Assignment No.
1: Rules 1-7 of murder in the first degree and sentenced to be hung, and it is to this judgment that the present writ
Kring v. Missouri, 107 U.S. 221 (1883)
Decided April 2, 1883
107 U.S. 221
ERROR TO THE SUPREME COURT
OF THE STATE OF MISSOURI
Syllabus
1. A. was convicted of murder in the first degree, and the judgment of condemnation was affirmed by
the Supreme Court of Missouri. A previous sentence pronounced on his plea of guilty of murder in
the second degree, and subjecting him to an imprisonment for twenty-five years, had, on his appeal,
been reversed and set aside. By the law of Missouri in force when the homicide was committed, this
sentence was an acquittal of the crime of murder in the first degree, but before his plea of guilty was
entered the law was changed, so that by force of its provisions, if a judgment on that plea be lawfully
act aside, it shall not be held to be an acquittal of the higher crime. Held that as to this case, the new
law was an ex post facto law within the meaning of Section 10, Article I, of the Constitution of the
United States, and that he could not be again tried for murder in the first degree.
2. The history of the ex post facto clause of the Constitution reviewed in connection with its adoption
as a part of the Constitution and with its subsequent construction by the federal and the state courts.
3. The distinction between retrospective laws, which relate to the remedy or the mode of procedure,
and those which operate directly on the offense, is unsound where, in the latter case, they injuriously
affect any substantial right to which the accused was entitled under the law as it existed when the
alleged offense was committed.
4. Within the meaning of the Constitution, any law is ex post facto which is enacted after the offense
was committed and which, in relation to it or its consequences, alters the situation of the accused to
his disadvantage.
The case is stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is a writ of error to the Supreme Court of Missouri. The plaintiff in error was indicted in the
Criminal Court of St. Louis for murder in the first degree, charged to have been committed January 4,
1875, to which he pleaded not guilty. He has been tried four times before a jury, and sentenced once
on plea of guilty of murder in the second degree. His case has been three times before the court of
appeals of that state and three times before the supreme court of the state. In the last instance, the
supreme court affirmed the judgment of the criminal court, by which he was found guilty
Page 107 U. S. 222
of error is directed.
It is to be premised that the court of appeals is an intermediate appellate tribunal between the
Criminal Court of St. Louis and the supreme court of the state, to which all appeals of this character
are first taken.
At the trial immediately preceding the last one in the court of original jurisdiction, the prisoner was
permitted to plead guilty to murder in the second degree, which plea was accepted by the prosecuting
attorney and the court, and on this plea he was sentenced to imprisonment in the penitentiary for
twenty-five years. He took an appeal from this judgment on the ground that he had an understanding
with the prosecuting attorney that if he would plead as he did, his sentence should not exceed ten
years' imprisonment, and the supreme court reversed that judgment and remanded the case to the St.
Louis Criminal Court for further proceedings. In that court, when the case was again called, the
defendant refused to withdraw his plea of guilty of murder in the second degree, and refused to renew
his plea of not guilty, which had been withdrawn when he pleaded guilty to murder in the second
degree, and the court, against his remonstrance, made an order setting aside his plea of guilty of
murder in the second degree and ordered a general plea of not guilty to be entered. On this plea he
was tried by a jury and found guilty and sentenced to death, as we have already said, which judgment
was affirmed by the supreme court of the state.
By refusing to plead not guilty to murder in the first degree and to withdraw his plea of guilty in the
second degree, defendant raised the point that the proceedings under that plea, namely its acceptance
by the prosecuting attorney and the court, and his conviction and sentence under it, was an acquittal
of the charge of murder in the first degree, and that he could not be tried again for that offense. This
point he insisted on in the circuit court, and relied on it for reversing the judgment in the court of
appeals and in the supreme court.
Both these latter tribunals, in the opinions delivered by them and which are part of the record,
conceded that such was the law of the State of Missouri at the time the homicide was committed. But
they overruled the defense on the ground that by sec. 23, art.
Page 107 U. S. 223
2 of the Constitution of Missouri, which took effect November 30, 1875, that law was abrogated, and
for this reason defendant could be tried for murder in the first degree notwithstanding his conviction
and sentence for murder in the second degree.
As after the commission of the crime for which he was indicted this new constitution was adopted,
and as it is construed by the court of appeals and the supreme court, it changes the law as it then
stood to the disadvantage of the defendant, the jurisdiction of this Court is invoked on the ground
that, as to this case and as so construed, it is an ex post facto law within the meaning of Section 10,
Article I, of the Constitution of the United States.
That it may be clearly seen what the Supreme Court of Missouri decided on this subject and what
consideration they gave it, we extract here all that is said in their opinion about it.
"There is nothing in the point," they say,
"that after an accepted plea of guilty of murder of the second degree the defendant could not be put
upon trial for murder of the first degree. We shall, on that proposition, accept what is said by the
court of appeals in its opinion in this cause."
What that court said on this subject is as follows:
"The theory of counsel for defendant that a plea of guilty of murder in the second degree, regularly
entered and received, precludes the state from afterwards prosecuting the defendant for murder in the
first degree, is inconsistent with the ruling of the supreme court in State v. Kring, 71 Mo. 551, and in
State v. Stephens, id., 535. The declarations of defendant that he would stand upon his plea already
entered were all accompanied with a condition that the court should sentence him for a term not to
exceed ten years, in accordance with an alleged agreement with the prosecuting attorney, which the
court would not recognize. The prisoner did not stand upon his plea of guilty of murder in the second
degree; he must therefore be taken to have withdrawn that plea, and, as he refused to plead, the court
properly directed the plea of not guilty of murder in the first degree to be entered."
"Formerly it was held in Missouri (State v. Ross, 20 Mo. 32) that when a conviction is had of murder
in the second degree on an indictment charging murder in the first degree, if this be set aside, the
defendant cannot again be tried for murder
Page 107 U. S. 224
in the first degree. A change introduced by § 23 of article 2 of the Constitution of 1875 has abrogated
this rule. On the oral argument, something was said by counsel for the defendant to the effect that
under the old rule, defendant could not be put on his trial for murder in the first degree, and that he
could not be affected by the change of the constitutional provision, the crime having been committed
while the old Constitution was in force. There is, however, nothing in this; this change is a change not
in crimes, but in criminal procedure, and such changes are not ex post facto.Gut v. State, 9 Wall. 35;
Cummings v. Missouri, 4 Wall. 326."
We have here a distinct admission that by the law of Missouri, as it stood at the time of the homicide,
in consequence of this conviction of the defendant of the crime of murder in the second degree,
though that conviction be set aside, he could not be again tried for murder of the first degree, and
that, but for the change in the constitution of the state, such would be the law applicable to his case.
When the attention of the court is called to the proposition that if such effect is given to the change of
the constitution, it would in this case be liable to objection as an ex post facto law, the only answer is
that there is nothing in it, as the change is simply in a matter of procedure. Whatever may be the
essential nature of the change, it is one which, to the defendant, involves the difference between life
and death, and the retroactive character of the change cannot be denied.
It is to be observed that the force of the argument for acquittal does not stand upon defendant's plea,
nor upon its acceptance by the state's attorney, nor the consent of the court; but it stands upon the
judgment and sentence of the court by which he is convicted of murder in the second degree, and
sentence pronounced according to the law of that guilt, which was by operation of the same law an
acquittal of the other and higher crime of murder charged in the same indictment. It is sufficient for
this case that the Supreme Court of Missouri, in the opinion we are examining, says it was so, and
cites as authority for it the case of State v. Ross, 29 Mo. 32, in the same court; but counsel for
plaintiff in error cites to the same
Page 107 U. S. 225
effect the cases of State v. Ball, 27 Mo. 327; State v. Smith, 53 Mo. 139.
Blackstone says:
"The plea of autrefois convict, or a former conviction for the same identical crime, through no
judgment was ever given, or, perhaps, will be (being suspended by benefit of clergy or other causes),
is a good plea in bar to an indictment. And this depends upon the same principle as the former -- that
is, autrefois acquit, -- that no man ought to be twice brought in danger of his life for one and the same
crime. Hereupon it has been held that a conviction of manslaughter on an appeal or indictment is a
bar even in another appeal, and much more in an indictment for murder, for the fact prosecuted is the
same in both, though the offenses differ in coloring and degree."
Bl.Com. Book 4, 336. See State v. Norvill, 2 Yerg. (Tenn.) 24; 9 id. 333, 337.
This law, in force at the date of the homicide for which Kring is now under sentence of death, was
changed by the State of Missouri between that time and his trial so as to deprive him of its benefit, to
which he would otherwise have been entitled, and we are called on to decide whether in this respect
and as applied by the court to this case, it is an ex post facto law within the meaning of the
Constitution of the United States.
There is no question of the right of the State of Missouri, either by the her fundamental law or by an
ordinary act of legislation, to abolish this rule, and that it is a valid law as to all offenses committed
after its enactment. The question here is does it deprive the defendant of any right of defense which
the law gave him when the act was committed, so that, as to that offense, it is ex post facto. This term
necessarily implies a fact or act done after which the law in question is passed. Whether it is ex post
facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which the
offense charged was committed. If the law complained of was passed before the commission of the
act with which the prisoner is charged, it cannot. As to that offense, be an ex post facto law. If passed
after the commission of the offense, it is as to that ex post facto, though whether of the class
forbidden by the Constitution may depend on other
Page 107 U. S. 226
matters. But so far as this depends on the time of its enactment, it has reference solely to the date at
which the offense was committed to which the new law is sought to be applied. No other time or
transaction but this has been in any adjudged case held to govern its ex post facto character.
In the case before us, an argument is made founded on a change in this rule. It is said the new law in
Missouri is not ex post facto because it was in force when the plea and judgment were entered of
guilty of murder in the second degree, thus making its character as an ex post facto law to depend not
upon the date of its passage as regards the commission of the offense, but as regards the time of
pleading guilty. That as the new law was in force when the conviction on that plea was had, its effect
as to future trials in that case must be governed by that law. But this is begging the whole question,
for if it was, as to the offense charged, an ex post facto law within the true meaning of that phrase, it
was not in force and could not be applied to the case, and the effect of that plea and conviction must
be decided as though no such change in the law had been made.
Such, however, is not the ground on which the supreme court and the court of appeals placed their
judgment.
"There is nothing,' say they, 'in this; the change is a change not in crimes, but in criminal procedure,
and such changes are not ex post facto."
Before proceeding to examine this proposition, it will be well to get some clear perception of the
purpose of the convention which framed the Constitution in declaring that no state shall pass any ex
post facto law.
It was one of the objections most seriously urged against the new constitution by those who opposed
its ratification by the states that it contained no formal Bill of Rights. Federalist, No. 84. And the
State of Virginia accompanied her ratification by the recommendation of an amendment embodying
such a bill. 3 Elliott's Debates 661.
The feeling on this subject led to the adoption of the first ten amendments to that instrument at one
time, shortly after the government was organized. These are all designed to operate as restraints on
the general government, and most of
Page 107 U. S. 227
them for the protection of private rights of persons and property. Notwithstanding this reproach,
however, there are many provisions in the original instrument of this latter character, among which is
the one now under consideration.
So much importance did the convention attach to it that it is found twice in the Constitution -- first as
a restraint upon the power of the general government and afterwards as a limitation upon the
legislative power of the states. This latter is the first clause of Section 10 of Article I, and its
connection with other language in the same section may serve to illustrate its meaning:
"No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal;
coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts;
pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any
title of nobility."
It will be observed that here are grouped contiguously a prohibition against three distinct classes of
retrospective laws -- namely bills of attainder, ex post facto laws, and laws impairing the obligations
of contracts. As the clause was first adopted, the words concerning contracts were not in it, because it
was supposed that the phrase "ex post facto law" included laws concerning contracts as well as
others. But it was ascertained before the completion of the instrument that this was a phrase which, in
English jurisprudence, had acquired a signification limited to the criminal law, and the words "or any
law impairing the obligation of contracts" were added to give security to rights resting in contracts. 2
Bancroft's History of the Constitution 213.
Sir Thomas Tomlin, in that magazine of learning, the English edition of 1835 of his Law Dictionary,
says:
"Ex post facto is a term used in the law signifying something done after, or arising from or to affect,
another thing that was committed before."
"An ex post facto law is one which operates upon a subject not liable to it at the time the law was
made."
The first case in which this Court was called upon to construe this provision of the Constitution was
that of Calder v. Bull, 3 Dall. 386, decided in 1798. The opinion of the Court was delivered
Page 107 U. S. 228
by Mr. Justice Chase, and its main purpose was to decide that it had no application to acts concerning
civil rights. The opinion, however, is important, as it discusses very fully the meaning of the
provision in its application to criminal cases. It defines four distinct classes of laws embraced by the
clause:
"1st. Every law that makes an action done before the passing of the law, and which was innocent
when done, criminal, and punishes such action. 2d. Every law that aggravates the crime of makes it
greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater
punishment than was annexed to the crime when committed. 4th. Every law that alters the legal rules
of evidence and receives less or different testimony than the law required at the time of the
commission of the offense in order to convict the offender."
Again, he says:
"But I do not consider any law ex post facto within the prohibition that modifies the rigor of the law,
but only these that create or aggravate the crime or increase the punishment or change the rules of
evidence for the purpose of conviction."
In the case before us, the Constitution of Missouri so changes the rule of evidence that what was
conclusive evidence of innocence of the higher grade of murder when the crime was committed --
namely a judicial conviction for a lower grade of homicide -- is not received as evidence at all, or, if
received, is given no weight in behalf of the offender. It also changes the punishment, for whereas the
law, as it stood when the homicide was committed, was that when convicted of murder in the second
degree, he could never be tried or punished by death for murder in the first degree, the new law
enacts that he may be so punished notwithstanding the former conviction. But it is not to be supposed
that the opinion in that case undertook to define by way of exclusion all the cases to which the
constitutional provision would be applicable. Accordingly, in a subsequent case tried before Mr.
Justice Washington, he said in his charge to the jury that
"An ex post facto law is one which in its operation makes that criminal which was not so at the time
the action was performed, or which increases the punishment, or, in short, which, in relation to the
offense or its consequences, alters the situation of
Page 107 U. S. 229
a party to his disadvantage."
United States v. Hall, 2 Wash. 366.
He adds by way of application to that case, which was for a violation of the embargo laws:
"If the enforcing law applies to this case, there can be no doubt that so far as it takes away or impairs
the defense which the law had provided the defendant at the time when the condition of this bond
became forfeited, it is ex post facto and inoperative."
This case was carried to the Supreme Court and the judgment affirmed. 10 U. S. 6 Cranch 171.
The new constitution of Missouri does not take away what, by the law of the state when the crime
was committed, was a good defense to the charge of murder in the first degree.
In the subsequent cases of Cummings v. State of Missouri and Ex Parte Garland, 4 Wall. 71 U. S.
277, 71 U. S. 333, this Court held that a law which excluded a minister of the gospel from the
exercise of his clerical function and a lawyer from practice in the courts unless each would take an
oath that they had not engaged in or encouraged armed hostilities against the government of the
United States was an ex post facto law because it punished, in a manner not before punished by law,
offenses committed before its passage, and because it instituted a new rule of evidence in aid of
conviction. Though this Court was divided in that case, it was because the minority were of the
opinion that the act in question was not a crimes act, and that it inflicted no punishment, in the
judicial sense, for any past crime, and they did not controvert the proposition that it was an ex post
facto law if it had that effect.
In these cases, we have illustrations of the liberal construction which this Court and Mr. Justice
Washington in the circuit court have given to the words "ex post facto law" -- a construction in
manifest accord with the purpose of the constitutional convention to protect the individual rights of
life and liberty against hostile retrospective legislation. Nearly all the states of the Union have similar
provisions in their constitutions, and whether they have or not, they all recognize the obligatory force
of this clause of the federal Constitution on their legislation. A reference to some decisions of those
courts will show the
Page 107 U. S. 230
same liberality of construction of the provision, many of them going much further than is necessary
to go in this case to show the error of the Missouri courts.
In Commonwealth v. McDonough, 13 Allen (Mass.) 581, it was held that a law passed after the
commission of the offense of which defendant stood charged which mitigated the punishment as
regarded the fine and the maximum of imprisonment that might be inflicted was an ex post facto law
as to that case because the minimum of imprisonment was made three months, whereas before, there
was no minimum limit to the court's discretion. This slight variance in the law was held to make it ex
post facto and void as to that case, though the effect of the decision was to leave no law by which the
defendant could be punished, and he was discharged, though found guilty of the offense.
In the case of Hartung v. People, 22 N.Y. 95, after the prisoner had been convicted of murder and
sentenced to death and while her case was pending on appeal, the legislature of that state changed the
law for the punishment of murder in general so as to authorize the governor to postpone indefinitely
the execution of the sentence of death and to keep the party confined in the penitentiary at hard labor
until he should order the full execution of the sentence or should pardon or commute it.
The Court of Appeals held that while this later law repealed all existing punishments for murder, it
was ex post facto as to Mrs. Hartung's case, and could not be applied to it, and this was decided in
face of the fact that it resulted in the discharge of a convicted murderess without any punishment at
all. Judge Denio, in delivering the opinion of the court, makes these excellent observations:
"It is highly probable that it was the intention of the legislature to extend favor, rather than increased
severity, toward this convict and others in her situation, and it is quite likely that had they been
consulted, they would have preferred the application of this law to their cases, rather than that which
existed when they committed the offenses of which they were convicted. But the case cannot be
determined upon such considerations. No one can be criminally punished in this country
Page 107 U. S. 231
except according to a law prescribed for his government by the sovereign authority before the
imputed offense was committed and which existed as a law at that time. It would be useless to
speculate upon the question whether this would be so upon the reason of the thing, and according to
the spirit of our legal institutions, because the rule exists in the form of an express written precept, the
binding force of which no one disputes. No state shall pass any ex post facto law is the mandate of the
Constitution of the United States."
This is reaffirmed by the same court in the cases of Shepherd v. People, 25 N.Y. 406; Green v.
Shumway, 39 N.Y. 418, and In re Petty, 22 Kan. 477, decides the same thing. In State v. Keith, 63
N.C. 140, the Supreme Court of that state held that a law repealing a statute of general amnesty for
offenses arising out of the rebellion was ex post facto and void, though both statutes were passed after
the acts were committed with which defendant was charged.
In State v. Sneed, 25 Tex.Supp. 66, the court held that in a criminal case barred by the statute of
limitations, a subsequent statute which enlarged the time necessary to create a bar was, as to that
case, an ex post facto law, and it could not be supposed to be intended to apply to it.
When, in answer to all this evidence of the tender regard for the rights of a person charged with crime
under subsequent legislation affecting those rights, we are told that this very radical change in the law
of Missouri to his disadvantage is not subject to the rule because it is a change not in crimes, but in
criminal procedure, we are led to inquire what that court meant by criminal procedure.
The word "procedure," as a law term, is not well understood, and is not found at all in Bouvier's Law
Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal
law in America has adopted it as the title to a work of two volumes. Bishop on Criminal Procedure.
In his first chapter, he undertakes to define what is meant by procedure. He says:
"S. 2. The term 'procedure' is so broad in its signification that it is seldom employed in our books as a
term of art. It includes in its meaning whatever is embraced by the three technical terms, 'pleading,'
'evidence,' and 'practice.'
Page 107 U. S. 232
And in defining 'practice' in this sense, he says 'the word means those legal rules which direct the
course of proceeding to bring parties into the court and the course of the court after they are brought
in;' and 'evidence,' he says, as part of procedure,"
"signifies those rules of law whereby we determine what testimony is to be admitted and what
rejected in each case, and what is the weight to be given to the testimony admitted."
If this be a just idea of what is intended by the word "procedure" as applied to a criminal case, it is
obvious that a law which is one of procedure may be obnoxious as an ex post facto law, both by the
decision in Calder v. Bull, 3 Dall. 386, and in Cummings v. Missouri, 4 Wall. 277, for in the former
case, this Court held that "any law which alters the legal rules of evidence, and receives less or
different testimony than the law requires at the time of the commission of the offense in order to
convict the offender" is an ex post facto law, and in the latter, one of the reasons why the law was
held to be ex post facto was that it changed the rule of evidence under which the party was punished.
But it cannot be sustained without destroying the value of the constitutional provision that no law,
however it may invade or modify the rights of a party charged with crime, is an ex post facto law
within the constitutional provision if it comes within either of these comprehensive branches of the
law designated as "pleading," "practice," and "evidence."
Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed by
state legislation, after the offense committed, to the disadvantage of the prisoner, and not held to be
ex post facto because it relates to procedure, as it does according to Mr. Bishop?
And can any substantial right which the law gave the defendant at the time to which his guilt relates
be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is
called a law of procedure? We think it cannot.
Some light may be thrown upon this branch of the argument by recurrence to a few of the numerous
decisions of the highest courts construing the associated phrase in the same sentence
Page 107 U. S. 233
of the Constitution which forbids the states to pass any law impairing the obligation of contracts. It
has been held that this prohibition also relates exclusively to laws passed after the contract is made,
and its force has been often sought to be evaded by the argument that laws are not forbidden which
affect only the remedy, if they do not change the nature of the contract or act directly upon it.
The analogy between this argument and the one concerning laws of procedure, in relation to the
contiguous words of the Constitution, is obvious. But while it has been held that a change of remedy
made after the contract may be valid, it is only so when there is substituted an adequate and sufficient
remedy by which the contract may be enforced, or where such remedy existed and remained
unaffected by the new law. Tennessee v. Sneed,96 U. S. 69.
On this point it has been held that laws are void enacted after the date of the contract:
1. Which give the debtor a longer stay of execution after judgment. Blair v. Williams, 4 Litt. (Ky.) 34;
McKinney v. Carroll, 5 Mon. (Ky.) 98.
2. Which require on a sale of his property under execution an appraisement, and a bid of two-thirds
the value so ascertained. Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Sprott
v. Reid, 3 Greene (Iowa) 489.
3. Which allow a period of redemption after such sale. Lapsley v. Brashear, 4 Litt. (Ky.) 47; Cargill
v. Power, 1 Mich. 369; Robinson v. Howe, 13 Wis. 341.
4. Which exempt from sale under judgment for the debt a larger amount of the debtor's property than
was exempt when the debt was contracted. Edwards v. Kearney,96 U. S. 595, and the cases there
cited; Story's Commentary on the Constitution, sec. 1385.
There are numerous similar decisions showing that a change of the law which hindered or delayed the
creditor in the collection of his debt, though it related to the remedy or mode of procedure by which
that debt was to be collected, impaired the obligation of the contract within the meaning of the
Constitution.
Why are not the rights of life and liberty as sacred as the right of contract? Why should not the
contiguous
Page 107 U. S. 234
and associated words in the Constitution relating to retroactive laws on these two subjects be
governed by the same rule of construction? And why should a law equally injurious to the rights of
the party concerned be under the same circumstances void in one case and not in the other?
But it is said that at the time the prisoner pleaded guilty of the second degree of murder, and at the
time he procured the reversal of the judgment of the criminal court on that plea, the new constitution
was in force, and he was bound to know the effect of the change of the law on his case.
We do not controvert the principle that he was bound to know and take notice of the law. But as
regards the effect of the plea and the judgment on it, the Constitution of Missouri made no change.
It still remained the law of Missouri, as it is the law of every state in the Union, that so long as the
judgment rendered or that plea remained in force, or after it had been executed, the defendant was
liable to no further prosecution for any charge found in that indictment.
Such was the law when the crime was committed, such was the law when he pleaded guilty, such is
the law now in Missouri and everywhere else. So that, in pleading guilty under an agreement for ten
years' imprisonment, both he and the prosecuting attorney and the court all knew that the result would
be an acquittal of all other charges but that of murder in the second degree.
Did he waive or annul this acquittal by prosecuting his writ of error? Certainly not by that act, for if
the judgment of the lower court sentencing him to twenty-five years' imprisonment had been
affirmed, no one will assert that he could still have been tried for murder in the first degree. Nor was
there anything else done by him to waive this acquittal. He refused to withdraw his plea of guilty. It
was stricken out by order of the court against his protest. He refused then to plead not guilty, and the
court in like manner, against his protest, ordered a general plea of not guilty to be filed. He refused to
go to trial on that plea, and the court forced him to trial.
