rule 17 mandates that notice of dismissal must be
filed any time before service of answer.
California filed its notice of dismissal in CFI manila after Gos filing of answer but before
service thereof. Thus, its notice ipso facto brought about the dismissal of the action pending in
Manila court, without need of any order or action by the presiding judge therein.

No legal obstacle to the institution of the second action in the Caloocan CFI based on the
same claim.

RULE 18
PRE-TRIAL

FRISCO F. SAN JUAN, v. THE SANDIGANBAYAN and THE

PEOPLE OF THE PHILIPPINES
G.R. No. 173956 August 6, 2008 YNARES-SANTIAGO, J.:

FACTS:

Frisco F. San Juan (in his capacity as Chairman of the Public Estates Authority), together
with 26 other accused, were charged before the Sandiganbayan with violation of Sec. 3(e) of RA
3019, for illegally awarding the President Diosdado Macapagal Boulevard Project to accused
Jesusito D. Legaspis J.D. Legazpi Construction and approving the award of the project to the
same company despite lack of compliance with the mandatory requirements and procedure for
bidding, even if no funds were yet available; as well as for causing the allowance and payment to
Legaspi of undue payments in improper overprice in the aggregate amount of P532,926,420.39.

The Sandiganbayan issued a Pre-Trial Order, whereby both parties reserved the right to
present additional documentary evidence.
Instead of proceeding with the presentation of its evidence, the Office of the Special

Prosecutor (representing the People) filed a manifestation with motion for additional
marking of documentary exhibits.

San Juan filed an Opposition, alleging that the motion fails to comply with the three-day
notice rule, thus violating his right to due process.

ISSUES:

Did the Sandiganbayan gravely abuse its discretion when it granted the OSPs motion for
additional marking of exhibits?

Did the admission of additional evidence constitute a violation of San Juans right to due
process?

HELD:

NO to both issues.
 While it is true that any motion that does not comply with the requirements of Rule 15
should not be accepted for filing and, if filed, is not entitled to judicial cognizance, however, this
Court has likewise held that where a rigid application of the rule will result in a manifest failure or
miscarriage of justice, technicalities may be disregarded in order to resolve the case.

In the exercise of its equity jurisdiction, the Court may disregard procedural lapses, so that
a case may be resolved on its merits based on the evidence presented by the parties.

Although the three-day notice rule was not complied with, the Sandiganbayan allowed the
motion based on good cause, i.e. that the markings of the additional documentary evidence at
this period was due to the sheer volume of the supporting documents to the disbursement
vouchers and the fact that such supporting documents were only recently completed and secured.

It cannot be said that there is a violation of San Juans right to due process because he
can still file his objections to the documentary evidence during the trial on the merits of the case.

It must be noted that both parties in this case made reservations to present additional
documentary and testimonial evidence, as may be necessary in the course of the trial; such
reservations were incorporated in the Pre-Trial Order.

FILOIL MARKETING CORPORATION (now Petrophil Corporation) v. DY PAC & CO., INC.
G.R. No. L-40307 April 15, 1988 FELICIANO, J.

FACTS:
Filoil commenced an action for collection of sum of money with interest against Dy Pac on
the ground that the latter fails to pay, notwithstanding repeated demands, the amount due to it for
petroleum products bought on credit.
At the hearing set, neither Dy Pac nor its counsel appeared. Filoil was allowed by the City
Court of Manila to proceed ex parte. The said court rendered a decision on the same date ordering
Dy Pac to pay Filoil.
Dy Pac appealed to CFI Manila which immediately set the case for pre-trial. It ruled that:
[]plaintiff and defendant, who are hereby ordered to prepare a stipulation of facts based on
their exhibits already marked and submit the same to the court the parties are warned that if
they cannot submit the stipulation of facts, the Court will dismiss the appeal.
CFI Manila dismissed the case for failure of the parties to submit the required stipulation
of facts and ordered the immediate return of the records to the City Court for execution.

ISSUE:
Whether or not the case can be dismissed on the ground that the parties failed to submit
a stipulation of facts.

HELD:
No. There is no law which compulsorily requires litigants to stipulate at pre-trial on the
facts and issues that may possibly crop up in a particular case, upon pain dismissal of such case.
The process of securing admissions whether of facts or evidence is essentially voluntary, since
stipulations of facts, like contracts, bind the parties thereto who are not allowed to controvert
statements made therein. Courts cannot compel the parties to enter into an agreement upon the
facts.
Where the parties are unable to arrive at a stipulation of facts and do not reach an
amicable settlement of their controversy, the court must close the proceedings and go forward
the trial of the case. The CFI Manila committed serious error in dismissing Dy Pacs appeal from
the City Courts decision solely on the ground that the parties failed to comply with the order.