The case rests, then, upon the proposition that, having an
Page 107 U. S. 235
erroneous sentence rendered against him on the plea accepted by the court, he could only take the
steps which the law allowed him to reverse that sentence at the hazard of subjecting himself to the
punishment of death for another and a different offense of which he stood acquitted by the judgment
of that court; that he prosecuted his legal right to a review of that sentence with a halter around his
neck when, if he succeed in reversing it, the same court could tighten it to strangulation, and if he
failed, it did him no good. And this is precisely what has occurred. His reward for proving the
sentence of the court of twenty-five years' imprisonment (not its judgment on his guilt) to be
erroneous is that he is now to be hanged, instead of imprisoned in the penitentiary. No such result
could follow a writ of error before, and as to this effect, the new constitution is clearly ex post facto.
The whole error which results in such a remarkable conclusion arises from holding the provision of
the new constitution applicable to this case when the law is ex post facto and inapplicable to it.
If Kring or his counsel were bound to know the law when they prosecuted the writ of error, they were
bound to know it as we have expounded it. If they knew that by the words of the new constitution,
such a judgment of acquittal as he had when he undertook to reverse it would be no longer an
acquittal after it was reversed, they also knew that, being as to his case an ex post facto law, it could
have no such effect on that judgment.
We are of opinion that any law passed after the commission of an offense which, in the language of
Mr. Justice Washington, in United States v. Hall, "in relation to that offense, or its consequences,
alters the situation of a party to his disadvantage" is an ex post facto law, and in the language of
Denio, J., in Hartung v. People,
"No one can be criminally punished in this country except according to a law prescribed for his
government by the sovereign authority before the imputed offense was committed and which existed
as a law at the time."
Tested by these criteria, the provision of the Constitution of Missouri which denies to plaintiff in
error the benefit which the previous law gave him of acquittal of the charge of murder in the first
degree on conviction of murder in the second
Page 107 U. S. 236
degree is, as to his case, an ex post facto law within the meaning of the Constitution of the United
States, and for the error of the Supreme Court of Missouri in holding otherwise, its judgment is
reversed and the case is remanded to it with direction to reverse the judgment of the Criminal Court
of St. Louis and for such further proceedings as are not inconsistent with this opinion, and it is
So ordered.
MR. JUSTICE MATTHEWS, with whom concurred MR. CHIEF JUSTICE WAITE, MR. JUSTICE
BRADLEY, and MR. JUSTICE GRAY, dissenting.
THE CHIEF JUSTICE WAITE, MR. JUSTICE BRADLEY, MR. JUSTICE GRAY, and myself are
unable to concur in the judgment and opinion of the Court in this case, and the importance of the
question determined constrains us to state the grounds of our dissent. The material facts are these:
The plaintiff in error, at March term, 1875, of the St. Louis Criminal Court, was indicted for murder
in the first degree. On his arraignment, he pleaded "not guilty." At the November term of the same
year, a trial was had which resulted in a verdict of guilty of murder in the first degree and a sentence
of death. That judgment was reversed on appeal, and twice subsequently there were mistrials. On
November 12, 1879, the defendant, by consent of the circuit attorney and leave of the court, withdrew
his plea of not guilty and entered a plea of guilty of murder in the second degree. He was thereupon
sentenced to imprisonment in the penitentiary for a term of twenty-five years. The prisoner then filed
a motion to set aside this judgment and sentence, and to allow him to withdraw the plea of guilty of
murder in the second degree and to permit him "to have his original plea of not guilty entered to
record, to the end that he may have a trial upon the merits of his case before a jury." In support of this
motion reasons were assigned, in substance, that he had withdrawn his original plea of not guilty and
entered the plea of guilty of murder in the second degree upon the faith of an understanding
previously had with the circuit attorney, representing the prosecution, that if he would do so the
sentence should not exceed ten years in the penitentiary, which understanding
Page 107 U. S. 237
was violated by the sentence complained of. The court overruled the motion, but upon appeal the
judgment was reversed on the ground alleged by the prisoner that he had been misled, and the cause
was remanded for further proceedings. On receipt of this mandate, the trial court, the prisoner
refusing to withdraw his plea of guilty of murder in the second degree and to enter a plea of not
guilty, entertained the motion previously made by him, for refusing to grant which the judgment had
thus been reversed, and granted it, setting aside the plea of guilty, and, the prisoner standing mute,
ordered a plea of not guilty to be entered. On this plea a trial was had at October term, 1881, when
the prisoner was found guilty of murder in the first degree and again sentenced to death. An appeal
was prosecuted from this judgment, which, however, was affirmed by the Supreme Court of
Missouri, and is brought here for examination by the present writ of error on the ground that it has
been rendered in violation of a right secured to the plaintiff in error by the Constitution of the United
States.
The right which it is alleged has been violated is supposed to arise in this way. At the time of the
commission of the offense in 1875, it was well established as the law of Missouri by the decisions of
the supreme court of the state that
"when a person is indicted for murder in the first degree, and is put upon his trial and convicted of
murder in the second degree, and a new trial is ordered at his instance, he cannot legally be put upon
his trial again for the charge of murder in the first degree; he can be put upon his trial only upon the
charge of murder in the second degree."
State v. Ross, 29 Mo. 32; State v. Smith, 53 Mo. 139. And it is not denied that a plea of guilty of
murder in the second degree, accepted by the state, would have been at that time equally an acquittal
of the charge of murder in the first degree, having the same force as to future trials as a conviction of
murder in the second degree, although the judgment should be reversed on the application of the
prisoner.
On November 30, 1875, the State of Missouri adopted a new constitution, which contained (sec. 23,
art. 2) the provision that
"If judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent
a new trial of the
Page 107 U. S. 238
prisoner on a proper indictment or according to correct principles of law."
In the case of State v. Sims, 71 Mo. 538, it was decided that this provision overthrows the rule laid
down in the case of State v. Ross, ubi supra, and was
"equivalent to declaring that when such judgment is reversed for error at law, the trial had is to be
regarded as a mistrial, and that the cause, when remanded, is put on the same footing as a new trial as
if the cause had been submitted to a jury, resulting in a mistrial by the discharge of the jury in
consequence of their inability to agree on a verdict."
The rule thus introduced by the Constitution of 1875 was the one applied in the trial of the prisoner,
instead of that previously in force, and the contention is that to apply it in a case such as the present,
where the alleged offense was committed prior to the adoption of the new constitution, is to give it
operation as an ex post facto law in violation of the prohibition of the Constitution of the United
States.
In examining this proposition it must constantly be borne in mind that the plea of guilty of murder in
the second degree, the legal effect of which, when admitted, is the precise subject of the question,
was entered long after the new rule established by the Constitution of Missouri took effect; that the
prisoner himself moved to set it aside and for leave to renew his plea of not guilty on the ground that
he had been misled into making his plea of guilty under circumstances that would make it operate as
a fraud upon his rights if it were permitted to stand, and that because the court denied this motion, he
made and prosecuted his appeal for a reversal of its judgment in full view of the rule, then in force, of
the application of which he now complains, which expressly declared what should be the effect of
such a reversal.
The classification of ex post facto laws first made by Mr. Justice Chawe in Calder v. Bull, 3 Dall.
386, 3 U. S. 390, seems to have been generally accepted. It is as follows:
"1st, Every law that makes an action done before the passing of the law, and which was innocent
when done, criminal, and punishes such action. 2d, Every law that aggravates a crime or makes it
greater than it was when committed. 3d, Every law that
Page 107 U. S. 239
changes the punishment and inflicts a greater punishment than the law annexed to the crime when
committed. 4th, Every law that alters the legal rules of evidence, and receives less or different
testimony than the law required at the time of the commission of the offense, in order to convict the
offender."
This definition was the basis of the opinion of the Court in the cases of Cummings v. State, 4 Wall.
277, and Ex Parte Garland, 4 Wall. 333, and was expressly relied on in the opinion of the dissenting
judges, which says:
"This exposition of the nature of ex post facto laws has never been denied, nor has any court or any
commentator on the Constitution added to the classes of laws here set forth, as coming within that
clause of the organic law."
P. 71 U. S. 391.
Now under which of these heads does the controverted rule of the Missouri Constitution fall? It
cannot be contended that it is embraced in either of the first three. If in any, it must be covered by the
fourth. But what rule of evidence existing at the time of the commission of the offense is altered to
the disadvantage of the prisoner? The answer made is this: that at that time, an accepted plea of guilty
of murder in the second degree was conclusive proof that the prisoner was not guilty of murder in the
first degree, and that it was abrogated so as to deprive the prisoner of the benefit of it. But while that
rule was in force, the prisoner had no such evidence of which he could avail himself. How, then, has
he been deprived of any benefit from it? He had not, during the period while the rule was in force,
entered any plea of guilty of murder in the second degree, and no such plea had been admitted by the
state. All that can be said is that if, while the rule was in force, he had entered such a plea with the
consent of the state, its legal effect would have been as claimed, and by its change he has lost what
advantage he would have had in such a contingency. But it does not follow that such a contingency
would have happened. It was not within the power of the prisoner to bring it about, for it required the
concurrence and consent of the state, and it cannot be assumed that under such a rule and in such case
that consent would have been given. It is not enough to say that under a ruling of the court, a party
might have enough to say that, under a ruling of the court, a party might have lost the benefit of
certain evidence,
Page 107 U. S. 240
if such evidence had existed. To predicate error in such a case, it must be shown that the party had
evidence of which in fact he has been illegally deprived. Such a case would have been presented here
if the plea of guilty of murder in the second degree had been entered and accepted before the
Constitution of 1875 took effect and while the old rule was in force. Then the law would have taken
effect upon the transaction between the prisoner and the prosecution in the acceptance of his plea; the
status of the prisoner would have been fixed and declared; he would have stood acquitted of record of
the charge of murder in the first degree, and the new rule would have been an ex post facto law if it
had made him liable to conviction and punishment for an offense of which by law he had been
declared to be innocent.
But in the circumstances of the present case, the evidence of which it is said the prisoner has been
deprived came into being after the law had been changed. It was evidence created by the law itself,
for it consists simply in a technical inference, and the law in force when it was created necessarily
determines its quality and effect. That law did not operate upon the offense to change its character,
nor upon its punishment to aggravate it, nor upon the evidence which, according to the law in force at
the time of its commission, was competent to prove or disprove it. It operated upon a transaction
between the prisoner and the prosecution which might or might not have taken place, which could not
take place without mutual consent, and when it did take place, that consent must be supposed to have
been given by both with reference to the law as it then existed and not with reference to a law which
had then been repealed.
It is the essential characteristic of an ex post facto law that it should operate retrospectively so as to
change the law in respect to an act or transaction already complete and past. Such is not the effect of
the rule of the Constitution of Missouri now in question. As has been shown, it does not in any
particular affect the crime charged either in its definition, punishment, or proof. It simply declares
what shall be the legal effect in the future of acts and transactions thereafter taking place. It enacts
that any future erroneous and unlawful
Page 107 U. S. 241
conviction for a less offense, thereafter reversed on the application of the accused, shall be held for
naught to all intents and purposes, and shall not after such reversal operate as a technical acquittal of
any higher grade of crime for which there might have been a conviction under the same indictment. It
imposes upon the prisoner no penalty or disability. It cannot affect the case of any individual except
upon his own request, for he must take the first step in its application. When he pleads guilty of
murder in the second degree, he knows that its acceptance cannot operate as an acquittal of the higher
offense. When he asks to have the conviction reversed, he understands that if his application is
granted, the judgment must be set aside with the same effect as if it had never been rendered. It does
not touch the substance or merits of his defense, and is in itself a sensible and just rule in criminal
procedure.
And "so far as mere modes of procedure are concerned," says Judge Cooley, Const.Lim. 272,
"A party has no more right in a criminal than in a civil action to insist that his case shall be disposed
of under the law in force when the act to be investigated is charged to have taken place. Remedies
must always be under the control of the legislature, and it would create endless confusion in legal
proceedings if every case was to be conducted only in accordance with the rules of practice, and
heard only by the courts in existence, when its facts arose. The legislature may abolish courts and
create new ones, and it may prescribe altogether different modes of procedure in its discretion,
though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections
with which the existing law surrounds the person accused of crime. Statutes giving the government
additional challenges, and others which authorized the amendment of indictments, have been
sustained and applied to past transactions, as doubtless would be any similar statute calculated merely
to improve the remedy, and in its operation working no injustice to the defendant and depriving him
of no substantial right."
Accordingly, it was held by this Court in Gut v. State, 9 Wall. 35, in the language of MR. JUSTICE
FIELD, delivering its opinion, that
"A law changing the place of trial from one county to another
Page 107 U. S. 242
county in the same district, or even to a different district from that in which the offense was
committed or the indictment found, is not an ex post facto law, though passed subsequent to the
commission of the offense or the finding of the indictment."
And in the case of Ex Parte McCardle, 7 Wall. 506, it was the unanimous decision of the Court that it
was competent for Congress, in a case affecting personal liberty, to deprive the complaining party of
the benefit of an appeal from the judgment of an inferior court after his appeal had taken effect and
while it was pending. It would have been equally competent for the Constitution of Missouri to have
declared that no appeal or writ of error should thereafter be allowed to reverse the judgment of the
court of original jurisdiction in any pending criminal cause, which certainly would be giving a
different, because irreversible, effect to that judgment from what such judgments would have had
under the law in force when the offense was committed. If it be true in the logic of the law, as it is in
all its other applications, that the greater includes the less, then it was competent for that constitution
to provide that as to all judgments in criminal cases thereafter rendered which should be reversed for
error on the appeal of the defendant, the effect of the reversal should be such as not to be a bar to a
subsequent conviction for any crime described in the indictment, for that would have been to say not
that there shall be no appeal at all, but that if an appeal is taken, its effect shall only be such as is
prescribed in the law allowing it.
In Commonwealth v. Holley, 3 Gray (Mass.) 458, Shaw, C.J., said:
"The object of the declaration of rights was to secure substantial privileges and benefits to parties
criminally charged, not to require particular forms except where they are necessary to the purposes of
justice and fair dealing toward persons accused, so as to ensure a full and fair trial."
And in Commonwealth v. Hall, 97 Mass. 570, the court, speaking of a statutory provision authorizing
the amendment of indictments so as to allege a former conviction the effect of which was to increase
the penalty, said:
"We entertain no doubt of the constitutionality of this section, which promotes the ends of justice by
taking away a purely technical objection, while
Page 107 U. S. 243
it leaves the defendant fully and fairly informed of the nature of the charge against him and affords
him ample opportunity for interposing every meritorious defense. Technical and formal objections of
this nature are not constitutional rights."
These observations, it is not necessary to point out, are entirely applicable to the present argument.
Still stronger and more to the point is what was said by Shaw, C.J., in Jacquins v. Commonwealth, 9
Cush. (Mass.) 279, where it was held that a statute authorizing the Supreme Judicial Court, on a writ
of error, on account of error in the sentence, to render such judgment therein as should have been
rendered, applied to past judgments, and was not, on that account, an ex post facto law. That eminent
judge said:
"It was competent for the legislature to take away writs of error altogether in cases where the
irregularities are formal and technical only, and to provide that no judgment should be reversed for
such cause. It is more favorable to the party to provide that he may come into court upon the terms
allowed by this statute than to exclude him altogether. This act operates like the act of limitations.
Suppose an act was passed that no writ of error should be taken out after the lapse of a certain period.
It is contended that such an act would be unconstitutional on the ground that the right of the convict
to have his sentence reversed upon certain conditions had once vested. But this argument overlooks
entirely the well settled distinction between rights and remedies."
Precisely the same distinction between laws ex post facto and those which merely affect the remedy,
and are therefore applicable to the case of an offense previously committed, is well illustrated by the
case of Ratzky v. People, 29 N.Y. 124. There, the prisoner had been convicted of murder in the first
degree; the offense was committed when the act of 1860 was is force, which prescribed the mode of
punishment; he was sentenced, however, in accordance with the terms of an act passed in 1862,
subsequently to the commission of the offense, and which prescribed a different mode of punishment.
On this account the judgment was held to be erroneous and was reversed on the ground that the act of
1862, applied to offenses previously committed, was ex post facto. But at the
Page 107 U. S. 244
time of the commission of the offense in 1861, it was the well settled law of New York, as decided in
Shepherd v. People, 25 N.Y. 406, that when a wrong judgment had been pronounced, although the
trial and conviction were regular, the prisoner could not, on the reversal of judgment, be subject to
another trial, but would be entitled to his discharge. But on April 24, 1863, after the prisoner had
been tried and convicted but before judgment and sentence were pronounced, an act of the legislature
took effect which provided that the appellate court should have power, upon any writ of error, when it
should appear that the conviction had been legal and regular, to remit the record to the court in which
such conviction had been had, to pass such sentence thereon as the appellate court should direct. But
for the authority conferred by this act, the Court of Appeals stated that it would have had no power,
upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment or
remit the record to the oyer and terminer to give such judgment, but, on the contrary, would have
been obliged to have discharged him, the law not authorizing another trial. Nevertheless, the Court of
Appeals gave effect to the act of 1863, reversed the judgment, and sent the record down with
directions to sentence the prisoner to death in accordance with the provisions of the act of 1860,
holding that the act of 1863 was not an ex post facto law. And yet it deprived the prisoner of the
benefit of a rule of law in force at the time the offense was committed, viz., that if he should be
erroneously sentenced, and the judgment should be reversed, he would be entitled to be discharged
and forever after protected against further prosecution for the same offense as well as against any
second judgment upon the same verdict. This decision deserves particular consideration, for it
involves the very question under discussion. At the time of the commission of his offense and at the
time of his trial and conviction, a rule of law in New York had been well established that upon a
reversal of judgment in a capital case for error in the sentence, the prisoner was entitled to be
discharged, and his former conviction, notwithstanding the reversal, was a conclusive defense upon
any subsequent trial for the same offense. After trial and conviction a statute was passed which
abrogated
Page 107 U. S. 245
that rule and declared that a subsequent reversal of judgment for error merely in the sentence should
not have that effect, but that even without a new trial, a new judgment might be entered upon the
verdict. This gave to the verdict and to the subsequent proceeding an effect entirely different from
what they would have had under the law as it stood at the time of the commission of the offense, and
deprived the prisoner of the advantage of the rule then in force. After that statute took effect, he
prosecuted a writ of error and reversed the judgment for error in the sentence, and it was held that the
effect of that reversal was determined by the law in force when it was rendered, and not by the law in
force when the trial and verdict were had and when the offense was committed.
Davies, J., said, p. 132:
"It would follow from these considerations and the authority of the case of People v. Shepherd, 25
N.Y. 406, that a wrong judgment having been pronounced, although the trial and conviction were
regular, this prisoner could not be subjected to another trial, and would be entitled to his discharge.
That would unquestionably be so but for the Act of April 24, 1863. . . . In the present case, that act
became operative before the judgment and sentence were pronounced and given and before the writ
of error was prosecuted to this court. It was therefore in force when the writ of error in this case was
prosecuted, and its provisions are applicable to the duty imposed upon this tribunal by virtue of that
proceeding. . . . But for the authority conferred upon this Court by that statute, it would have had no
power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate
judgment or remit the record to the oyer and terminer to give such judgment."
And Denio, C.J., said:
"The remaining question is whether the judgment should be reversed and the prisoner discharged
according to the former rule, or the record be remitted to the oyer and terminer to pass a legal
sentence upon the conviction. This latter course is now authorized by statute. Laws 1863, c. 226, p.
406. The conviction was legal and the sentence only was erroneous. The only question is whether the
act, having been passed after the conviction, though before judgment was given in the supreme court,
could be applied to the
Page 107 U. S. 246
case. I am of opinion that it can be applied. The forms of judicial proceedings are under control of the
legislature."
And the court accordingly, instead of ordering the prisoner to be discharged, according to the rule in
force at the time the offense was committed and even at the time of his trial and conviction, directed
the record to be remitted to the court of oyer and terminer with instructions to sentence him to suffer
death for the crime of which he had been convicted.
The counterpart and complement of the decision in Ratzky's Case are found in Hartung v. People.
There, the prisoner had been convicted of murder and sentenced to death, but at the time the
judgment was rendered, the law in force at the time of the commission of the offense providing for its
punishment had been repealed and the repealing act substituted a different punishment. It was on this
account adjudged to be an ex post facto law and void, and the judgment was reversed. 22 N.Y. 95.
Subsequently the repealing act was itself repealed, and the former act in force when the offense was
committed was restored. Then the prisoner was again tried, having pleaded a former conviction, but
was found guilty and adjudged to suffer death in accordance with the law existing at the time the
offense was committed. This judgment was thereupon reversed, and the prisoner ordered to be
discharged on the ground that the act restoring the law as it stood when the offense was committed
was an ex post facto law because, at the time it was passed, the prisoner had been adjudged to be
legally free from punishment of any kind on account of her offense. 26 N.Y. 167. The very point of
the decision was that while it was competent for the legislature to repeal the repealing act so that it
could not thereafter be availed of, it could not destroy the effect of a judgment actually pronounced
while that act was in force. It is manifest that if in that case the prisoner had not been tried at all until
after the law had been thus twice changed, she could not have claimed to have had the vested interest
in the first repealing act which was allowed to her in the judgment actually rendered when it was in
force. It was because the subsequent law, if applied, would have changed the legal effect of that
judgment that it was adjudged to be an ex post facto law.
Page 107 U. S. 247
It was precisely upon this principle that the Supreme Court of North Carolina proceeded in the case
of State v. Keith, 63 N.C. 140. There, the prisoner, in custody on a charge of murder, moved for a
discharge on the ground that his offense was within the provisions of the Amnesty Act of 1866-67.
This was admitted to be the case, but the motion was opposed on the ground that the amnesty act had
been repealed. It was held that the effect of the pardon was, so far as the state was concerned, to
destroy and entirely efface the previous offense, as if it had never been committed, and that to give to
the repeal of the amnesty act the effect, as claimed, of reviving the offense would make it an ex post
facto law, making criminal that which, when it took effect, was not so and taking from the prisoner
his vested right to immunity.
But suppose in that case the provisions of the amnesty act had been conditional, and not absolute, so
that no one could plead its pardon unless he had taken certain formal preliminary steps to obtain the
benefit of its terms, and that before the prisoner had done so, the act had been repealed, could it be
claimed that in that event, he had obtained a vested right to immunity, and that its repeal operated as
an ex post facto law? Clearly not. And in reference to this case it is also to be observed that the fact,
the legal character of which was changed by the subsequent law, was the fact of pardon, and not a
fact which existed at the time of the commission of the offense. The repealing act was ex post facto
because it had the effect to change the legal character of the facts as they existed at the time of its
passage.
In State v. Arlin, 39 N.H. 179, a prisoner was indicted for a robbery, which at the time of its
commission, was punishable by imprisonment for life, but by the same law he was entitled to have
counsel assigned him by the government, process to compel the attendance of witnesses, and other
similar privileges. A subsequent law mitigated the severity of the punishment and repealed the act
giving these privileges. It was held that the act was not ex post facto because it changed the
punishment to the advantage of the prisoner, and that he was not entitled to the incidental benefits
secured by the law in force when the offense was committed. The court remarked that,
Page 107 U. S. 248
by committing the offense, the prisoner had not acquired a vested right to enjoy the privileges to
which he would have been entitled if tried under the law subjecting him to imprisonment for life.
The rule of law in Missouri the benefit of which is claimed for the prisoner in this proceeding
notwithstanding its repeal by the constitution of the state before it could have been applied in his case
was established not by statute, but by a series of judicial decisions of the supreme court of the state.
Those decisions might at any time have been reversed by the same tribunal and a new rule introduced
such as that actually declared by the constitution. In that event, could it be said with any plausibility
that the latter decisions reversing the law as previously understood could not be applied to all
subsequent proceedings in cases where, upon a plea of guilty of murder in the second degree
thereafter entered and accepted, an erroneous judgment thereon had been reversed, notwithstanding,
when the offense was committed, the prior decisions had been in force? Would the new rule, as
introduced and applied by the later judicial decisions, be in violation of the prohibition of the
Constitution of the United States against ex post facto laws? But the Constitution of Missouri has
done no more than this.
The nature and operation of the rule are not affected by any peculiarity in the authority which
establishes it. If it is not objectionable as an ex post facto law, when introduced by judicial decision, it
is because it is not so in its nature, and if not, it does not become so when introduced by a legislative
declaration.
There are doubtless many matters of mere procedure which are of vital consequence, but in respect to
them the power of Congress as to crimes against the United States is restrained by positive and
specific limitations, carefully inserted in the organic law, prohibiting unreasonable searches and
seizures and general warrants, providing that no one shall be held to answer for a capital or otherwise
infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the
military service; that no person shall for the same offense be twice put in jeopardy of life or limb nor
be compelled to testify against himself; that every accused person shall be secured in the right to a
public trial by an impartial
Page 107 U. S. 249
jury in a previously ascertained district in which the alleged offense is charged to have been
committed; to be informed of the nature and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have
the assistance of counsel for his defense. But these are limitations upon the legislative power of the
United States, whether prospective or retrospective, and not upon that of the states, and although the
constitutions of all the states, probably, have equivalent guarantees of individual rights, the violation
of none of them by a state tribunal, under state legislation, could present a case for the exercise of
supervisory jurisdiction by this Court. The prohibition against bills of attainder is the only one of this
class which applies to both the government of the United States and those of the states, and while a
bill of attainder may be an ex post facto law, it is not necessarily so, as it may be merely a matter of
procedure -- a trial by a legislative instead of a judicial body.
But in addition to these matters of procedure, which are specially protected against legislative change
either for the past or the future, there may be others in which changes with a retrospective effect are
forbidden by the prohibition against ex post facto laws. Such, we have already seen, would be laws
which authorize conviction upon less evidence than was required at the time of the commission of the
offense or which altered to the disadvantage of the accused the nature and quantity of proof at that
time required to substantiate a legal defense, or which, in other words, gave to the circumstances
which constituted and attended the act a legal signification more injurious to the accused than was
attached to them by the law existing at the time of the transaction.
It is doubtless quite true that it is difficult to draw the line in particular cases beyond which legislative
power over remedies and procedure cannot pass without touching upon the substantial rights of the
parties affected, as it is impossible to fix that boundary by any general words. The same difficulty is
encountered, as the same principle applies, in determining in civil cases how far the legislature may
modify the remedy without impairing or enlarging the obligation of contracts. Every case must be
decided upon its own circumstances, as the
Page 107 U. S. 250
question continually arises and requires an answer. But it is a familiar principle that before rights
derived under public laws have become vested in particular individuals, the state, for its own
convenience and the public good, may amend or repeal the law without just cause of complaint. "The
power that authorizes or proposes to give," said Mr. Justice Woodbury in Merrill v. Sherburne, 1
N.H. 213, "may always revoke before an interest is perfected in the donee." Accordingly, the heir
apparent loses no legal right if, before descent cast, the law of descents is changed so as to shift the
inheritance to another, however his expectations may be disappointed. And while it would be a
violation of the constitutional maxim which forbids retrospective legislation inconsistent with vested
rights to deprive, by a repeal of statutes of limitation, a defendant of a defense which had become
perfect while they were in force, yet if, before the bar had become complete, he should be deprived of
an expected defense by an extension of time in which suit might be brought, he would have no just
cause to object that he was compelled to meet the case of his adversary upon its merits.
In respect to criminal offenses, it is undoubtedly a maxim of natural justice embodied in
constitutional provisions that the quality and consequences of an act shall be determined by the law in
force when it is committed, and of which therefore the accused may be presumed to have knowledge,
so that the definition of the offense, the character and degree of its punishment, and the amount and
kind of evidence necessary to prove it cannot be changed to the disadvantage of the party charged ex
post facto. And this equally applies to, because it includes, the matters which, existing at the time and
constituting part of the transaction, affect its character, and thus form grounds of mitigation or
defense, for the accused is entitled to the benefit of all the circumstances that attended his conduct,
according to their legal significance, as determined at the time. All these are incidents that belong to
the substance of the thing charged as a crime, and therefore come within the saving which preserves
the legal character of the principal fact. But matters of possible defense, which accrue under
provisions of positive law, which are arbitrary and technical, introduced for public convenience or
from motives of policy,
Page 107 U. S. 251
which do not affect the substance of the accusation or defense, and form no part of the res gestae, are
continually subject to the legislative will unless, in the meantime, by an actual application to the
particular case, the legal condition of the accused has been actually changed. His right to maintain
that status, when it has become once vested, is beyond the reach of subsequent law.
The present, as we have seen, is not such a case. The substance of the prisoner's defense upon the
merits has not been touched; no vested right under the law had wrought a result upon his legal
condition before its repeal. He is therefore in no position to invoke the constitutional prohibition
which is, by the judgment of this Court, now interposed between him and the crime of which he has
been convicted.
In our opinion, the judgment of the Supreme Court of Missouri should be affirmed.
G.R. No. L-6287 December 1, 1911
THE MANILA RAILROAD COMPANY, plaintiff-appellee,
vs.
THE ATTORNEY-GENERAL, representing the Insular Government, et al., defendants-
appellants.
W. A. Kincaid and Thomas L. Hartigan, for appellant.
Antonio Constantino, for appellee.
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the Province of Tarlac dismissing
the action before it on motion of the plaintiff upon the ground that the court had no jurisdiction of the
subject matter of the controversy.
The question for our consideration and decision is the power and authority of a Court of First
Instance of one province to take cognizance of an action by a railroad company for the condemnation
of real estate located in another province.
In the month of December, 1907, the plaintiff began an action in the Court of First Instance of the
Province of Tarlac for the condemnation of certain real estate, stated by the plaintiff in his complaint
to be located in the Province of Tarlac. It is alleged in the complaint that the plaintiff is authorized by
law to construct a railroad line "from Paniqui to Tayug in the Province of Tarlac," and it is for the
purpose of condemning lands for the construction of such line that this action is brought. The land
sought to be condemned is 69,910 square meters in area. The complaint states that before beginning
the action the plaintiff had caused to be made a thorough search in the office of the registry of
property and of the tax where the lands sought to be condemned were located and to whom they
belonged. As a result of such investigations the plaintiff alleged that the lands in question were
located in the Province of Tarlac. The defendants in one action all of the different owners of or
persons otherwise interested in the 69,910 square meters of land to be condemned. After filing and
duly serving the complaint the plaintiff, pursuant to law and pending final determination of the
action, took possession of and occupied the lands described in the complaint, building its line and
putting the same in operation. During the progress of the action a commission to appraise the value of
the lands was duly appointed, which, after taking oral testimony, amounting to 140 typewritten pages
when transcribed, and after much labor and prolonged consideration, made a report consisting of
about 55 typewritten pages, resolving the question submitted to it. On the coming in of this report the
court, by order entered the 27th of September, 1909, set the 11th day of October following for the
hearing thereon.
On the 4th day of October the plaintiff gave notice to the defendants that on the 9th day of October a
motion would be made to the court to dismiss the action upon the ground that the court had no
jurisdiction of the subject matter, it having just been ascertained by the plaintiff that the land sought
to be condemned was situated in the Province of Nueva Ecija, instead of the Province of Tarlac, as
alleged in the complaint. This motion was heard and, after due consideration, the trial court dismissed
the action upon the ground presented by the plaintiff. This appeal is taken from said judgment of
dismissal.
The decision of the learned trial court was based entirely upon the proposition, already referred to,
that in condemnation proceedings, and in all other proceedings affecting title to land, the Court of
First Instance of a given province has no jurisdiction, power or authority where the land is located in
another province, and that no such power, authority, or jurisdiction can be conferred by the parties.
Sections 55 and 56 of Act No. 136 of the Philippine Commission confer jurisdiction upon the Courts
of First Instance of these Islands with respect to real estate in the following words:1awphi1.net
SEC. 55. Jurisdiction of Courts of First Instance. — The jurisdiction of Courts of
First Instance shall be of two kinds:
1. Original; and
2. Appellate.
SEC. 56. Its original jurisdiction. — Courts of First Instance shall have original
jurisdiction: .
xxx xxx xxx
2. In all civil actions which involve the title to or possession of real property, or
any interest therein, or the legality of any tax, impost, or assessment, except
actions of forcible entry into, and detainer of lands or buildings, original
jurisdiction of which is by this Act conferred upon courts of justice of the peace.
It is apparent from the wording of these sections that it was the intention of the Philippine
Commission to give to the Courts of First Instance the most perfect and complete jurisdiction
possible over the subject matters mentioned in connection therewith. Such jurisdiction is not made to
depend upon locality. There is no suggestion of limitation. The jurisdiction is universal. Nor do the
provisions of sections 48, 49, 50, 51, and 52 at all militate against the universality of that jurisdiction.
Those provisions simply arrange for the convenient and effective transaction of business in the courts
and do not relate to their power, authority, or jurisdiction over the subject matter of the action. While
it is provided in these sections that a particular court shall hold its sessions in any other province
(except under certain specified conditions), the assertions is nevertheless true that the jurisdiction of a
particular court is in no wise and in no sense limited; and it is nowhere suggested, much less
provided, that a Court of First Instance of one province, regularly sitting in said province, may not
under certain conditions take cognizance of an action arising in another province or of an action
relating to real estate located outside of the boundaries of the province to which it may at the time be
assigned.
Certain statutes confer jurisdiction, power, or authority. Other provide for the procedure by which
that power or authority is projected into judgment. The one class deals with the powers of the Court
in the real and substantive sense; the other with the procedure by which such powers are put into
action. The one is the thing itself; the other is the vehicle by which the thing is transferred from the
court to the parties. The whole purpose and object of procedure is to make the powers of the court
fully and completely available for justice. The most perfect procedure that can be devised is that
which gives opportunity for the most complete and perfect exercise of the powers of the court within
the limitations set by natural justice. It is that one which, in other words, gives the most perfect
opportunity for the powers of the courts to transmute themselves into concrete acts of justice between
the parties before it. The purpose of such a procedure is not to restrict the jurisdiction of the court
over the subject matter, but to give it effective facility in righteous action. It may be said in passing
that the most salient objection which can be urged against procedure to-day is that it so restricts the
exercise of the court's powers by technicalities that the part of its authority effective for justice
between the parties is many times an inconsiderable portion of the whole. The purpose of procedure
is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival claims of
contending parties. It was created not to hinder and delay but to facilitate and promote the
administration of justice. It does not constitute the thing itself which courts are always striving to
secure to litigants. It is designed as the means best adopted to obtain that thing. In other words, it is a
means to an end. It is the means by which the powers of the court are made effective in just
judgments. When it loses the character of the one and takes on that of the other the administration of
justice becomes incomplete and unsatisfactory and lays itself open to grave criticism.
The proper result of a system of procedure is to insure a fair and convenient hearing to the parties
with complete justice between them as a result. While a fair hearing is as essential as the substantive
power of the court to administer justice in the premises, and while the one is the natural result o the
other, it is different in its nature and relates to a different thing. The power or authority of the court
over the subject matter existed and was fixed before procedure in a given cause began. Procedure
does not alter or change that power or authority; it simply directs the manner in which it shall be fully
and justly exercised. To be sure, in certain cases, if that power is not exercised in conformity with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. This does not mean that it loses jurisdiction of the subject matter. It means simply
that he may thereby lose jurisdiction of the person or that the judgment may thereby be rendered
defective for lack of something essential to sustain it. There is, of course, an important distinction
between person and subject matter are both conferred by law. As to the subject matter, nothing can
change the jurisdiction of the court over diminish it or dictate when it shall attach or when it shall be
removed. That is a matter of legislative enactment which none but the legislature may change. On the
other hand, the jurisdiction of the court over the person is, in some instances, made to defend on the
consent or objection, on the acts or omissions of the parties or any of them. Jurisdiction over the
person, however, may be conferred by consent, expressly or impliedly given, or it may, by an
objection, be prevented from attaching or removed after it has attached.
In the light of these observations, we proceed to a consideration of those provisions of the law which
the plaintiff claims are decisive of his contention that a Court of First Instance of one province has no
jurisdiction of the subject matter of an action by a railroad company to condemn lands located in
another province. The plaintiff relies for the success of its cause upon section 377 of the Code of
Civil Procedure and upon the special laws relating to the condemnation of lands railroad
corporations. We take up first the section of the Code of Civil Procedure referred to.
The fact that such a provision appears in the procedural law at once raises a strong presumption that it
has nothing to do with the jurisdiction of the court over the subject matter. It becomes merely a
matter of method, of convenience to the parties litigant. If their interests are best subserved by
bringing in the Court Instance of the city of Manila an action affecting lands in the Province of Ilocos
Norte, there is no controlling reason why such a course should not be followed. The matter is, under
the law, entirely within the control of either party. The plaintiff's interests select the venue. If such
selection is not in accordance with section 377, the defendant may make timely objection and, as a
result, the venue is changed to meet the requirements of the law. It is true that this court has more
than once held than an agreement to submit a controversy to a court which, under the procedural law,
has not been selected as the appropriate court, generally speaking, to hear such controversy, can not
be enforced. This means simply that either party to such a contract may ignore it at pleasure. The law
will not compel the fulfillment of an agreement which deprives one of the parties to it of the right to
present his cause to that court which the law designates as the most appropriate. But the principle
asserted in the cases which hold thus is no authority for the proposition that two persons having a
controversy which they desire to have decided by a competent tribunal may not, by appropriate
procedure, submit it t any court having jurisdiction in the premises. In the one case the relation is
contractual to be enforced over the objection of one of the contracting parties. In the other relation is
not contractual because not between the parties; but, rather, between the parties and the court. In the
one case it is a contract to be enforced; in the other, a condition to be met.
This being so, we say again, even though it be repetition, that after jurisdiction over real property in
the Islands has been conferred so generally and fully by Act No. 136, it is not to be presumed or
construed that the legislature intended to modify or restrict that jurisdiction when it came to frame a
Code of Civil Procedure the object of which is to make that jurisdiction effective. Such modification
or restriction should be held only by virtue of the clearest and most express provisions.
The wording of that section should be carefully examined. It reads as follows:
SEC. 377. Venue of actions. — Actions to confirm title to real estate, or to secure
a partition of real estate, or to cancel clouds, or remove doubts from the title to
real estate, or to obtain possession of real estate, or to recover damages for
injuries to real estate, or to establish any interest, right, or title in or to real estate,
or actions for the condemnation of real estate for public use, shall be brought in
the province were the lands, or some part thereof, is situated; actions against
executors, administrators, and guardians touching the performance of their
official duties, and actions for account and settlement by them, and actions for the
distribution of the estates of deceased persons among the heirs and distributes,
and actions for the payment of legacies, shall be brought in the province in which
the will was admitted to probate, or letters of administration were granted, or the
guardian was appointed. And all actions not herein otherwise provided for may
be brought in any province where the defendant or any necessary party defendant
may reside or be found, or in any province where the plaintiff, except in cases
were other special provision is made in this Code. In case neither the plaintiff nor
the defendant resides within the Philippine Islands and the action is brought to
seize or obtain title to property of the defendant within the Philippine Islands and
the action is brought to seize or obtain title to property of the defendant within the
Philippine Islands, the action shall be brought in the province where the property
which the plaintiff seeks to seize or to obtain title to is situated or is found:
Provided, that in an action for the foreclosure of a mortgage upon real estate,
when the service upon the defendant is not personal, but is by publication, in
accordance with law, the action must be brought in the province where the land
lies. And in all cases process may issue from the court in which an action or
special proceeding is pending, to be enforced in any province to bring in
defendants and to enforce all orders and decrees of the court. The failure of a
defendant to object t the venue of the action at the time of entering his appearance
in the action shall be deemed a waiver on his part of all objection to the place or
tribunal in which the action is brought, except in the actions referred to in the first
sixteen lines of this section relating to real estate, and actions against executors,
administrators, and guardians, and for the distribution of estates and payment of
legacies.
Leaving out of discussion for the moment actions and proceedings affecting estates of deceased
persons, they resting upon a different footing being governed by special laws, it is to be observed that
the section contains no express inhibition against the court. It provides simply that certain actions
affecting real estate "shall be brought in the province where the land, or some part thereof, is
situated." The prohibition here is clearly directed against the one who begins the action and lays the
venue. The court, before the action is commenced, has nothing to do with either. The plaintiff does
both. Only when that is done does the section begin to operate effectively so far as the court is
concerned. The prohibition is nor a limitation on the power of the court but on the rights of the
plaintiff. It is not to take something from the court but to grant something to the defendant. Its
wording clearly deprives the court of nothing which it had, but gives the defendant, as against the
plaintiff, certain rights which he did not have. It establishes a relation not between the court and the
subject ,after, but between the plaintiff and the defendant. It relates not to jurisdiction but to trial. It
touches convenience, not substance. It simply gives to defendant the unqualified right, if he desires it,
to have the trial take place where his land lies and where, probably, all of his witnesses live. Its object
is to secure to him a convenient trial. If it had been the intention of the law-makers by section 377 to
put a limitation to the jurisdiction of the court, how easy it would have been to say so squarely. "No
Court of First Instance shall have or take jurisdiction of an action touching title to or interest in real
property lying wholly in a province other than that in which such court is authorized to hold
sessions," or a similar provision, would have been sufficient. This would have been clearly a
limitation on the court rather than the party. There would have been no room for doubt. The
legislature, however, did not do so. It, rather, chose to use language which imposes a limitation on the
rights of the plaintiff.
In saying this we do not desire to force construction.1awphil.net Courts should give to language its
plain meaning, leaving the legislature to take care of the consequences. The Philippine Commission
having, in fullest phrase, given the Courts of First Instance unrestricted jurisdiction over real estate in
the Islands by Act No. 136, we are of the opinion that the jurisdiction ought not to be held to be
withdrawn except by virtue of an Act equally express, or so clearly inconsistent as to amount to the
same thing. The fact that section 377 is not such Act, that it is found in code of Procedure rather than
in the substantive law, that it deals with the relative procedural rights of parties rather than the power
of the court, that it relates to the place rather than to the thing, that it composes the whole of a chapter
headed simply "Venue," lead us to hold that the Court of First Instance of Tarlac had full jurisdiction
of the subject matter of this action at the time when it was dismissed.
That it had jurisdiction of the persons of all the parties is indisputable. That jurisdiction was obtained
not only by the usual course of practice — that is, by the process of the court — but also by consent
expressly given, is apparent. The plaintiff submitted itself to the jurisdiction by beginning the action.
(Ayers vs. Watson, 113 U.S., 594; Fisher vs. Shropshire, 147 U.S., 133.) The defendants are now in
this court asking that the action be not dismissed but continued. They are not only nor objecting to the
jurisdiction of the court but, rather, are here on this appeal for the purpose of maintaining that very
jurisdiction over them.
Nor is the plaintiff in any position to asked for favors. It is clearly guilty of gross negligence in the
allegations of its complaint, if the land does not lie in Tarlac as it now asserts. It alleged in its
complaint:
4. That, according to the information secured after a minute investigation in the
offices of the land registry and of the land-tax record of the municipalities within
whose jurisdiction lie all the parcels composing the tract of land in question, the
owners and occupants of the same, with their names as they appear on the plan,
are as follows.
At the time it commenced the action it was possessed of every fact which a complete knowledge of
the location of the lands sought to be condemned required. It had the map of its entire line from
Paniqui to Tayug, showing the provinces and the various municipalities through which it runs. Not
only that: Before beginning its action it had to know the name of every necessary defendant, the land
he owned, and the extent of that portion to be condemned. The investigation required to ascertain
these facts would of necessity force into plaintiff's mind the knowledge required to bring the action in
the proper court. That the plaintiff at the time it commenced this action did not know in what
province its proposed stations and terminals were is difficult to believe. That it did not know in what
province the land lay which it was about to make the subject of so important a proceeding is still
more difficult to believe. In spite of all this, however, it deliberately laid the venue in a province
where no part of the land lay, took possession of the land in controversy, constructed its line,
switches, and stations, and after nearly two years of litigation, accompanied with great trouble to the
court and trouble and expense to the parties, calmly asks the dismissal of the case for the reason that
it did not know where its own railroad was located. Under such circumstances a dismissal of the
action over the objection of the defendants ought not to be permitted expect upon absolute necessity
and then only on payment of the costs and expenses of the defendants and of the actin. (Ayers vs.
Watson and Fisher vs. Shropshire, supra.)
There is no equitable ground, then, upon which the plaintiff may claim that it has not yielded itself to
the jurisdiction of the court. Nor, as we have seen, is there a legal ground. As we have already said,
the plaintiff, having brought the action, of necessity submitted itself to the jurisdiction of the court. It
took advantage of the situation it itself created to take possession of the lands described in the
complaint, construct its lines, switches, stations, yards and terminals, and to carry the cause through
two years of expensive litigation. It now attempts to make all this go for naught alleging its own
negligence as a reason for such attempt. (Ayers vs. Watson and Fisher vs. Shropshire, supra.)
While the latter part of section 377 provides that "the failure of a defendant to object to the venue of
the action at the time of entering his appearance in the action shall be deemed a waiver on his part of
all objection to the place or tribunal in which the action is brought," except, a month other things, in
actions affecting real estate, we apprehend that it was not intended that a defendant can not waive
such objection in such excepted cases. Nor we do believe that such provision is controlling in this
case. In the first place, the application is restricted to "the time of entering his appearance in the
action." It might well have been in the mind of the lawmakers that, at the time of entering his
appearance in the action, the defendant would not ordinarily be fully informed of all the facts of the
case, at least not sufficiently to warrant his being held to a waiver of important rights; whereas, later
in the cause, as when he files his answer or goes to trial, being fully informed, he might justly be held
to have waived his right to make such objection. for this reason it might well be that the Legislature
purposely refrained from extending the time for his protection beyond the "time of entering his
appearance in the action." Moreover, there is, in said clause, no prohibition against an express waiver
of his rights by the defendant. The general rule of law is that a person may renounce any right which
the law gives unless such renunciation is expressly prohibited or the right conferred is of such a
nature that its renunciation would be against public policy. This right of renunciation is so thoroughly
established, and was at the time of the enactment of the Code of Civil Procedure, that its exercise by a
defendant in relation to the venue of the action will not be held to have been abridged by section 377
without very clear provision therein to that effect. There is no part of that section clear enough to
warrant such a holding. Even though the terms of said section were much clearer than they are in this
respect, we should still hold, if they were much short of express, that the right of renunciation is not
abridged, founding ourselves not only upon the principles already laid down but also upon the
proposition of general law embodied in section 294 of the code of Civil Procedure which provides
that:
When a statute or instrument is equally susceptible of two interpretations, one in
favor of natural right and the other against it, the former is to be adopted.itc-alf
Moreover, it should be noted that this prohibition, if it be such, against waiver refers exclusively to
the defendant. The plaintiff is given no rights respecting it. Yet it is the plaintiff who is here calling
for the application of the provision even against the declared will of the person who is expressly
named as the sole beneficiary. We will not by interpretation extend this provision so as to contravene
the principles of natural rights. We will not construed it so as to included in its terms nor named as its
beneficiary. But even if the plaintiff were entitled to invoke the aid of the provision he is from so
doing. (Wanzer vs. Howland, 10 Wis., 7; Babcock vs. Farewell, 146 Ill. App., 307; White vs. Conn.
Mutual Life Ins. Co., 4 Dill (U.S.), 183; Shuttle vs. Thompson, 15 Wall., 159; Beecher vs. Mill Co.,
45 Mich., 103; Tomb vs. Rochester R. R. Co., 18 Barb., 585; Ferguson vs. Landram, 5 Bush (Ky.),
230; State vs. Mitchell, 31 Ohio State, 592; Counterman vs. Dublin, 38 Ohio State, 515; McCarthy vs.
Lavasche, 89 Ill., 270; Ricketts vs. Spraker, 77 Ind., 371; Strosser vs. City of Fort Wayne, 100 Ind.,
443). Section 333 of the Code of Civil Procedure reads:
Conclusive presumptions. — The following presumptions or deductions, which
the law expressly directs to be made from particular facts, are deemed conclusive:
1. Whenever a party has, by his own declaration, act, or omission, intentionally
and deliberately led another to believe a particular thing true, and to act upon
such belief, he can not, in any litigation arising out of such declaration, act, or
omission, be permitted to falsity it.
(Rodriguez vs. Martinez, 5 Phil. Rep., 67; 69; Municipality of Oas vs. Roa, 7 Phil. Rep., 20, 22;
Trinidad vs. Ricafort et al., 7 Phil. Rep., 449, 453; Macke et al vs. Camps, 7 Phil. Rep., 553, 555.)
The fact is, there are very few rights which may not be renounced, expressly or impliedly.
(Christenson vs. Charleton, 34 Atl., 226, 227, 69 Vt., 91; Donahue vs. Windsor County Ins. Co., 56
Vt., 91; Donahaue vs. Windsor Ins. co., 33 Atl., 902, 904, 66 Conn., 21, 40; Fitzpatrick vs. Hartford
Life & Annuity Ins. Co., 56 Conn., 116, 134, 17 Atl., 411, 7 Am. St. Rep., 288; Lewis vs. Phoenix
Mut. Life Ins. Co., 44 Conn., 72, 91; State vs. Hartley, 52 Atl., 615, 617, 75 Conn., 104; First Nat.
Bank vs. Hartford L. & A. Ins. Co., 45 Conn., 22, 44; Johnson vs. Schar, 70 N.W., 838, 839, 9 S. D.,
536; Corey vs. Bolton, 63 N.Y., Supp., 915, 917, 31 Misc. Rep., 138; Mason's Supply Co. vs. Jones,
68 N. Y. Supp., 806, 809, 58 App. Div., 231; Monroe Waterworks Co. vs. City of Monroe, 85 N.W.,
685, 688, 100 Wis., 11; Fraser vs. Aetna Life Ins. Co., 90 N.W., 476, 481, 114 Wis., 510; Cedar
Rapids Water Co. vs. Cedat Rapids, 90 N.W., 746, 749, 117 Iowa, 250; Kennedy vs. Roberts, 75
N.W., 363, 366, 105 Iowa, 521; Shaw vs. Spencer, 100 Mass., 382, 395, 97 Am. Dec., 107, 1 Am.
Rep., 115; West vs. Platt, 127 Mass., 367, 367, 372; Fulkerson vs. Lynn, 64 Mo. App., 649, 653;
Michigan Savings & Loan Ass'n. vs. Missouri, K & T. Trust Co., 73 Mo. App., 161, 165; Perin vs.
Parker, 18 N. E., 747, 748, 126 Ill., 201, 2 L.R.A., 336, 9 Am. St. Rep., 571; Keller vs. Robinson &
Co., 38 N. E., 1072, 1075, 152 Ull. 458; Star Brewery Co. vs. Primas, 45 N.E., 145, 148, 163 Ill.,
652; United Firemen's Ins. Co. vs. Thomas (U.S.), 82 Fed., 406, 408, 27 C.C. A., 42, 47 L.R.A., 450;
Rice vs. Fidelity & Deposit Co. (U.S.), 103 Fed., 427, 43 C.C.A., 270; Sidway vs. Missouri Land &
Live Stock Co. (U.S.), 116 Fed., 381, 395; able vs. United States Life Ins. Co. (U.S.), 111 Fed., 19,
31, 49 C.C.A., 216L Peninsular Land Transp., etc., Co. vs. Franklin Ins. Co., 35 W. Va., 666, 676, 14
S.E., 237; Dey vs. Martin, 78 Va., 1, 7; Liverpool & L.& G. Ins. Co. vs. T.M. Richardson Lumber
Co., 69 Pac., 938, 951, 11 Okl., 585; Livesey vs. Omaha Hotel, 5 Neb., 50, 69; Cutler vs. Roberts, 7
Nebr., 4, 14, 29 Am. Rep., 371; Warren vs. Crane, 50 Mich., 300, 301, 15 N.W., 465; Portland &
R.R. Co. vs. Spillman, 23 Oreg., 587, 592, 32 Pac., 688, 689; First Nat. Bank vs. Maxwell, 55 Pac.,
980, 982, 123 Cal., 360, 69 Am. St. Rep., 64; Robinson vs. Pennsylvania Fire Ins. Co., 38 Atl., 320,
322, 90 Me., 385; Reed vs. Union Cent. Life Ins. Co., 61 Pac., 21, 21 Utah, 295; Dale vs. Continental
Ins. Co., 31 S.W., 266, 269, 95 Tenn., 38; Supreme Lodge K.P. vs. Quinn, 29 South., 826, 829, 95
Tenn., 38; Supreme Lodge K.P. vs. Quinn, 29 South., 826, 827, 78 Miss., 525; Bucklen vs. Johnson,
49 N.E., 612, 617, 19 Ind. App., 406.)
We have delayed until this moment the citation of authorities relative to the proposition that venue is
not jurisdictional as to subject matter and that defendant's rights in respect thereto are such that they
may be waived, expressly or by implication, for the reason that we desired that the principles which
rule the case should first be discussed and presented in the abstract form. In the case of First National
Bank of Charlotte vs. Morgan (132 U.S., 141), it was held that the exemption of national banks from
suits in State courts in counties other than the county or city in which the association was located was
a personal privilege which could be waived was located was a personal privilege which could be
waived by appearing in such brought in another county, but in a court of the same dignity, and
making a defense without claiming the immunity granted by Congress. the court said:
This exemption of national banking associations from suits in State courts,
established elsewhere than in the county or city in which such associations were
located, was, we do not doubt, prescribed for the convenience of those
institutions, and prevent interruption in their business that might result from their
books being sent to distant counties in obedience to process from State courts.
(First Nat. Bank of Bethel vs. National Pahquioque Bank, 14 Wall., 383, 394;
Croker vs. Marine Nat. Bank, 101 Mass., 240.) But, without indulging in
conjecture as to the object of the exemption in question, it is sufficient that it was
granted by Congress, and, if it had been claimed by the defendant when
appearing in the superior court of Cleveland County, must have been recognized.
The defendant did not, however, choose to claim immunity from suit in that
court. It made defense upon the merits, and, having been unsuccessful,
prosecuted a writ of error to the supreme court of the State, and in the latter
tribunal, for the first time, claimed the immunity granted to it by Congress. This
was too late. Considering the object as well as the words of the statute
authorizing suit against a national banking association to be brought in the proper
State court of the county where it is located, we are of opinion that its exemption
from suits in other courts of the same State was a personal privilege that it would
waive, and, which, in this case, the defendant did waive, and, which, in this case,
the defendant did waive, by appearing and making defense without claiming the
immunity granted by Congress. No reason can be suggested why one court of a
State, rather than another, both being of the same dignity, should take cognizance
of a suit against a national bank, except the convenience of the bank. And this
consideration supports the view that the exemption of a national bank from suit in
any State court except one of the county or city in which it is located is a personal
privilege, which it could claim or not, as it deemed necessary.
In the case of Ex parte Schollenberger (96 U.S., 369), the court said:
The Act of Congress prescribing the place where a person may be sued is not one
affecting the general jurisdiction of the courts. It is rather in the nature of a
personal exemption in favor of a defendant, and it is one which he may waive. If
the citizenship of the parties is sufficient, a defendant may consent to be sued
anywhere he pleases, and certainly jurisdiction will not be ousted because he has
consented. Here, the defendant companies have provided that they can be found
in a district other than that in which they reside, if a particular mode of
 proceeding is adopted, and they have been so found. In our opinion, therefore, the
circuit court has jurisdiction of the causes, and should proceed to hear and decide
them.
In the case of St. Louis and San Francisco Railway Co. vs. McBride (141 U.S., 127), the court used
the following language:
The first part of section 1 of the Act of 1887, as amended in 1888, gives,
generally, to the circuit courts of the United States jurisdiction of controversies
between citizens of different States where the matter in dispute exceeds the sum
of two thousand dollars exclusive of interest and costs. Such a controversy was
presented in this complaint. It was therefore a controversy of which the circuit
courts of the United States have jurisdiction. Assume that it is true as defendant
alleges, that this is not a case in which jurisdiction is founded only on the fact that
the controversy is between citizens of different States, but that it comes within
the scope of that other clause, which provides that "no civil sit shall be brought
before either of said courts, against any person, by any original process or
proceeding, in any other district than that whereof he is inhabitant," still the right
to insist upon suit only in the one district is a personal privilege which he may
waive, and he does waive it by pleading to the merits. In Ex parte Schollenberger
(96 U.S., 369, 378), Chief Justice Waite said: "The Act of Congress prescribing
the place where a person may be sued is not one affecting the general jurisdiction
of the courts. It is rather in the nature of a personal exemption in favor of a
defendant, and it is one which he may waive." The Judiciary Act of 1789 (sec.
11, Stat., 79), besides giving general jurisdiction to circuit courts over suits
between citizens of different States, further provided, generally, that no civil suit
should be brought before either of said courts, against an inhabitant of the United
States, by any original process, in any other district than that of which he was an
inhabitant, or in which he should be found. In the case of Toland vs. Sprague (12
Pet., 300, 330), it appeared that the defendant was not an inhabitant of the State in
which the suit was brought, nor found therein. In that case the court observed: "It
appears that the party appeared and pleaded to issue. Now, if the case were one of
the want of jurisdiction in the court, it would not, according to well-established
principles, be competent for the parties by any acts of theirs to give it. But that is
not the case. The court had jurisdiction over the parties and the matter in dispute;
the objection was that the party defendant, not being an inhabitant of
Pennsylvania, nor found therein, personal privilege or exemption, which it was
competent for the party to waive. The cases of Pollard vs. Dwight (4 Cranch.,
421) and Barry vs. Foyles (1 Pt., 311) are decisive to show that, after appearance
and plea, the case stands as if the suit were brought that exemption from liability
to process and that in case of foreign attachment, too, is a personal privilege,
which may be waived, and that appearing and pleading will produce that waiver."
In (14 Wal., 282), the jurisdiction of the circuit court over a controversy between
citizens of different States was sustained in a case removed from the State court,
although it was conceded that the suit could not have been commenced in the first
instance in the circuit court. See also Claflin vs. Commonwealth Ins. Co. (110
U.S., 81 [28:76].) Without multiplying authorities on this question, it is obvious
that the party who in the first instance appears and pleads to the merits waives
any right to challenge thereafter the jurisdiction of the court on the ground that
the suit has been brought in the wrong district. (Charlotte Nat. Bank vs. Morgan,
132 U.S., 141; Fitzgerald E. M. Const. Co. vs. Fitzergerald, 137 U.S., 98.)
In the case of the Interior Construction and Improvement Co. vs. Gibney (160 U.S., 217), the court
held as follows:
The circuit courts of the United States are thus vested with general jurisdiction of
civil actions, involving the requisite pecuniary value, between citizens of
different States. Diversity of citizenship is a condition of jurisdiction, and, when
that does not appear upon the record, the court, of its own motion, will order the
action to be dismissed. But The provision as to the particular district in which the
action shall be brought does not touch the general jurisdiction of the court over
such a cause between such parties; but affects only the proceedings taken to bring
the defendant within such jurisdiction, and is matter of personal privilege, which
the defendant may insist upon, or may waive, at his election; and the defendant's
right to object that an action within the general jurisdiction of the court is brought
in the wrong district, is waived by entering a general appearance, without taking
the objection. (Gracie vs. Palmer, 8 Wheat, 699; Toland vs. Sprague, 12 Pet., 300,
330; Ex parte Schollenberger, 96 U.S., 369, 378; St. Louis & S. F. R. Co. vs.
McBride, 141 U.S., 127; Southern Pacific Co. vs. Dento, 146 U.S., 202, 206;
Texas & Pacific Railway Co. vs. Saunders, 151 U.S., 105; Central Trust Co. vs.
McGeorge, 151 U.S., 129; Southern Express Co. vs. Todd, 12 U.S. app., 351.)
In the case of Central Trust Co. vs. McGeorge (151 U.S., 129), the court disposed of the case as
follows:
The court below, in holding that it did not have jurisdiction of the cause, and in
dismissing the bill of complaint for the reason, acted in view of that clause of the
Act of March 3, 1887, as amended in August, 1888, which provides that "no suit
shall be brought in the circuit courts of the United States against any person, by
any original process or proceeding, in any other district than that whereof he is an
inhabitant;" and, undoubtedly, if the defendant company, which was sued in
another district than that in which it had its domicile, had, by a proper plea or
motion, sought to avail itself of the statutory exemption, the action of the court
would have been right.
But the defendant company did not choose to plead that provision of the statute,
but entered a general appearance, and joined with the complainant in its prayer
for the appointment of a receiver, and thus was brought within the ruling of this
court, so frequently made, that the exemption from being such out of the district
of its domicile is a personal privilege which may be waive and which is waived
by pleading to the merits.
(Improvement Co. vs. Gibney, 16 Sup. Ct., 272, 160 U.S., 217; 40 L. ed., 401; Walker vs. Windsor
Nat. Bank, 5 C. C. A., 421, 56 Fed., 76, 5 U.S. App., 423; Von Auw. vs. Chicago Toy & Fancy
Goods Co., 69 Fed., 448 McBride vs. Grand de Tour Plow Co., 40 Fed., 162; Black vs. Thorne, Fed.
Cas. No. 1, 495 (10 Blatchf., 66, 5 Fish. Pat. Cas., 550); Norris vs. Atlas Steamship Co., 37 Fed., 279;
Hoover & Allen Co. vs. Columbia Straw Paper Co., 68 Fed., 945; Blackburn vs. Railroad Co., Fed.,
Fed., Cas. No. 1, 467 (2 Flip., 525); Vermont Farm Mach. Co. vs. Gibson, 50 Fed., 423.)
In the case of Security Loan and Trust Co. vs. Kauffman (108 Cal., 214), the court said:
The constitution, Article VI, section 5, declares that, "All actions for the
enforcement of liens" shall be commenced in the county in which the real estate
or some portion thereof is situated; and at the time this action was "commenced"
the property was situate within the boundaries of San Diego. The constitution
does not, however, require property is situated, and the statutory provision in
section 392 of the Code of Civil Procedure, that actions 'for the foreclosure of
liens and mortgages on real property' must be tried in the county in which the
subject of the action, or some part thereof, is situated, "subject to the power of the
court to change the place of trial," shows that "the place of trial" is not an element
going to the jurisdiction of the court, but is a matter of legislative regulation. The
provision for the transfer of certain actions to the superior court of the county of
Riverside, which is contained in section 12 of the act providing for the
organization of that county, shows the extent of this regulation which the
legislature deemed necessary, and implies that only the actions there designated
were to be transferred for trial.
In the case of Chouteau vs. Allen (70 Mo., 290), the court held as follows:
The statutory provision in respect to personal actions is more emphatic, requiring
that "suits instituted by summons, shall, except as otherwise provided by law, be
brought: First, when the defendant is a resident of the State, either in the county
within which the defendant resides, or in the county within which the plaintiff
resides, and the defendant may be found," and yet it was held in reference to this
statute in the case of Hembree vs. Campbell (8 Mo., 572), that though the suit
was brought in the county in which the plaintiff resided, and service had upon the
defendant in the county of his residence, unless a plea in abatement to the
jurisdiction of the court over the person of the defendant, was interposed in the
first instance, the objection on the score of lack of jurisdiction could not
subsequently be successfully raised. And this, upon the generally recognized
ground that the court had jurisdiction over the subject matter of the suit, and that
the defendant's plea to the merits acknowledged jurisdiction over his person, and
precluded objection on account of absence of regularity in the instituting of the
action. So also, in Ulrici vs. Papin (11 Mo.., 42), where the then existing statute
required "suits in equity concerning real estate, or whereby the same may be
affected, shall be brought in the county within which such real estate or greater
part thereof is situate," and by demurrer to the bill it was objected that the suit
was not brought in the proper county in conformity with the statutory provision,
Judge Scott remarked: "That it does not clearly appear where the greater part of
the lands lie. This objection, if tenable, should have been raised by a plea to the
jurisdiction." And the same learned judge remarks, in Hembree vs. Campbell,
supra, "No principle is better established than that a plea in bar is a waiver of all
dilatory matter of defense. That the matter of abatement was apparent upon the
writ can make no difference. Such matters are and should be pleaded." And pleas
to the jurisdiction are as necessary in local as in transitory actions. (1 Tidd. Prac.,
630.)
It is not meant to convey the idea that the mere failure to plead to the jurisdiction
of the court would have the effect to confer jurisdiction where none existed
before; for it is well settled that even consent of parties can not confer
jurisdiction. (Stone vs. Corbett, 20 Mo., 350.) But all circuit courts have a general
jurisdiction over the foreclosure of mortgages.
In the case of Armendiaz vs. Stillman (54 Texas, 623), the court disposed of the question involved in
the following words:
In our opinion, however, these common law rules respecting local and transitory
actions have no more to do in determining with us where a suit can be brought
and maintained, than the like rules in respect to the form and names of actions;
but this is solely regulated by and dependent upon the proper construction of the
constitution and statutes of the State. In the first, it is emphatically declared in the
bill of rights as a fundamental principle of government, "All courts shall be open,
and every person for an injury done him in his lands, goods, person or reputation,
shall have remedy by due course of law." Now a party may not have an action in
rem for or concerning land in foreign jurisdiction, because redress can not be
given or had by such proceeding in due course of law; but personal damages may
be given for such injury and enforced by due process of law within the State.
"And it would seem if the State failed to give to one of its citizens a remedy
against others for injuries of this kind, it would fail in the pledge made in the
constitution as plainly as if the injury had been in a foreign jurisdiction to one's
goods or person."
There is, as Judge Marshall himself says, no difference in principle in giving
redress for injuries to land in the jurisdiction where the defendant is found, which
may not be equally applicable in other cases. He says, speaking of the fiction
upon which transitory actions are sustained, where the cause of action occurred
out of the jurisdiction where they are brought: "They have" (i. e., the courts),
"without legislative aid, applied this fiction to all personal torts, wherever the
wrong may have been committed, and to all contracts wherever executed. To this
general rule contracts respecting lands from no exception. It is admitted that on a
contract respecting lands, an action is sustainable wherever the defendant may be
found. Yet in such case every difficulty may occur that present itself in an action
of trespass. An investigation of title may become necessary, a question of
boundary may arise, and a survey may be essential to the full merits of the case.
Yet these difficulties have not prevailed against the jurisdiction of the court. They
are countervailed by the opposing consideration, that if the action be disallowed,
the injured party may have a clear right without a remedy in a case where a
person who has done the wrong, and who ought to make the compensation, is
within the power of the court. That this consideration loses its influence where
the action pursues anything not in the reach of the court is inevitably necessary,
but for the loss of its influence, where the remedy is against the person, and is
within the power of the court, I have not yet discovered a reason, other than a
technical one, which can satisfy my judgment.'
In the case of De La Vega vs. Keague (64 Texas, 205), the court said:
Our statutes in force at the time the reconvention was filed provided that suits for
the recovery of land should be brought in the county where the land or a part
thereof is situated. This is one of the exceptions to the general rule requiring suits
to be brought in the county of the defendant's residence. This requirement is not a
matter that affects the jurisdiction of the district courts over the subject matter of
controversies about the title or possession of lands. Every district court in the
State has cognizance of such suits; the requirement as to the county in which the
suit may be brought is a mere personal privilege granted to the parties, which
may be waived like any other privilege of this character. (Ryan vs. Jackson, 11
Tex., 391; Morris vs. Runnells, 12 Tex., 176.) A judgment rendered by the
district court of Galveston County, when the parties had submitted to the
jurisdiction, would settle the title to land in McLennan County as effectually as if
rendered in its own district curt. Jurisdiction of causes may be obtained by
defendants in counties other than those in which the statute requires them to be
brought, in other ways than by express consent or by failure to claim the personal
privilege accorded by law. A suit upon a monied demand, brought in the county
of a defendant's residence by a resident of another county, may be met with a
counter demand against the plaintiff, and a recovery may be had upon the counter
demand, though if suit had been originally commenced upon it, the county of the
plaintiff's residence would have had exclusive jurisdiction. And so with other
cases that might be supposed. A plaintiff calling a defendant into court for the
purpose of obtaining relief against him invites him to set up all defenses which
may defeat the cause of action sued on, or any other appropriate and germane to
the subject matter of the suit, which should be settled between the parties before a
proper adjudication of the merits of the cause can be obtained. He grants him the
privilege of setting up all such counterclaims and cross actions as he holds
against the plaintiff which may legally be pleaded in such a suit.
This is particularly the case in our State, where a multiplicity of suit is abhorred,
and a leading object is to settle all disputes between the parties pertinent to the
cause of action in the same suit. The question of the original right to bring the
cross action in the county where the suit is pending can not be raised; otherwise
this design would, in a large number of cases, be defeated, and the various
matters which could well be settled in the cause might have to seek a number of
different counties, and be asserted in a number of different suits, before the
controversy between the parties could be settled. The plaintiff must be considered
as waiving any privilege to plead to the jurisdiction in such cross actions, and as
consenting that the defendant may assert in the suit any demands which he could
plead were it commenced in the county where such demands were properly
usable. The question then is, La Vega have set up the matters pleaded in his
answer in reconvention had the land sought to be partitioned been situated in
Galveston County? This question must be determined by the solution of another,
viz, can a defendant to a partition suit who claims through the title under which
the partition is sought set up a superior title to the whole land? "It is doubtless
true that, in a partition suit, a court of equity will not entertain any controversy as
to the legal title, whether it arises between the part owners as to their respective
interests, or by reason of a claim set up by one or more of them to the entire land
by title superior to the one under which the partition is asked to be decreed. In our
State, where there is no distinction between law and equity in the determination
of causes, an action to settle disputed titles, whether legal or equitable, may be
combined with one to partition the land between the plaintiff and defendant.
Hence there can be no objection to determining any questions as to title between
the coowners in a partition suit in our State, and the strict rules of chancery do not
prevail.
In the case of Kipp vs. Cook (46 Minn., 535), the court made use of the following language:
1. The appellant contends that the district court for the county of Sibley, and of
the eighth judicial district, was without jurisdiction, and could not properly
determine the rights or interests of either litigant to lands located in Sherburne
County, which is in the seventh judicial district; but this question was passed
upon many years since, in the case of Gill vs. Bradley (21 Minn., 15), wherein it
was held that, although the proper place for the trial of an action to recover real
property, or for the determination, in any form, of a right or interest therein, was,
by virtue of an existing statute — now found as Gen. St. 1878, c. 66, par. 47 — in
the county wherein the lands were situated, the district court of the county
designated in the complaint had jurisdiction over the subject matter, and had
power to before the time for answering expired, in accordance with the express
provisions of another section — now section 51 — of the same chapter, and the
place of trial had actually been changed by order of the court or by consent of
parties.
In the case of the west Point Iron Co. vs. Reymert (45 N.Y., 703), the court said:
The action was tried in the county of Dutches, and by the court without a jury,
without objection on the part of the defendants. If the trial should have been in
Putnam, and by a jury, it was for the defendants to assert their rights at the trial;
and by not them claiming them, they waived them, and must be regarded as
having assented to the place and mode of trial.
We transcribe the following from decisions of the supreme court of Spain:
Considering, further, that Pedrosa, instead of immediately objecting to the
jurisdiction of the court and asking for a change of venue, sued for recovery of
title, thereby submitting himself to the jurisdiction of the court of first instance,
which reserved its decision thereon until plaintiff had presented the petition in
due form. (Judgment of May 30, 1860, 5 Civ. Jur., 465.)
Considering that although other proceedings were had in the first court (Salvador
de Granada) and in the courts of first instance of Sagrario and Guerra of said city
subsequent to the death of the count, the truth of the matter is that his daughter,
the countess, the only party now claiming relief, not only had the proceedings
taken in the first of said courts dismissed but asked the court of first instance of
Castilla de la Nueva to accept, and the court accepted, her express submission to
its jurisdiction:
 Considering that far from objecting, as she might have objected, to the
jurisdiction of the court, the countess acknowledged such jurisdiction as did the
other coheirs when thru asked the court to proceed with the testamentary
proceedings, thus creating a jurisdictional situation perfectly in harmony with the
respective claims of the parties and so binding upon them that they are now
absolutely estopped from denying its importance or legal force. (Judgment of
May 30, 1860, 5 Civ. Jur., 465.)
He who by his own acts submits himself to the jurisdiction of a court shall not
thereafter be permitted to question such jurisdiction. (Judgment of December 30,
1893, 29 Civ. Jur., 64.)
According to article 305 (of the Ley de Enjuiciamiento Civil) the plaintiff shall
be presumed to have tacitly submitted himself to the jurisdiction of the court by
the mere act of filing his complaint therein, and in the case of the defendant
where the latter after appearing in the action takes any step therein other than to
object to such jurisdiction. (Judgment of September 21, 1878, 40 Civ. Jur., 232.)
Plaintiff and defendant are presumed to have submitted themselves to the
jurisdiction of the court, the former by the mere act of filing his complaint therein
and the latter by his answering the same and taking any step other than demurring
to such jurisdiction as provided in articles 56 to 58 of the Ley de Enjuiciamiento
Civil. (Judgment of July 27, 1883, 52 Civ. Jur., 511.)
In order that a tacit submission based upon the mere act filing the complaint may
be valid the court must be one of ordinary jurisdiction as provided in article 4 of
the Ley de Ebjuiciamiento Civil. (Judgment of August 27, 1864, 10 Civ. Jur., 14.)
The following language is taken from The Earl of Halsbury's Laws of England (vol. 1, p. 50):
The old distinction between 'local' and 'transitory' actions, though of far less
importance than it was before the passing of the judicature acts, must still be
borne in mind in connection with actions relating to land situate outside the local
jurisdiction of our courts. 'Transitory' actions were those in which the facts in
issue between the parties had no necessary connection with a particular locality,
e.g., contract, etc.; whilst "local" actions were those in which there was such a
connection, e.g., disputes as to the title to, or trespasses to, land.
One importance of this distinction lay in the fact that in the case of local actions
the plaintiff was bound to lay the venue truly, i.e., in the county (originally in the
actual hundred) in which the land in question lay. In the case, however of a
transitory action, he might lay it wherever he pleased, subject to the power of the
court to alter it in a proper case. Local venues have now been abolished, and,
therefore, so far as actions relating to land in England are concerned, the
distinction may be disregarded.
It is, however, important from another point of view, viz, that of jurisdiction as
distinct from procedure. In the case of real actions relating to land in the colonies
or foreign countries the English relating courts had, even before the judicature
acts, no jurisdiction; and, therefore, the removal by those acts of a difficulty of
procedure — viz, the rule as to local venue — which might have stood in the
way, if they had and wished to exercise jurisdiction, did not in any way confer
jurisdiction in such cases. The lack of jurisdiction still exists, and our courts
refuse to adjudicate upon claims of title to foreign land in proceedings founded
on an alleged invasion of the proprietary rights attached thereto, and to award
damages founded on that adjudication; in other words, an action for trespass to,
or for recovery of, foreign land can not be maintained in England, at any rate if
the defendant chooses to put in issue the ownership of such land.
There is no decision of the Supreme Court of the Philippine Islands in conflict with the principles laid
down in this opinion. In the case of Serrano vs. Chanco (5 Phil. Rep., 431), the matter before the
court was the jurisdiction of the Court of First Instance over the actions and proceedings relating to
the settlement of the estates of deceased persons. The determination of that question required the
consideration of section 602 of the code of Civil Procedure rather than section 377 of that code. The
argument of the court touching the last-named section, is inapplicable to the case at bar and would
not affect it if it were. The reference to the jurisdiction of the court made in that argument based on
section 377 was unnecessary to a decision of the case.
The case of Molina vs. De la Riva (6 Phil. Rep., 12), presented simply the question whether or not an
agreement between parties to submit themselves to the jurisdiction of a particular court to the
exclusion of the court provided by law as the appropriate court in the premises could be enforced. As
we have before intimated, it touched no question involved in the litigation at bar.
In the case of Molina vs. De la Riva (7 Phil. Rep., 302), the action was one to foreclose a mortgage
upon a real and personal property. In discussing the matter before it the court said:
The demurrer was also based upon the ground that this was an action to foreclose
a mortgage and by the provisions of sections 254 and 377 of the Code of Civil
Procedure it should have been brought in the Province of Albay where the
property was situated. The action is clearly an action to foreclose a mortgage,
lien, or incumbrance upon property, but it will be noticed that section 254 relates
only to mortgages on real estate. This contract covered both real and personal
property, and while, perhaps, an action could not be maintained in the Court of
First Instance of Manila for the foreclosure of the alleged mortgage upon the real
estate situated in Albay, yet so far as the personal property was concerned, we
know of no law which would deprive that court of jurisdiction.
As will readily be observed, the court in the remarks above quoted was not discussing or deciding the
question whether or not an action could be maintained in the Court of First Instance of the city of
Manila to foreclose a mortgage on real estate located in Albay; but, rather, whether or not an action
could be maintained in the Court of First Instance of the city of Manila to foreclose a mortgate on
personal property located in the Province of Albay. The remark of the court that perhaps the former
action could not be maintained was not intended to be decisive and was not thought at the time to be
an indication of what the decision of the court might be if that precise case were presented to it with
full argument and citation of authorities.
The case of Castano vs. Lobingier (9 Phil. Rep., 310), involved the jurisdiction of the Court of First
Instance to issue a writ of prohibition against a justice of the peace holding his court outside the
province in which the Court of First Instance was sitting at the time of issuing the writ. The
determination of the question presented different considerations and different provisions of law from
those which rule the decision of the case at bar.
We, therefore, hold that the terms of section 377 providing that actions affecting real property shall
be brought in the province where the land involved in the suit, or some part thereof, is located, do not
affect the jurisdiction of Courts of First Instance over the land itself but relate simply to the personal
rights of parties as to the place of trial.
We come, now, to a consideration of the special laws relating to the condemnation of land by railroad
companies upon which also plaintiff relies. Of those laws only one is of importance in the decision of
this case. That is Act No. 1258. In it are found these provisions:
SECTION 1. In addition to the method of procedure authorized for the exercise
of the power of eminent domain by sections two hundred and forty-one to two
hundred and fifty-three, inclusive, of Act Numbered One hundred and ninety,
entitled "An Act providing a Code of Procedure in civil actions and special
proceedings in the Philippine Islands," the procedure in this Act provided may be
adopted whenever a railroad corporation seeks to appropriate land for the
construction, extension, or operation of its railroad line.
xxx xxx xxx
SEC. 3. Whenever a railroad corporation is authorized by its charter, or by
general law, to exercise the power of eminent domain in the city of Manila or in
any province, and has not obtained by agreement with the owners thereof the
lands necessary for its purposes as authorized by law, it may in its complaint,
which in each case shall be instituted in the Court of First Instance of the city of
Manila if the land is situated in the city of Manila, or in the Court of First
Instance of the province where the lands is situated, join as defendants all persons
owing or claiming to own, or occupying, any of the lands sought to be
condemned, or any interest therein, within the city or province, respectively,
showing, so far as practicable, the interest of each defendant and stating with
certainty the right of condemnation, and describing the property sought to be
condemned. Process requiring the defendants to appear in answer to the
complaint shall be served upon all occupants of the lands sought to be
condemned, and upon the owners and all persons claiming interest therein, so far
as known. If the title to ant lands sought to be condemned appears to be in the
Insular Government, although the lands are occupied by private individuals, or if
it is uncertain whether the title is in the Insular Government or in private
individuals, or if the title is otherwise so obscure or doubtful that the company
can not with accuracy or certainty specify who are the real owners, averment may
be made by the company in its complaint to that effect. Process shall be served
upon resident and no residents in the same manner as provided therefor in Act
Numbered One hundred and ninety, and the rights of minors and persons of
unsound mind shall be safeguarded in the manner in such cases provided in said
Act. The court may order additional and special notice in any case where such
additional or special notice is, in its opinion, required.
SEC. 4. Commissioners appointed in pursuance of such complaint, in accordance
with section two hundred and forty-three of Act Numbered One hundred ad
ninety, shall have jurisdiction over all the lands included in the complaint,
situated within the city of Manila or within the province, as the case may be, and
shall be governed in the performance of their duties by the provisions of sections
two hundred and forty-four and two hundred and forty-five, and the action of the
court upon the report of the commissioners shall be governed by section two
hundred and forty-six of Act Numbered One hundred and ninety.
The provisions of the Code of Civil Procedure referred to in these sections are, so far as material
here, the following:
SEC. 241. How the right of eminent domain may be exercised. — The
Government of the Philippine Islands, or of any province or department thereof,
or of any municipality, and any person, or public or private corporation having by
law the right to condemn private property for public use, shall exercise that right
in the manner hereinafter prescribed.
SEC. 242. The complaint. — The complaint in condemnation proceedings shall
state with certainty the right of condemnation, and describe the property sought to
be condemned, showing the interest of each defendant separately.
SEC. 243. Appointment of Commissioners. — If the defendant concede that the
right of condemnation exists on the part of the plaintiff, or if, upon trial, the court
finds that such right exists, the court shall appoint three judicious and
disinterested landowners of the province in which the land to be condemned, or
some portion of the same, is situated, to be commissioners to hear the parties and
view the premises, and assess damages to be paid for the condemnation, and to
report their proceedings in full to the court, and shall issue a commission under
the seal of the court to the commissioners authorizing the performance of the
duties herein prescribed.
We are of the opinion that what we have said in the discussion of the effect of section 377 relative to
the jurisdiction of Courts of First Instance over lands is applicable generally to the sections of law
just quoted. The provisions regarding the place and method of trial are procedural. They touched not
the authority of the court over the land but, rather, the powers which it may exercise over the parties.
They relate not to the jurisdictional power of the court over the subject matter but to the place where
that jurisdiction is to be exercised. In other words, the jurisdiction is assured, whatever the place of its
exercise. The jurisdiction is the thing; the place of exercise its incident.
These special laws contain nothing which in any way indicates an intention of the legislature to alter
the nature or extent of the jurisdiction of Courts of First Instance granted by Act No. 136. As we said
in discussing the provisions of section 277 of the Code of Civil Procedure, we can not hold that
jurisdiction to be limited unless by express provision or clear intendment.
We have thus far drawn an analogy between section 377 of the code of Civil Procedure and section 3
of Act No. 1258, asserting that neither the one nor the other was intended to restrict, much less
deprive, the Courts of First Instance of the jurisdiction over lands in the Philippine Islands conferred
upon them by Act No. 136. We have extended that analogy to include the proposition that the
question of venue as presented in the Acts mentioned does not relate to jurisdiction of the court over
the subject matter, it simply granting to the defendant certain rights and privileges as against the
plaintiff relative to the place of trial, which rights and privileges he might waive expressly or by
implication. We do not, however, extend that analogy further. On reading and comparing section 377
of the Code of Civil Procedure with section 3 of Act No. 1258. both of which are hearing set forth, a
difference is at once apparent in the wording of the provisions relating to the place of trial. Section
277 stipulates that all actions affecting real estate "shall be brought in the province where the land, or
some part thereof, is situated." Section 3 of Act No. 1258 provides that in an action brought by a
railroad corporation to condemn land for its uses the plaintiff "may in its complaint, which in each
case shall be instituted . . . in the Court of First Instance of the province where the land is situated,
join as defendants all persons owning, etc . . . land within the city or province . . ." Section 1 of that
Act, as we have already seen, says that: "In addition to the method of procedure authorized for the
exercise of the power of eminent domain by sections two hundred and forty-one to two hundred and
fifty-three" of the Code of Civil Procedure, "the procedure in this Act may be adopted whenever a
railroad corporation seeks to appropriate land . . . ."
From these provisions we note, first, that the procedure expressly made applicable to actions for the
condemnation of land by railroad corporations is not that contained in section 377 but that found in
sections 241 to 253 of the Code of Civil Procedure. Section 377 is nowhere expressly mentioned in
Act No. 1258 nor is it anywhere touched or referred to by implication. The procedure embodied in
that Act to consummate the purposes of its creation is complete of itself, rendered so either by
provisions contained in the Act itself, rendered so either by provisions contained in the Act itself or
by reference to specific sections of the Code of Civil Procedure which by such reference are made a
part thereof.
In the second place, we observe that, so far as venue is concerned, Act No. 1258 and section 377 are
quite different in their wording. While the latter provides that the actions of which it treats shall be
commenced in the province where the land, or some part thereof, lies, Act No. 1258, section 3,
stipulates that the actions embraced in its terms shall be brought only in the province where the land
lies. This does not mean, of course, that if a single parcel of land under the same ownership, lying
party in one province and partly in another, is the subject of condemnation proceedings begun by a
railroad corporation, a separate action must be commenced in each province. Nor does it mean that
the aid of section 377 is required to obviate such necessity. The situation would be met and solved by
the general principles of law and application of which to every situation is an inherent or implied
power of every court. Such, for example, are the prohibition against multiplicity of actions, the rules
against division of actions into parts, and the general principle that jurisdiction over a subject matter
singly owned will not be divided among different courts, the one in which the action is first brought
having exclusive jurisdiction of the whole. The provisions of these two laws, section 377 and Act No.
1258, differ in the manner indicated because they refer to subjects requiring inherently different
treatment, so different, in fact, as to be in some respects quite opposite. While it is true that section
377 speaks of action for the condemnation of real estate, nevertheless it was intended to cover simply
the ordinary action affecting title to or interest in real estate, where the land involved is comparatively
speaking, compact together. Its provisions were not intended to meet a situation presented by an
action to condemn lands extending contiguously from one end of the country to the other. Act No.
1258 is a special law, enacted for a particular purpose, and to meet a particular exigency. The
conditions found in an action for the condemnation of real estate by a railroad company might and
generally would be so different that the application of the provisions of section 377 permitting the
venue to be laid in any province where any part of the land lies would work a very great hardship to
many defendants in such an action. To hold that a railroad company desiring to build a line from
Ilocos Norte to Batangas, through substantially the whole of the Island of Luzon, might lay the venue
in Batangas, it being a province in which a part of the land described in the complaint was located,
would be to require all the parties defendant in Ilocos Norte and intervening provinces, with their
witnesses, to go to Batangas, with all the inconvenience and expense which the journey would entail,
and submit the valuation of their lands into only to the Court of First Instance of Batangas but to a
commission appointed in that province. The hardship to such defendants under such a holding is so
manifest that we are of the opinion that it was not intended that section 377 of the code of Civil
Procedure should apply to actions for condemnation. Under the provisions of that section, the
defendant has no right to ask for a change of venue if the land involved in the litigation, or any part
thereof, is located in the province where the court sits before which the action has been commenced.
When, therefore, an action such as is detailed above is begun by a railroad company in Batangas
against persons whose lands lie in Ilocos Norte, there being also involved lands lying in Batangas,
such defendants would have no right under section 377, if it were applicable, to demand that the trial
as to their lands take place in the Province of Ilocos Norte. We do not believe that this was intended.
We believe, rather, that under the provisions of the special laws relating to the condemnation of real
estate by railroad companies, the defendants in the various provinces through which the line runs may
compel, if they wish, a separate action to be commenced in each province in order that they may have
a fair and convenient trial not only before the court but also before commissioner of their province
who are not only before commissioners of their province who are not only conveniently at hand, but
who are best able to judge of the weight of testimony relative to the value of land in that province.
We, therefore, hold that section 377 of the Code of Civil Procedure is not applicable to actions by
railroad corporations to condemn lands; and that, while with the consent of defendants express or
implied the venue may be laid and the action tried in any province selected by the plaintiff
nevertheless the defendants whose lands lie in one province, or any one of such defendants, may, by
timely application to the court, require the venue as to their, or, if one defendant, his, lands to be
changed to the province where their or his lands lie. In such case the action as to all of the defendants
not objecting would continue in the province where originally begun. It would be severed as to the
objecting defendants and ordered continued before the court of the appropriate province or provinces.
While we are of that opinion and so hold it can not affect the decision in the case before us for the
reason that the defendants are not objecting to the venue and are not asking for a change thereof.
They have not only expressly submitted themselves to the jurisdiction of the court but are here asking
that that jurisdiction be maintained against the efforts of the plaintiff to remove it.
The principles which we have herein laid down we do not apply to criminal cases. They seem to rest
on a different footing. There the people of the state is a party. The interests of the public require that,
to secure the best results and effects in the punishment of crime, it is necessary to prosecute and
punish the criminal in the very place, as near as may be, where he committed his crime. As a result it
has been the uniform legislation, both in statutes and in constitutions, that the venue of a criminal
action must be laid in the place where the crime was committed. While the laws here do not
specifically and in terms require it, we believe it is the established custom and the uniform holding
that criminal prosecutions must be brought and conducted, except in cases especially provided by
law, in the province where the crime is committed.
For these reasons the judgment below must be reversed and the cause remanded to the trial court with
direction to proceed with the action according to law. So ordered.
G.R. No. 136368 January 16, 2002
JAIME TAN, JR., as Judicial Administrator of the Intestate Estate of Jaime C. Tan, petitioner,
vs.
HON. COURT OF APPEALS (Ninth Special Div.) and JOSE A. MAGDANGAL and
ESTRELLA MAGDANGAL, respondents.
PUNO, J.:
This is a petition for review of the Decision of the Court of Appeals dated July 15, 1998 1 and its
Resolution dated November 9, 19982 denying petitioner's motion for reconsideration in CA-G.R. SP-
41738.
The facts are as stated in the impugned Decision, viz:
"Involved in this case is a parcel of land, designated as Lot No. 645-C, with an area of
34,829 square meters, more or less, situated in Bunawan, Davao City. The lot was once
covered by TCT No. T-72067 of the Registry of Deeds of Davao City in the name of the
late Jaime C. Tan (Tan, for short) married to Praxedes V. Tan.
From the petition, the motion to dismiss petition, their respective annexes and other
pleadings, we gather the following factual antecedents:
On January 22, 1981, Tan, for a consideration of P59,200.00, executed a deed of absolute
sale over the property in question in favor of spouses Jose Magdangal and Estrella
Magdangal. Simultaneous with the execution of this deed, the same contracting parties
entered into another agreement whereunder Tan given one (1) year within which to redeem
or repurchase the property.
Albeit given several opportunities and/or extensions to exercise the option, Tan failed to
redeem the property until his death on January 4, 1988.
On May 2, 1988, Tan's heirs filed before the Regional Trial Court at Davao City a suit
against the Magdangals for reformation of instrument. Docketed as CIVIL CASE NO.
19049-88, the complaint alleged that, while Tan and the Magdangals denominated their
agreement as deed of absolute sale, their real intention was to conclude an equitable
mortgage.
Barely hours after the complaint was stamped 'received,' the Magdangals were able to have
Tan's title over the lot in question canceled and to secure in their names TCT No. T-
134470. This development prompted the heirs of Tan, who were to be later substituted by
Jaime V. Tan, Jr. (Tan, Jr.) as plaintiff, to file a supplemental complaint.
The intervening legal tussles are not essential to this narration. What is material is that on
June 4, 1991, Branch 11 of the Regional Trial Court of Davao City rendered judgment
finding for Tan, Jr., as plaintiff therein. The dispositive portion of the decision reads:.
'WHEREFORE, judgment is rendered:
1. The Deed of Absolute Sale (Exhibits B, B-1) is, in accordance with the true
intention of the parties, hereby declared and reformed an equitable mortgage;
2. The plaintiff is ordered to pay the defendants within 120 days after the
finality of this decision P59,200 plus interest at the rate of 12% per annum from
May 2, 1988, the date the complaint was filed, until paid;
3. In order to avoid multiplicity of suits and to fully give effect to the true
intention of the parties, upon the payment of the aforesaid amount, TCT No. T-
134470 in the name of defendants Jose Magdangal and Estrella Magdangal (Exh.
13) and shall be deemed canceled and null and void and TCT No. T-72067 in the
name of Jaime C. Tan and Praxedes Valles Tan (Exh. A) be reinstated).
No pronouncement as to costs.
SO ORDERED. (Annex 'B', Petition; Emphasis added).'
From the above, the Magdangals appealed to this Court in CA-G.R. CV No. 33657.
In a decision promulgated on September 28, 1995, this Court, thru its then Special Third
Division, affirmed in toto the appealed decision of the lower court. Copy of this affirmatory
judgment was each received by the Magdangals and Tan, Jr. on October 5, 1995.
On March 13, 1996, the Clerk of this Court entered in the Book of Entries of Judgment the
Decision in CA-G.R. CV No. 33657 and issued the corresponding Entry of Judgment
which, on its face, stated that the said Decision 'has on October 21, 1995 become final and
executory' (Annex 'L', Petition; Emphasis added).
On March 21, 1996, the Magdangals filed in the lower court a MOTION FOR
CONSOLIDATION AND WRIT OF POSSESSION, therein alleging that they did not
appeal from the aforesaid decision of this Court, adding '[T]hat the appealed judgment of
the Court of Appeals has become final and executory 15 days from October 5, 1995 or up
to October 20, 1995, which the 120 days redemption period commences. And noting that
the redemption period has expired without Tan, Jr. exercising his option, the Magdangals
thus prayed that the title 'in the name of Jaime C. Tan and Praxedes Tan be consolidated
and confirmed in the name of the (Magdangals) x x x and pending such issuance, a writ of
possession be ordered issued (Annex "C", Petition).1âwphi1.nêt
In opposition to this motion (Annex 'F', Petition), Tan, Jr. alleged, among other things, that
until an entry of judgment has been issued by the Court of Appeals and copy thereof
furnished the parties, the appealed decision of the court a quo in this case cannot be
considered final and executory. Pressing the point, Tan, Jr., citing Cueto vs. Collantes,
infra., would then assert that the period of redemption on his part commenced to run from
receipt of entry of judgment in CA-G.R. CV No. 33657.
Meanwhile, Tan, Jr. via a motion for execution dated March 27, 1996, which he filed
directly with this court, prayed this court to direct the court a quo to issue the
corresponding writ of execution in Civil Case No. 19049-88. In a related move, Tan, Jr.
filed on April 16, 1996, a MANIFESTATION AND MOTION therein advising the court a
quo of his intention to redeem the property in question and of the fact that, on such date, he
has deposited with its clerk of court the repurchase price, plus interest, as required by its
original decision. By way of relief, Tan, Jr. prayed that the Magdangals be ordered to claim
the amount thus deposited and the Register of Deeds of Davao City, to reinstate the title of
Jaime Tan and Praxedes Tan.
Jointly acting on the aforementioned MOTON FOR CONSOLIDATION AND WRIT OF
POSSESION of the Magdangals (Annex 'C', Petition), MANIFESTATION AND MOTION
of Tan, Jr. (Annex 'I', Petition), the court a quo presided by the respondent judge, came out
with the first challenged order of June 10, 1996 (Annex 'N', Petition) dispositively reading,
as follows:
'WHEREFORE, x x x the Motion for Consolidation and a Writ of Possession is
hereby DENIED for lack of merit.
The deposit of the amount of P116,032.00 made by plaintiff with the Office of
Court x x x on April 17, 1996 is hereby considered full payment of the
redemption price and the Clerk of Court is hereby ordered to deliver said amount
to herein defendants.
The Register of Deeds of Davao City x x x is hereby directed to cancel TCT No.
T-134470 in the name of Jose Magdangal and Estrella Magdangal and, thereafter,
to reinstate TCT No. 72067 in the name of Jaime C. Tan and Praxedes Valles Tan
and to submit her compliance thereto within ten (10) days from receipt of this
Order.
SO ORDERED.'
Explaining her action, the respondent judge wrote in the same order:
'Following the ruling of the Supreme Court in Cueto vs. Collantes, et al., 97 Phil.
325, the 120 days period for plaintiff to pay the amount of P59,200.00 plus
interest x x x should be reckoned from the date of Entry of Judgment x x x which
was March 13, 1996. The plaintiff made a deposit on April 17, 1996 well within
the 120-day period mandated by the decision of this Court.'
In due time, the Magdangals moved for a reconsideration. However, in her next assailed
order of July 24, 1996 (Annex 'R', Petition), the respondent judge denied the motion for
being proforma and fatally defective."3
Petitioner assails the aforequoted Decision as follows:
"I. Petitioner's right to due process was violated when the Court of Appeals rendered a
judgment on the merits of private respondents' petition without granting to petitioner the
opportunity to controvert the same.
II. Appeal not certiorari was the appropriate remedy of private respondents as there was no
grave abuse of discretion as to amount to lack of or excess of jurisdiction on the part of the
trial judge. Neither is delay in resolving the main case a ground for giving due course to the
petition.
III. Cueto vs. Collantes, 97 Phil. 325, was disregarded by the Court of Appeals in resolving
the petition of private respondents. It is still good case law and was in effect made a part of
section 2 of Rule 68 of the 1997 Rules of Civil Procedure on Foreclosure of Mortgage.
IV. The St. Dominic vs. Intermediate Appellate Court, 138 SCRA 242 case is not applicable
to the case at bar; on the other hand the ruling in Gutierrez Hermanos vs. de La Riva, 46
Phil. 827, applies.
V. Equity considerations justify giving due course to this petition."4 (emphasis ours)
We will immediately resolve the key issue of what rule should govern the finality of judgment
favorably obtained in the trial court by the petitioner.
The operative facts show that in its Decision of June 4, 1991, the trial court held that: (1) the contract
between the parties is not an absolute sale but an equitable mortgage; and (2) petitioner Tan should
pay to the respondents Magdangal "within 120 days after the finality of this decision P59,200.00 plus
interest at the rate of 12% per annum from May 2, 1988, the date the complaint was filed, until
paid."5
On September 28, 1995 in CA-G.R. CV No. 33657, the Special Third Division of the Court of
Appeals affirmed the decision of the trial court in toto. Both parties received the decision of the
appellate court on October 5, 1995. On March 13, 1996, the clerk of court of the appellate court
entered in the Book of Entries of Judgement the decision in CA-G.R. CV No. 33657 and issued the
corresponding Entry of Judgment which, on its face, stated that the said decision "has on October 21,
1995 become final and executory."6
The respondents Magdangal filed in the trial court a Motion for Consolidation and Writ of
Possession.7 They alleged that the 120-day period of redemption of the petitioner has expired. They
reckoned that the said period began 15 days after October 5, 1995, the date when the finality of the
judgment of the trial court as affirmed by the appellate court commenced to run.
On the other hand, petitioner filed on March 27, 1996 a motion for execution in the appellate court
praying that it "direct the court a quo to issue the corresponding writ of execution in Civil Case No.
19049-88."8 On April 17, 1996, petitioner deposited with the clerk of court the repurchase price of the
lot plus interest as ordered by the decision.
On June 10, 1996, the trial court allowed the petitioner to redeem the lot in question. It ruled that the
120-day redemption period should be reckoned from the date of Entry of Judgment in the appellate
court or from March 13, 1996.9 The redemption price was deposited on April 17, 1996. As
aforestated, the Court of Appeals set aside the ruling of the trial court.
From 1991-1996, the years relevant to the case at bar, the rule that governs finality of judgment is
Rule 51 of the Revised Rules of Court. Its sections 10 and 11 provide:
"SEC. 10. Entry of judgments and final resolutions. - If no appeal or motion for new trial or
reconsideration is filed within the time provided in these Rules, the judgment or final
resolution shall forthwith be entered by the clerk in the book of entries of judgments. The
date when the judgment or final resolution becomes executory shall be deemed as the date
of its entry. The record shall contain the dispositive part of the judgment or final resolution
and shall be signed by the clerk, with a certificate that such judgment or final resolution has
become final and executory. (2a, R36)
SEC. 11. Execution of judgment. - Except where the judgment or final order or resolution,
or a portion thereof, is ordered to be immediately executory, the motion for its execution
may only be filed in the proper court after its entry.
In original actions in the Court of Appeals, its writ of execution shall be accompanied by a
certified true copy of the entry of judgment or final resolution and addressed to any
appropriate officer for its enforcement.
In appealed cases, where the motion for execution pending appeal is filed in the Court of
Appeals at a time that it is in possession of the original record or the record on appeal, the
resolution granting such motion shall be transmitted to the lower court from which the case
originated, together with a certified true copy of the judgment or final order to be executed,
with a directive for such court of origin to issue the proper writ for its enforcement."
This rule has been interpreted by this Court in Cueto vs. Collantes as follows:10
"The only error assigned by appellants refer to the finding of the lower court that plaintiff
can still exercise his right of redemption notwithstanding the expiration of the 90-day
period fixed in the original decision and, therefore, defendants should execute the deed of
reconveyance required in said decision. Appellants contend that, the final judgment of the
Court of Appeals having been entered on July 8, 1953, the 90-day period for the exercise of
the right of redemption has long expired, it appearing that plaintiff deposited the
redemption money with the clerk of court only on October 17, 1953, or, after the expiration
of 101 days. Appellee brands this computation as erroneous, or one not in accordance with
the procedure prescribed by the rules of court.
Appellee's contention should be sustained. The original decision provides that appellee may
exercise his right of redemption within the period of 90 days from the date the judgment
has become final. It should be noted that appellee had appealed from this decision. This
decision was affirmed by the court of appeals and final judgment was entered on July 8,
1953. Does this mean that the judgment became final on that date?
Let us make a little digression for purposes of clarification. Once a decision is rendered by
the Court of Appeals a party may appeal therefrom by certiorari by filing with the Supreme
Court a petition within 10 days from the date of entry of such decision (Section 1, Rule 46).
The entry of judgment is made after it has become final, i.e., upon the expiration of 15 days
after notice thereof to the parties (Section 8, Rule 53, as modified by a resolution of the
Supreme Court dated October 1, 1945). But, as Chief Justice Moran has said, 'such finality
*** is subject to the aggrieved party's right of filing a petition for certiorari under this
section,' which means that 'the Court of Appeals shall remand the case to the lower court
for the execution of its judgment, only after the expiration of ten (10) days from the date of
such judgment, if no petition for certiorari is filed within that period.' (1 Moran, Comments
on the Rules of Court, 1952 ed., p. 950) It would therefore appear that the date of entry of
judgment of the Court of Appeals is suspended when a petition for review is filed to await
the final entry of the resolution or decision of the Supreme Court.
Since in the present case appellee has filed a petition for review within the reglementary period,
which was dismissed by resolution of July 6, 1953, and for lack of a motion for reconsideration the
entry of final judgment was made on August 7, 1953, it follows that the 90-day period within which
appellee may exercise his right of redemption should be counted from said date, August 7, 1953. And
appellee having exercised such right on October 17, 1953 by depositing the redemption money with
the clerk of court, it is likewise clear that the motion be filed for the exercise of such right is well
taken and is within the purview of the decision of the lower court."
On April 18, 1994, this Court issued Circular No. 24-94, viz:
"TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX
APPEALS, REGIONAL TRIAL COURTS, METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL
COURTS, AND ALL MEMBERS OF THE INTEGRATED BAR OF THE
PHILIPPINES
SUBJECT: RESOLUTION OF THE COURT EN BANC APPROVING AND
PROMULGATING THE REVISED PROVISION ON EXECUTION OF
JUDGMENTS. SPECIFICALLY IN APPEALED CASES, AND AMENDING
SECTION 1, RULE 39 OF THE RULES OF COURT
It appears that in a number of instances, the execution of judgments in appealed cases
cannot be promptly enforced because of undue administrative delay in the remand of the
records to the court of origin, aggravated at times by misplacement or misdelivery of said
records. The Supreme Court Committee on the Revision of the Rules of Court has drafted
 proposals including a provision which can remedy the procedural impasse created by said
contingencies.
The rationale of the new rule is explained by retired Justice F.D. Regalado as follows:12
Accordingly, pending approval by the Court of the revised rules on Civil Procedure, and to
provide a solution to the aforestated problems, the Court Resolved to approve and
promulgate the following section thereof on execution of judgments, amending Section 1,
Rule 39 of the Rules of Court:
Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter of
right, on motion, upon a judgment or order that disposes of the action or proceeding upon
expiration of the period to appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, such execution may forthwith be
applied for in the lower court from which the action originated, on motion of the judgment
obligee, submitting therewith certified true copies of the judgment or judgments or the final
order or orders sought to be enforced and of the entry thereof, with notice to the adverse
party.
The appellate court may, on motion in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ of execution.
This resolution shall be published in two (2) newspapers of general circulation and shall
take effect on June 1, 1994.
April 18, 1994.
"(Sgd.) ANDRES R. NARVASA
Chief Justice"
The Circular took effect on June 1, 1994.
The 1997 Revised Rules of Civil Procedure, however, amended the rule on finality of judgment by
providing in section 1, Rule 39 as follows:
"Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter of
right, on motion, upon a judgment or order that disposes of the action or proceeding upon
the expiration of the period to appeal therefrom if no appeal has been duly perfected. (1a)
If the appeal has been duly perfected and finally resolved, the execution may forthwith be
applied for in the court of origin, on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final order or orders sought to be
enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ of execution."
"1. The term 'final order' is used in two senses depending on whether it is used on the issue
of appealability or on the issue of binding effect. For purposes of appeal, an order is "final"
if it disposes of the action, as distinguished from an interlocutory order which leaves
something to be done in the trial court with respect to the merits of the case (De la Cruz, et
al. vs. Paras, et al., L-41053, Feb. 27, 1976). For purposes of binding effect or whether it
can be subject of execution, an order is 'final' or executory after the lapse of the
reglementary period to appeal and no appeal has been perfected (see Perez, et al. vs.
Zulueta, L-10374, Sept. 30, 1959; cf. Denso [Phil.], Inc. vs. IAC, et al., G.R. No. 75000,
Feb. 27, 1987; Montilla vs. CA, et al., L-47968, May 9, 1988).
2. On the aspect of appealability, these revised Rules use the adjective 'final' with respect to
orders and resolutions, since to terminate a case the trial courts issue orders while the
appellate courts and most of the quasi-judicial agencies issue resolutions. Judgment are not
so qualified since the use of the so-called interlocutory judgments is not favored in this
jurisdiction, while the categorization of an order or a resolution for purposes of denoting
that it is appealable is to distinguish them from interlocutory orders or resolutions.
However, by force of extended usage the phrase 'final and executory judgment' is
sometimes used and tolerated, although the use of 'executory' alone would suffice. These
observations also apply to the several and separate judgments contemplated in Rule 36, or
partial judgments which totally dispose of a particular claim or severable part of the case,
subject to the power of the court to suspend or defer action on an appeal from or further
proceedings in such special judgment, or as provided by Rule 35 on the matter of partial
summary judgments which are not considered as appealable (see Sec. 4, Rule 35 and the
explanation therein).
The second paragraph of this section is an innovation in response to complaints over the
delay caused by the former procedure in obtaining a writ of execution of a judgment, which
has already been affirmed on appeal, with notice to the parties. As things then stood, after
the entry of judgment in the appellate court, the prevailing party had to wait for the records
of the case to be remanded to the court of origin when and where he could then move for
the issuance of a writ of execution. The intervening time could sometimes be substantial,
especially if the court a quo is in a remote province, and could also be availed of by the
losing party to delay or thwart actual execution.
On these considerations, the Supreme Court issued Circular No. 24-94, dated April 18,
1994, approving and promulgating in advance this amended Section 1 of Rule 39 and
declaring the same effective as of June 1, 1994.
Under the present procedure, the prevailing party can secure certified true copies of the
judgment or final order of the appellate court and the entry thereof, and submit the same to
the court of origin with and to justify his motion for a writ of execution, without waiting for
its receipt of the records from the appellate court. That motion must be with notice to the
adverse party, with a hearing when the circumstances so require, to enable him to file any
objection thereto or bring to the attention of said court matters which may have transpired
 during the pendency of the appeal and which may have a bearing on the execution sought to
enforce the judgment.
The third paragraph of this section, likewise a new provision, is due to the experience of the
appellate courts wherein the trial court, for reasons of its own or other unjustifiable
circumstances, unduly delays or unreasonably refuses to act on the motion for execution or
issue the writ therefor. On motion in the same case while the records are still with the
appellate court, or even after the same have been remanded to the lower court, the appellate
court can direct the issuance of the writ of execution since such act is merely in the
enforcement of its judgment and which it has the power to require."
It is evident that if we apply the old rule on finality of judgment, petitioner redeemed the subject
property within the 120-day period of redemption reckoned from the appellate court's entry of
judgment. The appellate court, however, did not apply the old rule but the 1997 Revised Rules of
Civil Procedure. In fine, it applied the new rule retroactively and we hold that given the facts of the
case at bar this is an error.
There is no dispute that rules of procedure can be given retroactive effect. This general rule, however,
has well-delineated exceptions. We quote author Agpalo:13
"9.17. Procedural laws.
Procedural laws are adjective laws which prescribe rules and forms of procedure of
enforcing rights or obtaining redress for their invasion; they refer to rules of procedure by
which courts applying laws of all kinds can properly administer justice. They include rules
of pleadings, practice and evidence. As applied to criminal law, they provide or regulate the
steps by which one who commits a crime is to be punished.
The general rule that statutes are prospective and not retroactive does not ordinarily apply to
procedural laws. It has been held that "a retroactive law, in a legal sense, is one which takes
away or impairs vested rights acquired under laws, or creates a new obligation and imposes
a new duty, or attaches a new disability, in respect of transactions or considerations already
past. Hence, remedial statutes or statutes relating to remedies or modes of procedure, which
do not create new or take away vested rights, but only operate in furtherance of the remedy
or confirmation of rights already existing, do not come within the legal conception of a
retroactive law, or the general rule against the retroactive operation of statutes." The general
rule against giving statutes retroactive operation whose effect is to impair the obligations of
contract or to disturb vested rights does not prevent the application of statutes to
proceedings pending at the time of their enactment where they neither create new nor take
away vested rights. A new statute which deals with procedure only is presumptively
applicable to all actions - those which have accrued or are pending.
Statutes regulating the procedure of the courts will be construed as applicable to actions
pending and undetermined at the time of their passage. Procedural laws are retroactive in
that sense and to that extent. The fact that procedural statutes may somehow affect the
litigants' rights may not preclude their retroactive application to pending actions. The
retroactive application of procedural laws is not violative of any right of a person who may
feel that he is adversely affected. Nor is the retroactive application of procedural statutes
constitutionally objectionable. The reason is that as a general rule no vested right may
attach to, nor arise from, procedural laws. It has been held that "a person has no vested right
in any particular remedy, and a litigant cannot insist on the application to the trial of his
case, whether civil or criminal, of any other than the existing rules of procedure."
Thus, the provision of Batas Bilang 129 in Section 39 thereof prescribing that "no record on
appeal shall be required to take an appeal" is procedural in nature and should therefore be
applied retroactively to pending actions. Hence, the question as to whether an appeal from
an adverse judgment should be dismissed for failure of appellant to file a record on appeal
within thirty days as required under the old rules, which question is pending resolution at
the time Batas Bilang 129 took effect, became academic upon the effectivity of said law
because the law no longer requires the filing of a record on appeal and its retroactive
application removed the legal obstacle to giving due course to the appeal. A statute which
transfers the jurisdiction to try certain cases from a court to a quasi-judicial tribunal is a
remedial statute that is applicable to claims that accrued before its enactment but formulated
and filed after it took effect, for it does not create new nor take away vested rights. The
court that has jurisdiction over a claim at the time it accrued cannot validly try the claim
where at the time the claim is formulated and filed the jurisdiction to try it has been
transferred by law to a quasi-judicial tribunal, for even actions pending in one court may be
validly taken away and transferred to another and no litigant can acquire a vested right to be
heard by one particular court.
9.18. Exceptions to the rule.
The rule that procedural laws are applicable to pending actions or proceedings admits
certain exceptions. The rule does not apply where the statute itself expressly or by
necessary implication provides that pending actions are excepted from its operation, or
where to apply it to pending proceedings would impair vested rights. Under appropriate
circumstances, courts may deny the retroactive application of procedural laws in the event
that to do so would not be feasible or would work injustice. Nor may procedural laws be
applied retroactively to pending actions if to do so would involve intricate problems of due
process or impair the independence of the courts."
We hold that section 1, Rule 39 of the 1997 Revised Rules of Procedure should not be given
retroactive effect in this case as it would result in great injustice to the petitioner. Undoubtedly,
petitioner has the right to redeem the subject lot and this right is a substantive right. Petitioner
followed the procedural rule then existing as well as the decisions of this Court governing the
reckoning date of the period of redemption when he redeemed the subject lot. Unfortunately for
petitioner, the rule was changed by the 1997 Revised Rules of Procedure which if applied
retroactively would result in his losing the right to redeem the subject lot. It is difficult to reconcile
the retroactive application of this procedural rule with the rule of fairness. Petitioner cannot be
penalized with the loss of the subject lot when he faithfully followed the laws and the rule on the
period of redemption when he made the redemption. The subject lot may only be 34,829 square
meters but as petitioner claims, "it is the only property left behind by their father, a private law
practitioner who was felled by an assassin's bullet."14
Petitioner fought to recover this lot from 1988. To lose it because of a change of procedure on the
date of reckoning of the period of redemption is inequitous. The manner of exercising the right cannot
be changed and the change applied retroactively if to do so will defeat the right of redemption of the
petitioner which is already vested.
IN VIEW WHEREOF, the decision of the Court of Appeals dated July 15, 1998 and its Resolution
dated November 9, 1998 in CA-G.R. SP-41738 are annulled and set aside. The Orders dated June 10,
1996 and July 24, 1996 of the RTC of Davao City, 11th Judicial Region, Branch 11, in Civil Case No.
19049-88 are reinstated. No costs.
SO ORDERED.
G.R. No. 201601 March 12, 2014
MARYLOU CABRERA, Petitioner,
vs.
FELIX NG, Respondent.
DECISION
REYES, J.:
Before this Court is a petition for review on certiorari1 under Rule 45 of the Rules of Court seeking to
annul and set aside the Decision2 dated October 21, 2009 and the Resolution3 dated March 26, 2012
of the Court of Appeals (CA) in CA-G.R. SP No. 03392. The CA denied the petition for certiorari
filed by Marylou Cabrera (petitioner), which assailed the Order4 dated December 19, 2007 of the
Regional Trial Court (RTC) of Mandaue City, Branch 56, in Civil Case No. MAN-4773.
The Facts
On February 14, 2004, Felix Ng (respondent) filed a complaint for sum of money with the RTC
against the petitioner and her husband Marionilo Cabrera (spouses Cabrera), alleging that the latter
issued to him the following: (1) Metrobank Check No. 0244694 dated June 30, 2002 for the amount
of Thirty-One Thousand Pesos (₱31,000.00); (2) Metrobank Check No. 0244674 dated August 9,
2002 for the amount of Thirty-Eight Thousand Seventy-Four Pesos and Seventy-Six Centavos
(₱38,074.76); and (3) Metrobank Check No. 0244745 dated August 15, 2005 for Two Million Five
Hundred Thousand Pesos (₱2,500,000.00). That when presented for payment, the said checks were
all dishonored as the accounts from which they had been drawn were already closed.
The spouses Cabrera admitted that they issued Metrobank Check No. 0244694 and Metrobank Check
No. 0244674 to the respondent and that the same were dishonored when presented for payment.
However, they claimed that they paid the respondent the amount represented by the said checks
through the latter’s son Richard Ng. Further, they deny having issued Metrobank Check No. 0244745
to the respondent, alleging that the said check was forcibly taken from them by Richard Ng.
On August 7, 2007, the RTC rendered a Decision,5 which ordered the spouses Cabrera to pay the
respondent the following: (1) Two Million Five Hundred Sixty-Nine Thousand Seventy-Four Pesos
(₱2,569,074.00) plus legal interest from inception of the obligation until fully paid; (2) moral
damages in the amount of Fifty Thousand Pesos (₱50,000.00); (3) attorney’s fees of Twenty
Thousand Pesos (₱20,000.00); and (4) litigation expenses in the amount of Ten Thousand Pesos
(₱10,000.00).
On August 8, 2007, the spouses Cabrera received a copy of the RTC Decision dated August 7, 2007.
On August 14, 2007, the spouses Cabrera filed with the RTC a motion for reconsideration,6 which
they set for hearing on August 17, 2007. On even date, the spouses Cabrera sent a copy of their
motion for reconsideration to the respondent thru registered mail; it was actually received by the
respondent on August 21, 2007.
The said motion for reconsideration, however, was not heard on August 17, 2007 as the new acting
presiding judge of the said court had just assumed office. On August 28, 2007, the RTC issued a
notice,7 which set the said motion for reconsideration for hearing on September 25, 2007.
On September 20, 2007, the respondent filed an opposition8 to the motion for reconsideration filed by
the spouses Cabrera. The respondent alleged that the said motion for reconsideration is a mere scrap
of paper since it violated the three-day notice requirement. The respondent pointed out that the
spouses Cabrera sent to him a copy of their motion for reconsideration, which was set for hearing on
August 17, 2007, via registered mail on August 14, 2007; that he actually received a copy thereof
only on August 21, 2007 – four days after the scheduled hearing thereon.
It appears that the scheduled hearing of the spouses Cabrera’s motion for reconsideration on
September 25, 2007 did not push through. Consequently, on September 26, 2007, the RTC issued
another notice,9 which set the said motion for reconsideration for hearing on October 26, 2007.
On October 26, 2007, the RTC issued an Order,10 which directed the parties to file their additional
pleadings, after which the motion for reconsideration filed by the spouses Cabrera would be deemed
submitted for resolution.
On December 19, 2007, the RTC issued an Order11 which denied the motion for reconsideration filed
by the spouses Cabrera. The RTC pointed out that the spouses Cabrera violated Section 4, Rule 15 of
the Rules of Court, which mandates that every motion required to be heard should be served by the
movant in such a manner as to ensure its receipt by the other party at least three days before the date
of hearing. Thus:
After a meticulous scrutiny of the records of this case, the court opines that the motion was filed
beyond the reglementary three (3)[-]day period.
As the records bear out, the instant motion was mailed to the plaintiff’s counsel on August 14[, 2007]
and was set for hearing on August 17, 2007. However, the copy of said motion had reached plaintiff’s
side and a copy of which was received by plaintiff’s counsel only on August 17, 2007[,] four (4) days
late after it was supposed to be heard. Hence, a clear blatant violations [sic] of the rule on notice and
hearing.12
The RTC further opined that a motion, which fails to comply with the three-day notice requirement is
a mere scrap of paper; it is not entitled to judicial cognizance and would not toll the running of the
reglementary period for filing the requisite pleadings. Accordingly, the RTC held, its Decision dated
August 7, 2007 had already become final for failure of the spouses Cabrera to comply with the three-
day notice requirement.
The petitioner then filed a petition for certiorari13 with the CA, alleging that the RTC gravely abused
its discretion in denying her motion for reconsideration. The petitioner pointed out that the RTC did
not actually conduct a hearing on her motion for reconsideration on August 17, 2007;
that her motion for reconsideration was actually heard on October 26, 2007, after the respondent had
already filed his opposition thereto. Thus, the petitioner claimed, the issue of her failure to comply
with the three-day notice requirement had already been rendered moot. In any case, the petitioner
asserted, the RTC should have resolved her motion for reconsideration on its merits rather than
simply denying it on mere technicality.
On October 21, 2009, the CA, by way of the assailed Decision,14 denied the petition for certiorari
filed by the petitioner. The CA opined that the RTC did not abuse its discretion in denying the motion
for reconsideration filed by the spouses Cabrera since it merely applied the three-day notice
requirement under Section 4, Rule 15 of the Rules of Court. Thus:
It appears that petitioner’s Motion for Reconsideration was set for hearing on 17 August 2007. A
copy thereof was mailed to private respondent on 14 August 2007, and private respondent actually
received his copy only on 21 August 2007 or four (4) days after the set date of hearing; and thus,
depriving him of the opportunity to oppose the motion. Respondent court, therefore, correctly held
that such motion violated the three (3)-day notice rule; the essence of due process. Respondent court
had applied said rule to the given situation, and of no doubt, mere adherence to the rules cannot be
considered grave abuse of discretion on the part of the respondent court. x x x. 15 (Citation omitted)
The petitioner sought a reconsideration of the Decision dated October 21, 2009 but it was denied by
the CA in its Resolution16 dated March 26, 2012.
Hence, the instant petition.
The Issue
The sole issue to be resolved by the Court is whether the CA erred in affirming the RTC Order dated
December 19, 2007, which denied the motion for reconsideration filed by the spouses Cabrera.
The Court’s Ruling
The petition is meritorious.
Sections 4 and 5, Rule 15 of the Rules of Court provide that:
Sec. 4. Hearing of motion. – Except for motions which the court may act upon without prejudicing
the rights of the adverse party, every written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter notice.
Sec. 5. Notice of hearing. – The notice of hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing which must not be later than ten (10) days after the
filing of the motion. (Emphasis ours)
The general rule is that the three-day notice requirement in motions under Sections 4 and 5 of the
Rules of Court is mandatory. It is an integral component of procedural due process. 17 "The purpose of
the three-day notice requirement, which was established not for the benefit of the movant but rather
for the adverse party, is to avoid surprises upon the latter and to grant it sufficient time to study the
motion and to enable it to meet the arguments interposed therein."18
"A motion that does not comply with the requirements of Sections 4 and 5 of Rule 15 of the Rules of
Court is a worthless piece of paper which the clerk of court has no right to receive and which the
court has no authority to act upon."19 "Being a fatal defect, in cases of motions to reconsider a
decision, the running of the period to appeal is not tolled by their filing or pendency."20
Nevertheless, the three-day notice requirement is not a hard and fast rule. When the adverse party had
been afforded the opportunity to be heard, and has been indeed heard through the pleadings filed in
opposition to the motion, the purpose behind the three-day notice requirement is deemed realized. In
such case, the requirements of procedural due process are substantially complied with. Thus, in
Preysler, Jr. v. Manila Southcoast Development Corporation, 21 the Court ruled that:
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.
In Somera Vda. De Navarro v. Navarro, the Court held that there was substantial compliance of the
rule on notice of motions even if the first notice was irregular because no prejudice was caused the
adverse party since the motion was not considered and resolved until after several postponements of
which the parties were duly notified.
Likewise, in Jehan Shipping Corporation v. National Food Authority, the Court held that despite the
lack of notice of hearing in a Motion for Reconsideration, there was substantial compliance with the
requirements of due process where the adverse party actually had the opportunity to be heard and had
filed pleadings in opposition to the motion. The Court held:
This Court has indeed held time and again, that under Sections 4 and 5 of Rule 15 of the Rules of
Court, mandatory is the requirement in a motion, which is rendered defective by failure to comply
with the requirement. As a rule, a motion without a notice of hearing is considered pro forma and
does not affect the reglementary period for the appeal or the filing of the requisite pleading.
As an integral component of the procedural due process, the three-day notice required by the Rules is
not intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding
surprises that may be sprung upon the adverse party, who must be given time to study and meet the
arguments in the motion before a resolution of the court.1âwphi1 Principles of natural justice demand
that the right of a party should not be affected without giving it an opportunity to be heard.
The test is the presence of opportunity to be heard, as well as to have time to study the motion and
meaningfully oppose or controvert the grounds upon which it is based. x x x22
(Emphasis supplied and citations omitted)
It is undisputed that the hearing on the motion for reconsideration filed by the spouses Cabrera was
reset by the RTC twice with due notice to the parties; it was only on October 26, 2007 that the motion
was actually heard by the RTC. At that time, more than two months had passed since the respondent
received a copy of the said motion for reconsideration on August 21, 2007. The respondent was thus
given sufficient time to study the motion and to enable him to meet the arguments interposed therein.
Indeed, the respondent was able to file his opposition thereto on September 20, 2007.
Notwithstanding that the respondent received a copy of the said motion for reconsideration four days
after the date set by the spouses Cabrera for the hearing thereof, his right to due process was not
impinged as he was afforded the chance to argue his position. Thus, the R TC erred in denying the
spouses Cabrera's motion for reconsideration based merely on their failure to comply with the three-
day notice requirement.
WHEREFORE, in consideration of the foregoing disquisitions, the instant petition is GRANTED.
The Decision dated October 21, 2009 and the Resolution dated March 26, 2012 of the Court of
Appeals in CA-G.R. SP No. 03392, are hereby REVERSED and SET ASIDE. The case is hereby
REMANDED to the Regional Trial Court of Mandaue City, Branch 56, to resolve the Motion for
Reconsideration filed by the spouses Cabrera on the merits within five (5) days from the finality of
this Decision.
SO ORDERED.
G.R. No. 141116. February 17, 2003
DAMASO SEBASTIAN and TOMASA CARDENAS, petitioners, vs. HON. HORACIO R. MORALES,
Secretary of the Department of Agrarian Reform, LEONILA SARENAS, JOSEPHINE
SARENAS-DAYRIT, EVANGELINE SARENAS, ESTRELITA SARENAS TAN, CECILIO
MARCOS SARENAS, MANUEL DEL SARENAS, DAISY RITA SARENAS, and JOY
SARENAS, respondents.
DECISION
QUISUMBING, J.:
On appeal by certiorari is the decision of the Court of Appeals dated March 9, 1999 in CA-
G.R. SP No. 51288, which dismissed petitioners special civil action for certiorari and prohibition on
the ground that petitioners pursued the wrong mode of appeal. Equally assailed is the resolution of
the appellate court dated December 10, 1999, which denied petitioners motion for reconsideration.
The facts, as gleaned from the record, are as follows:
Private respondents Leonila Sarenas, Josephine Sarenas-Dayrit, Evangeline Sarenas, Estrellita
Sarenas Tan, Cecilio Marcos Sarenas, Manuel Gil Sarenas, Daisy Rita Sarenas, and Joy Sarenas are
the heirs of the late Guillermo Sarenas, who died intestate on June 27, 1986. During his lifetime,
Guillermo owned the following agricultural landholdings, all located in Samon and Mayapyap Sur,
Cabanatuan City:
1. Agricultural lot with an area of 1.6947 hectares covered by TCT No. NT-8607
and tenanted by Juanito Gonzales;
2. Agricultural lot with an area of 3.1663 hectares covered by TCT No. NT-8608,
with petitioner Damaso Sebastian as the tenant; and
3. Agricultural lot with an area of 2.2723 hectares registered under TCT No. NT-
8609, with Perfecto Mana as the tenant.
In addition to the foregoing properties, Guillermo was also the registered owner of a parcel of
agricultural land located at San Ricardo, Talavera, Nueva Ecija, with a total area of 4.9993 hectares,
under TCT No. NT-143564. This property was, in turn, tenanted by Manuel Valentin and Wenceslao
Peneyra.
The tenants tilling the farm lots covered by TCT Nos. NT-8607, 8608, and 8609 had already
been issued emancipation patents pursuant to P.D. No. 27.
On July 14, 1993, private respondents filed an application with the Department of Agrarian
Reform (DAR) Regional Office in San Fernando, Pampanga, docketed as No. A-0303-1219-96, for
retention of over five hectares of the late Guillermos landholdings. Among the lots which private
respondents sought to retain under Section 6 of the Comprehensive Agrarian Reform Law (R.A. No.
6657) were those covered by TCT Nos. NT-8608 and 8609.
On June 6, 1997, the DAR Regional Office in San Fernando, Pampanga granted private
respondents application, thus:
WHEREFORE, premises considered, an ORDER is hereby issued:
1. GRANTING the Application for Retention of not more than five (5) hectares of
the Heirs of the late Guillermo Sarenas on their agricultural landholdings
covered by TCT Nos. NT-TCT-8608 and TCT-8609 situated at Samon and
Mayapyap Sur, Cabanatuan City, and which area must be compact and
contiguous and least prejudicial to the entire landholdings and majority of the
farmers therein;
2. DIRECTING the Heirs of the late Guillermo Sarenas o[r] their duly authorized
representative to coordinate with the MARO concerned for the segregation of
their retained area at their own expense and to submit a copy of the segregation
plan within thirty (30) days from approval thereof;
3. MAINTAINING the tenants in the retained areas as lessees thereof pursuant to
 RA 3844 as amended; and
4. ACQUIRING the other agricultural landholdings in excess of the retained area,
and to distribute the same to identified qualified farmer-beneficiaries pursuant
to RA 6657.
SO ORDERED.
On June 16, 1997, petitioner Sebastian moved for reconsideration of the foregoing order before
the DAR Regional Director, Region III, which docketed the case as A.R. Case No. LSD 1083-97.
The DAR Regional Director found that the order dated June 6, 1997 in Docket No. A-0303-1219-96
was contrary to law for violating Section 6 of RA No. 6657 and its Implementing Rules and
Regulations. He then issued a new order dated October 23, 1997, which instead allowed private
respondents to retain a parcel of land with an area of 4.9993 hectares, covered by TCT No. 143564,
located at San Ricardo, Talavera, Nueva Ecija.
Private respondents then appealed the order of October 23, 1997 to the DAR Secretary.
On June 18, 1998, the Secretary of Agrarian Reform set aside the order dated October 23, 1997,
and in lieu thereof issued a new one the decretal portion of which reads:
WHEREFORE, premises considered, the 23 October 1997 Order of RD Herrera is
hereby SET ASIDE and a new one issued:
1. GRANTING the heirs of Guillermo Sarenas the right to retain 2.8032 has.
of the landholding covered by TCT No. 8608 located at Cabanatuan City;
2. AFFIRMING the validity of the coverage of the landholdings covered by
TCT Nos. 8607, 8609 and 143564 located at Cabanatuan City and
Talavera, Nueva Ecija respectively;
3. MAINTAINING the tenants affected in the retained area as leaseholders
thereof pursuant to RA 3844;
4. DIRECTING the MARO/PARO to determine the qualification status of the
FB whose respective tillage is embraced under TCT No. 8608, subject of
the pending controversy with the DARAB; and
5. DIRECTING the Heirs of the late Guillermo Sarenas or their duly
authorized representative to coordinate with the MARO concerned for the
segregation of their retained area at their own expense and to submit a copy
of the segregation plan within 30 days from approval thereof.
SO ORDERED.
Petitioner Sebastian then filed a motion for reconsideration, but this motion was denied by the
DAR Secretary in an order dated January 26, 1999, the dispositive portion of which states:
WHEREFORE, premises considered, Order is hereby issued DENYING the instant
Motion for Reconsideration for utter lack of merit. Accordingly, as far as this Office is
concerned, this case is considered closed. Further, all persons, other than the recognized
tenant-farmers, are hereby ordered to cease and desist from further entering and
undertaking any activity on the subject landholdings.
SO ORDERED.
The Secretary also found that petitioners appeared to have waived their rights over the tenanted
land in favor of Clemente Bobares and Luzviminda Domingo-Villaroman, and had allowed
cultivation of the landholding by a certain Ricardo Dela Paz. He ruled that it was unlawful/illegal to
allow other persons than the tenant-farmers themselves to work on the land except if they are only
working as an aide of the latter otherwise, landowners shall have the recourse against the tenant-
farmers.
Consequently, on February 22, 1999, petitioners filed a special civil action for certiorari and
prohibition, with prayer for writ of preliminary mandatory injunction with the Court of Appeals,
docketed as CA-G.R. SP No. 51288.
On March 9, 1999, the Court of Appeals, without going into the merits of the case, dismissed
CA-G.R. SP No. 51288 after finding that petitioners pursued the wrong mode of appeal. It found that
the orders of the DAR Secretary sought to be reviewed were final orders for they finally disposed of
the agrarian case and left nothing more to be decided on the merits. Hence, the proper remedy
available to petitioners was a petition for review pursuant to Rule 43, Section 1 of the 1997 Rules of
Civil Procedure, and not a special civil action for certiorari under Rule 65. The Court of Appeals also
ruled that petitioners failed to attach a certified true copy or duplicate original of the assailed order of
June 18, 1998 as required by Rule 46, Section 3, and hence, it had no alternative but to dismiss the
action pursuant to said Section 3.
Petitioners then timely moved for reconsideration, but the appellate court in its resolution of
December 10, 1999 denied their motion.
Hence, the instant case anchored on the following sole assigned error:
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR (A) IN NOT
TREATING THE PETITION FILED BY PETITIONERS AS A PETITION FOR
REVIEW; AND (B) IN NOT RESOLVING THE CASE ON THE MERITS.
Petitioners submit that the sole issue before us is whether or not the dismissal by the Court of
Appeals of the petition in CA-G.R. SP No. 51288 is valid and proper.
Petitioners admit that there was error in the remedy resorted to before the Court of Appeals.
They insist, however, that a perusal of their initiatory pleading in CA-G.R. SP No. 51288 would show
that said pleading contained all the features and contents for a petition for review under Rule 43,
Section 6 of the 1997 Rules of Civil Procedure. Hence, the court a quo should have treated their
special civil action for certiorari and prohibition under Rule 65 as a petition for review under Rule 43,
since dismissals based on technicalities are frowned upon. Petitioners contend that procedural rules
are but a means to an end and should be liberally construed to effect substantial justice.
Private respondents, on the other hand, claim that the Court of Appeals did not commit any
reversible error in dismissing the petition in CA-G.R. SP No. 51288, for it simply applied the express
and categorical mandate of this Court that a petition shall be dismissed if the wrong remedy is availed
of. Private respondents argue that while it is true that the Rules of Court should be liberally
construed, it is also equally true that the Rules cannot be ignored, since strict observance thereof is
indispensable to the orderly and speedy discharge of judicial business.
Under Rule 1, Section 6 of the 1997 Rules of Civil Procedure, liberal construction of the rules
is the controlling principle to effect substantial justice. Thus, litigations should, as much as possible,
be decided on their merits and not on technicalities. This does not mean, however, that procedural
rules are to be ignored or disdained at will to suit the convenience of a party. Procedural law has its
own rationale in the orderly administration of justice, namely, to ensure the effective enforcement of
substantive rights by providing for a system that obviates arbitrariness, caprice, despotism, or
whimsicality in the settlement of disputes. Hence, it is a mistake to suppose that substantive law and
procedural law are contradictory to each other, or as often suggested, that enforcement of procedural
rules should never be permitted if it would result in prejudice to the substantive rights of the litigants.
Litigation is not a game of technicalities, but every case must be prosecuted in accordance with
the prescribed procedure so that issues may be properly presented and justly resolved. Hence, rules of
procedure must be faithfully followed except only when for persuasive reasons, they may be relaxed
to relieve a litigant of an injustice not commensurate with his failure to comply with the prescribed
procedure. Concomitant to a liberal application of the rules of procedure should be an effort on the
part of the party invoking liberality to explain his failure to abide by the rules.
In the instant case, petitioners failed to show any compelling reason for not resorting to the
proper remedy. Instead, we find from our perusal of their pleadings before the appellate court that
they stoutly and persistently insisted that the extraordinary remedy of certiorari was their correct
remedy. First, in instituting CA-G.R. SP No. 51288, petitioners categorically invoked the jurisdiction
of the Court of Appeals to have the questioned orders of the DAR Secretary declared null and void
for having been issued and promulgated with grave abuse of discretion . . . a mounting to lack of
jurisdiction. Note that it is precisely the office of an action for certiorari under Rule 65 to correct
errors of jurisdiction. Second, after the appellate court dismissed their petition on the ground that the
proper remedy was a petition for review, petitioners continued to insist in their motion for
reconsideration that under Section 54 of R.A. No. 6657, a petition for certiorari is both adequate and
proper in CA-G.R. SP No. 51288. It was only as an afterthought that they asked the appellate court to
treat their special civil action for certiorari as a petition for review, after a belated and grudging
admission that their reliance on Section 54 of R.A. No. 6657 was an honest mistake or excusable
error.
We agree with the appellate court that petitioners reliance on Section 54 of R.A. No. 6657 is
not merely a mistake in the designation of the mode of appeal, but clearly an erroneous appeal from
the assailed Orders. For in relying solely on Section 54, petitioners patently ignored or conveniently
overlooked Section 60 of R.A. No. 6657, the pertinent portion of which provides that:
An appeal from the decision of the Court of Appeals, or from any order, ruling or
decision of the DAR, as the case may be, shall be by a petition for review with the
Supreme Court, within a non-extendible period of fifteen (15) days from receipt of a copy
of said decision. (Emphasis supplied.)
Section 60 of R.A. No. 6657 should be read in relation to R.A. No. 7902 expanding the
appellate jurisdiction of the Court of Appeals to include:
Exclusive appellate jurisdiction over all final judgments, decisions, resolutions,
orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commissionsexcept those falling within the appellate jurisdiction of the
Supreme Court in accordance with the Constitution, the Labor Code of the Philippines
under Presidential Decree No. 442, as amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of
Section 17 of the Judiciary Act of 1948.
With the enactment of R.A. No. 7902, this Court issued Circular 1-95 dated May 16, 1995
governing appeals from all quasi-judicial bodies to the Court of Appeals by petition for review,
regardless of the nature of the question raised. Said circular was incorporated in Rule 43 of the 1997
Rules of Civil Procedure.
Section 61 of R.A. No. 6657 clearly mandates that judicial review of DAR orders or decisions
are governed by the Rules of Court. The Rules direct that it is Rule 43 that governs the procedure for
judicial review of decisions, orders, or resolutions of the DAR Secretary. By pursuing a special civil
action for certiorari under Rule 65 rather than the mandatory petition for review under Rule 43,
petitioners opted for the wrong mode of appeal. Pursuant to the fourth paragraph of Supreme Court
Circular No. 2-90, an appeal taken to the Supreme Court or the Court of Appeals by the wrong or
inappropriate mode shall be dismissed. Therefore, we hold that the Court of Appeals committed no
reversible error in dismissing CA-G.R. SP No. 51288 for failure of petitioners to pursue the proper
mode of appeal.
But should the appellate court have treated the petition for the extraordinary writs of certiorari
and prohibition in CA-G.R. SP No. 51288 as a petition for review as petitioners insist?
That a petition for certiorari under Rule 65 should pro forma satisfy the requirements for the
contents of a petition for review under Rule 43 does not necessarily mean that one is the same as the
other. Or that one may be treated as the other, for that matter. A petition for review is a mode of
appeal, while a special civil action for certiorari is an extraordinary process for the correction of
errors of jurisdiction. It is basic remedial law that the two remedies are distinct, mutually exclusive,
and antithetical. The extraordinary remedy of certiorari is proper if the tribunal, board, or officer
exercising judicial or quasi-judicial functions acted without or in grave abuse of discretion amounting
to lack or excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy in
law. A petition for review, on the other hand, seeks to correct errors of judgment committed by the
court, tribunal, or officer. In the instant case, petitioners failed to show any grave abuse of discretion
amounting to want of jurisdiction on the part of the DAR Secretary. When a court, tribunal, or officer
has jurisdiction over the person and the subject matter of the dispute, the decision on all other
questions arising in the case is an exercise of that jurisdiction. Consequently, all errors committed in
the exercise of said jurisdiction are merely errors of judgment. Under prevailing procedural rules and
jurisprudence, errors of judgment are not proper subjects of a special civil action for certiorari. For if
every error committed by the trial court or quasi-judicial agency were to be the proper subject of
review by certiorari, then trial would never end and the dockets of appellate courts would be clogged
beyond measure. Hence, no error may be attributed to the appellate court in refusing to grant
petitioners request that their petition for certiorari under Rule 65 be treated as a petition for review
under Rule 43.
As a final salvo, petitioners urge us to review the factual findings of the DAR Secretary. Settled
is the rule that factual questions are not the proper subject of an appeal by certiorari, as a petition for
review under Rule 45 is limited only to questions of law. Moreover, it is doctrine that the errors
which may be reviewed by this Court in a petition for certiorari are those of the Court of Appeals,
and not directly those of the trial court or the quasi-judicial agency, tribunal, or officer which
rendered the decision in the first instance. Finally, it is settled that factual findings of administrative
agencies are generally accorded respect and even finality by this Court, if such findings are supported
by substantial evidence, a situation that obtains in this case. The factual findings of the Secretary of
Agrarian Reform who, by reason of his official position, has acquired expertise in specific matters
within his jurisdiction, deserve full respect and, without justifiable reason, ought not to be altered,
modified or reversed.
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals
in CA-G.R. SP No. 51288 dated March 4, 1999, as well as the resolution of the appellate court dated
December 10, 1999, is AFFIRMED. No pronouncement as to costs.
SO ORDERED.

G.R. No. 173946 June 19, 2013
BOSTON EQUITY RESOURCES, INC., Petitioner,
vs.
COURT OF APPEALS AND LOLITA G. TOLEDO, Respondents.
DECISION
PEREZ, J.:
Before the Court is a Petition for Review on Certiorari seeking to reverse and set aside: (1) the
Decision,1 dated 28 February 2006 and (2) the Resolution,2 dated 1 August 2006 of the Court of
Appeals in CA-G.R. SP No. 88586. The challenged decision granted herein respondent's petition for
certiorari upon a finding that the trial court committed grave abuse of discretion in denying
respondent's motion to dismiss the complaint against her.3 Based on this finding, the Court of
Appeals reversed and set aside the Orders, dated 8 November 2004 4 and 22 December 2004,5
respectively, of the Regional Trial Court (RTC) of Manila, Branch 24.
The Facts
On 24 December 1997, petitioner filed a complaint for sum of money with a prayer for the issuance
of a writ of preliminary attachment against the spouses Manuel and Lolita Toledo. 6 Herein
respondent filed an Answer dated 19 March 1998 but on 7 May 1998, she filed a Motion for Leave to
Admit Amended Answer7 in which she alleged, among others, that her husband and co-defendant,
Manuel Toledo (Manuel), is already dead.8 The death certificate9 of Manuel states "13 July 1995" as
the date of death. As a result, petitioner filed a motion, dated 5 August 1999, to require respondent to
disclose the heirs of Manuel.10 In compliance with the verbal order of the court during the 11 October
1999 hearing of the case, respondent submitted the required names and addresses of the heirs. 11
Petitioner then filed a Motion for Substitution,12 dated 18 January 2000, praying that Manuel be
substituted by his children as party-defendants. It appears that this motion was granted by the trial
court in an Order dated 9 October 2000.13
Pre-trial thereafter ensued and on 18 July 2001, the trial court issued its pre-trial order containing,
among others, the dates of hearing of the case.14
The trial of the case then proceeded. Herein petitioner, as plaintiff, presented its evidence and its
exhibits were thereafter admitted.
On 26 May 2004, the reception of evidence for herein respondent was cancelled upon agreement of
the parties. On 24 September 2004, counsel for herein respondent was given a period of fifteen days
within which to file a demurrer to evidence.15 However, on 7 October 2004, respondent instead filed
a motion to dismiss the complaint, citing the following as grounds: (1) that the complaint failed to
implead an indispensable party or a real party in interest; hence, the case must be dismissed for
failure to state a cause of action; (2) that the trial court did not acquire jurisdiction over the person of
Manuel pursuant to Section 5, Rule 86 of the Revised Rules of Court; (3) that the trial court erred in
ordering the substitution of the deceased Manuel by his heirs; and (4) that the court must also dismiss
the case against Lolita Toledo in accordance with Section 6, Rule 86 of the Rules of Court. 16
The trial court, in an Order dated 8 November 2004, denied the motion to dismiss for having been
filed out of time, citing Section 1, Rule 16 of the 1997 Rules of Court which states that: "Within the
time for but before filing the answer to the complaint or pleading asserting a claim, a motion to
dismiss may be made x x x."17 Respondent’s motion for reconsideration of the order of denial was
likewise denied on the ground that "defendants’ attack on the jurisdiction of this Court is now barred
by estoppel by laches" since respondent failed to raise the issue despite several chances to do so. 18
Aggrieved, respondent filed a petition for certiorari with the Court of Appeals alleging that the trial
court seriously erred and gravely abused its discretion in denying her motion to dismiss despite
discovery, during the trial of the case, of evidence that would constitute a ground for dismissal of the
case.19
The Court of Appeals granted the petition based on the following grounds:
It is elementary that courts acquire jurisdiction over the person of the defendant x x x only when the
latter voluntarily appeared or submitted to the court or by coercive process issued by the court to him,
x x x. In this case, it is undisputed that when petitioner Boston filed the complaint on December 24,
1997, defendant Manuel S. Toledo was already dead, x x x. Such being the case, the court a quo
could not have acquired jurisdiction over the person of defendant Manuel S. Toledo.
x x x the court a quo’s denial of respondent’s motion to dismiss was based on its finding that
respondent’s attack on the jurisdiction of the court was already barred by laches as respondent failed
to raise the said ground in its [sic] amended answer and during the pre-trial, despite her active
participation in the proceedings.
However, x x x it is well-settled that issue on jurisdiction may be raised at any stage of the
proceeding, even for the first time on appeal. By timely raising the issue on jurisdiction in her motion
to dismiss x x x respondent is not estopped from raising the question on jurisdiction.
Moreover, when issue on jurisdiction was raised by respondent, the court a quo had not yet decided
the case, hence, there is no basis for the court a quo to invoke estoppel to justify its denial of the
motion for reconsideration;
It should be stressed that when the complaint was filed, defendant Manuel S. Toledo was already
dead. The complaint should have impleaded the estate of Manuel S. Toledo as defendant, not only the
wife, considering that the estate of Manuel S. Toledo is an indispensable party, which stands to be
benefited or be injured in the outcome of the case. x x x
xxxx
Respondent’s motion to dismiss the complaint should have been granted by public respondent judge
as the same was in order. Considering that the obligation of Manuel S. Toledo is solidary with
another debtor, x x x, the claim x x x should be filed against the estate of Manuel S. Toledo, in
conformity with the provision of Section 6, Rule 86 of the Rules of Court, x x x. 20
The Court of Appeals denied petitioner’s motion for reconsideration. Hence, this petition.
The Issues
Petitioner claims that the Court of Appeals erred in not holding that:
1. Respondent is already estopped from questioning the trial court’s jurisdiction;
2. Petitioner never failed to implead an indispensable party as the estate of Manuel is not an
indispensable party;
3. The inclusion of Manuel as party-defendant is a mere misjoinder of party not warranting
the dismissal of the case before the lower court; and
4. Since the estate of Manuel is not an indispensable party, it is not necessary that petitioner
file its claim against the estate of Manuel.
In essence, what is at issue here is the correctness of the trial court’s orders denying respondent’s
motion to dismiss.
The Ruling of the Court
We find merit in the petition.
Motion to dismiss filed out of time
To begin with, the Court of Appeals erred in granting the writ of certiorari in favor of respondent.
Well settled is the rule that the special civil action for certiorari is not the proper remedy to assail the
denial by the trial court of a motion to dismiss. The order of the trial court denying a motion to
dismiss is merely interlocutory, as it neither terminates nor finally disposes of a case and still leaves
something to be done by the court before a case is finally decided on the merits. 21 Therefore, "the
proper remedy in such a case is to appeal after a decision has been rendered."22
As the Supreme Court held in Indiana Aerospace University v. Comm. on Higher Education:23
A writ of certiorari is not intended to correct every controversial interlocutory ruling; it is resorted
only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of
jurisdiction. Its function is limited to keeping an inferior court within its jurisdiction and to relieve
persons from arbitrary acts – acts which courts or judges have no power or authority in law to
perform. It is not designed to correct erroneous findings and conclusions made by the courts.
(Emphasis supplied)
Even assuming that certiorari is the proper remedy, the trial court did not commit grave abuse of
discretion in denying respondent’s motion to dismiss. It, in fact, acted correctly when it issued the
questioned orders as respondent’s motion to dismiss was filed SIX YEARS AND FIVE MONTHS
AFTER SHE FILED HER AMENDED ANSWER. This circumstance alone already warranted the
outright dismissal of the motion for having been filed in clear contravention of the express mandate
of Section 1, Rule 16, of the Revised Rules of Court. Under this provision, a motion to dismiss shall
be filed within the time for but before the filing of an answer to the complaint or pleading asserting a
claim.24
More importantly, respondent’s motion to dismiss was filed after petitioner has completed the
presentation of its evidence in the trial court, giving credence to petitioner’s and the trial court’s
conclusion that the filing of the motion to dismiss was a mere ploy on the part of respondent to delay
the prompt resolution of the case against her.
Also worth mentioning is the fact that respondent’s motion to dismiss under consideration herein is
not the first motion to dismiss she filed in the trial court. It appears that she had filed an earlier
motion to dismiss26 on the sole ground of the unenforceability of petitioner’s claim under the Statute
of Frauds, which motion was denied by the trial court. More telling is the following narration of the
trial court in its Order denying respondent’s motion for reconsideration of the denial of her motion to
dismiss:
As can be gleaned from the records, with the admission of plaintiff’s exhibits, reception of
defendants’ evidence was set on March 31, and April 23, 2004 x x x . On motion of the defendants,
the hearing on March 31, 2004 was cancelled.
On April 14, 2004, defendants sought the issuance of subpoena ad testificandum and duces tecum to
one Gina M. Madulid, to appear and testify for the defendants on April 23, 2004. Reception of
defendants’ evidence was again deferred to May 26, June 2 and June 30, 2004, x x x.
On May 13, 2004, defendants sought again the issuance of a subpoena duces tecum and ad
testificandum to the said Gina Madulid. On May 26, 2004, reception of defendants [sic] evidence was
cancelled upon the agreement of the parties. On July 28, 2004, in the absence of defendants’ witness,
hearing was reset to September 24 and October 8, 2004 x x x.
On September 24, 2004, counsel for defendants was given a period of fifteen (15) days to file a
demurrer to evidence. On October 7, 2004, defendants filed instead a Motion to Dismiss x x x. 27
Respondent’s act of filing multiple motions, such as the first and earlier motion to dismiss and then
the motion to dismiss at issue here, as well as several motions for postponement, lends credibility to
the position taken by petitioner, which is shared by the trial court, that respondent is
deliberately impeding the early disposition of this case. The filing of the second motion to dismiss
was, therefore, "not only improper but also dilatory."28 Thus, the trial court, "far from deviating or
straying off course from established jurisprudence on the matter, x x x had in fact faithfully observed
the law and legal precedents in this case."29 The Court of Appeals, therefore, erred not only in
entertaining respondent’s petition for certiorari, it likewise erred in ruling that the trial court
committed grave abuse of discretion when it denied respondent’s motion to dismiss.
On whether or not respondent is estopped from
questioning the jurisdiction of the trial court
At the outset, it must be here stated that, as the succeeding discussions will demonstrate, jurisdiction
over the person of Manuel should not be an issue in this case. A protracted discourse on jurisdiction
is, nevertheless, demanded by the fact that jurisdiction has been raised as an issue from the lower
court, to the Court of Appeals and, finally, before this Court. For the sake of clarity, and in order to
finally settle the controversy and fully dispose of all the issues in this case, it was deemed imperative
to resolve the issue of jurisdiction.
1. Aspects of Jurisdiction
Petitioner calls attention to the fact that respondent’s motion to dismiss questioning the trial court’s
jurisdiction was filed more than six years after her amended answer was filed. According to
petitioner, respondent had several opportunities, at various stages of the proceedings, to assail the
trial court’s jurisdiction but never did so for six straight years. Citing the doctrine laid down in the
case of Tijam, et al. v. Sibonghanoy, et al.30 petitioner claimed that respondent’s failure to raise the
question of jurisdiction at an earlier stage bars her from later questioning it, especially since she
actively participated in the proceedings conducted by the trial court.
Petitioner’s argument is misplaced, in that, it failed to consider that the concept of jurisdiction has
several aspects, namely: (1) jurisdiction over the subject matter; (2) jurisdiction over the parties; (3)
jurisdiction over the issues of the case; and (4) in cases involving property, jurisdiction over the res or
the thing which is the subject of the litigation.31
The aspect of jurisdiction which may be barred from being assailed as a result of estoppel by laches is
jurisdiction over the subject matter. Thus, in Tijam, the case relied upon by petitioner, the issue
involved was the authority of the then Court of First Instance to hear a case for the collection of a
sum of money in the amount of ₱1,908.00 which amount was, at that time, within the exclusive
original jurisdiction of the municipal courts.
In subsequent cases citing the ruling of the Court in Tijam, what was likewise at issue was the
jurisdiction of the trial court over the subject matter of the case. Accordingly, in Spouses Gonzaga v.
Court of Appeals,32 the issue for consideration was the authority of the regional trial court to hear and
decide an action for reformation of contract and damages involving a subdivision lot, it being argued
therein that jurisdiction is vested in the Housing and Land Use Regulatory Board pursuant to PD 957
(The Subdivision and Condominium Buyers Protective Decree). In Lee v. Presiding Judge, MTC,
Legaspi City,33 petitioners argued that the respondent municipal trial court had no jurisdiction over
the complaint for ejectment because the issue of ownership was raised in the pleadings. Finally, in
People v. Casuga,34 accused-appellant claimed that the crime of grave slander, of which she was
charged, falls within the concurrent jurisdiction of municipal courts or city courts and the then courts
of first instance, and that the judgment of the court of first instance, to which she had appealed the
municipal court's conviction, should be deemed null and void for want of jurisdiction as her appeal
should have been filed with the Court of Appeals or the Supreme Court.
In all of these cases, the Supreme Court barred the attack on the jurisdiction of the respective courts
concerned over the subject matter of the case based on estoppel by laches, declaring that parties
cannot be allowed to belatedly adopt an inconsistent posture by attacking the jurisdiction of a court to
which they submitted their cause voluntarily.35
Here, what respondent was questioning in her motion to dismiss before the trial court was that court’s
jurisdiction over the person of defendant Manuel. Thus, the principle of estoppel by laches finds no
application in this case. Instead, the principles relating to jurisdiction over the person of the parties
are pertinent herein.
The Rules of Court provide:
RULE 9
EFFECT OF FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded. – Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings
or the evidence on record that the court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall dismiss the claim.
RULE 15
MOTIONS
Sec. 8. Omnibus motion. – Subject to the provisions of Section 1 of Rule 9, a motion attacking a
pleading, order, judgment, or proceeding shall include all objections then available, and all objections
not so included shall be deemed waived.
Based on the foregoing provisions, the "objection on jurisdictional grounds which is not waived even
if not alleged in a motion to dismiss or the answer is lack of jurisdiction over the subject matter. x x x
Lack of jurisdiction over the subject matter can always be raised anytime, even for the first time on
appeal, since jurisdictional issues cannot be waived x x x subject, however, to the principle of
estoppel by laches."36
Since the defense of lack of jurisdiction over the person of a party to a case is not one of those
defenses which are not deemed waived under Section 1 of Rule 9, such defense must be invoked
when an answer or a motion to dismiss is filed in order to prevent a waiver of the defense.37 If the
objection is not raised either in a motion to dismiss or in the answer, the objection to the jurisdiction
over the person of the plaintiff or the defendant is deemed waived by virtue of the first sentence of
the above-quoted Section 1 of Rule 9 of the Rules of Court. 38
The Court of Appeals, therefore, erred when it made a sweeping pronouncement in its questioned
decision, stating that "issue on jurisdiction may be raised at any stage of the proceeding, even for the
first time on appeal" and that, therefore, respondent timely raised the issue in her motion to dismiss
and is, consequently, not estopped from raising the question of jurisdiction. As the question of
jurisdiction involved here is that over the person of the defendant Manuel, the same is deemed
waived if not raised in the answer or a motion to dismiss. In any case, respondent cannot claim the
defense since "lack of jurisdiction over the person, being subject to waiver, is a personal defense
which can only be asserted by the party who can thereby waive it by silence."39
2. Jurisdiction over the person of a defendant is acquired through a valid service of summons; trial
court did not acquire jurisdiction over the person of Manuel Toledo
In the first place, jurisdiction over the person of Manuel was never acquired by the trial court. A
defendant is informed of a case against him when he receives summons. "Summons is a writ by
which the defendant is notified of the action brought against him. Service of such writ is the means
by which the court acquires jurisdiction over his person."40
In the case at bar, the trial court did not acquire jurisdiction over the person of Manuel since there
was no valid service of summons upon him, precisely because he was already dead even before the
complaint against him and his wife was filed in the trial court. The issues presented in this case are
similar to those in the case of Sarsaba v. Vda. de Te.41
In Sarsaba, the NLRC rendered a decision declaring that Patricio Sereno was illegally dismissed from
employment and ordering the payment of his monetary claims. To satisfy the claim, a truck in the
possession of Sereno’s employer was levied upon by a sheriff of the NLRC, accompanied by Sereno
and his lawyer, Rogelio Sarsaba, the petitioner in that case. A complaint for recovery of motor
vehicle and damages, with prayer for the delivery of the truck pendente lite was eventually filed
against Sarsaba, Sereno, the NLRC sheriff and the NLRC by the registered owner of the truck. After
his motion to dismiss was denied by the trial court, petitioner Sarsaba filed his answer. Later on,
however, he filed an omnibus motion to dismiss citing, as one of the grounds, lack of jurisdiction
over one of the principal defendants, in view of the fact that Sereno was already dead when the
complaint for recovery of possession was filed.
Although the factual milieu of the present case is not exactly similar to that of Sarsaba, one of the
issues submitted for resolution in both cases is similar: whether or not a case, where one of the named
defendants was already dead at the time of its filing, should be dismissed so that the claim may be
pursued instead in the proceedings for the settlement of the estate of the deceased defendant. The
petitioner in the Sarsaba Case claimed, as did respondent herein, that since one of the defendants died
before summons was served on him, the trial court should have dismissed the complaint against all
the defendants and the claim should be filed against the estate of the deceased defendant. The
petitioner in Sarsaba, therefore, prayed that the complaint be dismissed, not only against Sereno, but
as to all the defendants, considering that the RTC did not acquire jurisdiction over the person of
Sereno.42 This is exactly the same prayer made by respondent herein in her motion to dismiss.
The Court, in the Sarsaba Case, resolved the issue in this wise:
x x x We cannot countenance petitioner’s argument that the complaint against the other defendants
should have been dismissed, considering that the RTC never acquired jurisdiction over the person of
Sereno. The court’s failure to acquire jurisdiction over one’s person is a defense which is personal to
the person claiming it. Obviously, it is now impossible for Sereno to invoke the same in view of his
death. Neither can petitioner invoke such ground, on behalf of Sereno, so as to reap the benefit of
having the case dismissed against all of the defendants. Failure to serve summons on Sereno’s person
will not be a cause for the dismissal of the complaint against the other defendants, considering that
they have been served with copies of the summons and complaints and have long submitted their
respective responsive pleadings. In fact, the other defendants in the complaint were given the chance
to raise all possible defenses and objections personal to them in their respective motions to dismiss
and their subsequent answers.43 (Emphasis supplied.)
Hence, the Supreme Court affirmed the dismissal by the trial court of the complaint against Sereno
only.
Based on the foregoing pronouncements, there is no basis for dismissing the complaint against
respondent herein. Thus, as already emphasized above, the trial court correctly denied her motion to
dismiss.
On whether or not the estate of Manuel
Toledo is an indispensable party
Rule 3, Section 7 of the 1997 Rules of Court states:
SEC. 7. Compulsory joinder of indispensable parties. – Parties-in-interest without whom no final
determination can be had of an action shall be joined either as plaintiffs or defendants.
An indispensable party is one who has such an interest in the controversy or subject matter of a case
that a final adjudication cannot be made in his or her absence, without injuring or affecting that
interest. He or she is a party who has not only an interest in the subject matter of the controversy, but
"an interest of such nature that a final decree cannot be made without affecting that interest or leaving
the controversy in such a condition that its final determination may be wholly inconsistent with
equity and good conscience. It has also been considered that an indispensable party is a person in
whose absence there cannot be a determination between the parties already before the court which is
effective, complete or equitable." Further, an indispensable party is one who must be included in an
action before it may properly proceed.44
On the other hand, a "person is not an indispensable party if his interest in the controversy or subject
matter is separable from the interest of the other parties, so that it will not necessarily be directly or
injuriously affected by a decree which does complete justice between them. Also, a person is not an
indispensable party if his presence would merely permit complete relief between him or her and those
already parties to the action, or if he or she has no interest in the subject matter of the action." It is not
a sufficient reason to declare a person to be an indispensable party simply because his or her presence
will avoid multiple litigations.45
Applying the foregoing pronouncements to the case at bar, it is clear that the estate of Manuel is not
an indispensable party to the collection case, for the simple reason that the obligation of Manuel and
his wife, respondent herein, is solidary.
The contract between petitioner, on the one hand and respondent and respondent’s husband, on the
other, states:
FOR VALUE RECEIVED, I/We jointly and severally46 (in solemn) promise to pay BOSTON
EQUITY RESOURCES, INC. x x x the sum of PESOS: [ONE MILLION FOUR HUNDRED
(₱1,400,000.00)] x x x.47
The provisions and stipulations of the contract were then followed by the respective signatures of
respondent as "MAKER" and her husband as "CO-MAKER."48 Thus, pursuant to Article 1216 of the
Civil Code, petitioner may collect the entire amount of the obligation from respondent only. The
aforementioned provision states: "The creditor may proceed against any one of the solidary debtors or
some or all of them simultaneously. The demand made against one of them shall not be an obstacle to
those which may subsequently be directed against the others, so long as the debt has not been fully
collected."
In other words, the collection case can proceed and the demands of petitioner can be satisfied by
respondent only, even without impleading the estate of Manuel. Consequently, the estate of Manuel is
not an indispensable party to petitioner’s complaint for sum of money.
However, the Court of Appeals, agreeing with the contention of respondent, held that the claim of
petitioner should have been filed against the estate of Manuel in accordance with Sections 5 and 6 of
Rule 86 of the Rules of Court. The aforementioned provisions provide:
SEC. 5. Claims which must be filed under the notice. If not filed, barred; exceptions. All claims for
money against the decedent, arising from contract, express or implied, whether the same be due, not
due, or contingent, all claims for funeral expenses and judgment for money against the decedent,
must be filed within the time limited in the notice; otherwise, they are barred forever, except that they
may be set forth as counterclaims in any action that the executor or administrator may bring against
the claimants. x x x.
SEC. 6. Solidary obligation of decedent. Where the obligation of the decedent is solidary with
another debtor, the claim shall be filed against the decedent as if he were the only debtor, without
prejudice to the right of the estate to recover contribution from the other debtor. x x x.
The Court of Appeals erred in its interpretation of the above-quoted provisions.
In construing Section 6, Rule 87 of the old Rules of Court, the precursor of Section 6, Rule 86 of the
Revised Rules of Court, which latter provision has been retained in the present Rules of Court
without any revisions, the Supreme Court, in the case of Manila Surety & Fidelity Co., Inc. v.
Villarama, et. al.,49 held:50
Construing Section 698 of the Code of Civil Procedure from whence [Section 6, Rule 87] was taken,
this Court held that where two persons are bound in solidum for the same debt and one of them dies,
the whole indebtedness can be proved against the estate of the latter, the decedent’s liability being
absolute and primary; x x x. It is evident from the foregoing that Section 6 of Rule 87 provides the
procedure should the creditor desire to go against the deceased debtor, but there is certainly nothing
in the said provision making compliance with such procedure a condition precedent before an
ordinary action against the surviving solidary debtors, should the creditor choose to demand payment
from the latter, could be entertained to the extent that failure to observe the same would deprive the
court jurisdiction to take cognizance of the action against the surviving debtors. Upon the other hand,
the Civil Code expressly allows the creditor to proceed against any one of the solidary debtors or
some or all of them simultaneously. There is, therefore, nothing improper in the creditor’s filing of an
action against the surviving solidary debtors alone, instead of instituting a proceeding for the
settlement of the estate of the deceased debtor wherein his claim could be filed.
The foregoing ruling was reiterated and expounded in the later case of Philippine National Bank v.
Asuncion51 where the Supreme Court pronounced:
A cursory perusal of Section 6, Rule 86 of the Revised Rules of Court reveals that nothing therein
prevents a creditor from proceeding against the surviving solidary debtors. Said provision merely sets
up the procedure in enforcing collection in case a creditor chooses to pursue his claim against the
estate of the deceased solidary debtor. The rule has been set forth that a creditor (in a solidary
obligation) has the option whether to file or not to file a claim against the estate of the solidary
debtor. x x x
xxxx
It is crystal clear that Article 1216 of the New Civil Code is the applicable provision in this matter.
Said provision gives the creditor the right to "proceed against anyone of the solidary debtors or some
or all of them simultaneously." The choice is undoubtedly left to the solidary creditor to determine
against whom he will enforce collection. In case of the death of one of the solidary debtors, he (the
creditor) may, if he so chooses, proceed against the surviving solidary debtors without necessity of
filing a claim in the estate of the deceased debtors. It is not mandatory for him to have the case
dismissed as against the surviving debtors and file its claim against the estate of the deceased solidary
debtor, x x x. For to require the creditor to proceed against the estate, making it a condition precedent
for any collection action against the surviving debtors to prosper, would deprive him of his
substantive rightsprovided by Article 1216 of the New Civil Code. (Emphasis supplied.)
As correctly argued by petitioner, if Section 6, Rule 86 of the Revised Rules of Court were applied
literally, Article 1216 of the New Civil Code would, in effect, be repealed since under the Rules of
Court, petitioner has no choice but to proceed against the estate of [the deceased debtor] only.
Obviously, this provision diminishes the [creditor’s] right under the New Civil Code to proceed
against any one, some or all of the solidary debtors. Such a construction is not sanctioned by
principle, which is too well settled to require citation, that a substantive law cannot be amended by a
procedural rule. Otherwise stated, Section 6, Rule 86 of the Revised Rules of Court cannot be made
to prevail over Article 1216 of the New Civil Code, the former being merely procedural, while the
latter, substantive.
Based on the foregoing, the estate of Manuel is not an indispensable party and the case can proceed
as against respondent only. That petitioner opted to collect from respondent and not from the estate of
Manuel is evidenced by its opposition to respondent’s motion to dismiss asserting that the case, as
against her, should be dismissed so that petitioner can proceed against the estate of Manuel.
On whether or not the inclusion of Manuel as
party defendant is a misjoinder of party
Section 11 of Rule 3 of the Rules of Court states that "neither misjoinder nor non-joinder of parties is
ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of
any party or on its own initiative at any stage of the action and on such terms as are just. Any claim
against a misjoined party may be severed and proceeded with separately."
Based on the last sentence of the afore-quoted provision of law, a misjoined party must have the
capacity to sue or be sued in the event that the claim by or against the misjoined party is pursued in a
separate case. In this case, therefore, the inclusion of Manuel in the complaint cannot be considered a
misjoinder, as in fact, the action would have proceeded against him had he been alive at the time the
collection case was filed by petitioner. This being the case, the remedy provided by Section 11 of
Rule 3 does not obtain here. The name of Manuel as party-defendant cannot simply be dropped from
the case. Instead, the procedure taken by the Court in Sarsaba v. Vda. de Te, 52 whose facts, as
mentioned earlier, resemble those of this case, should be followed herein. There, the Supreme Court
agreed with the trial court when it resolved the issue of jurisdiction over the person of the deceased
Sereno in this wise:
As correctly pointed by defendants, the Honorable Court has not acquired jurisdiction over the person
of Patricio Sereno since there was indeed no valid service of summons insofar as Patricio Sereno is
concerned. Patricio Sereno died before the summons, together with a copy of the complaint and its
annexes, could be served upon him.
However, the failure to effect service of summons unto Patricio Sereno, one of the defendants herein,
does not render the action DISMISSIBLE, considering that the three (3) other defendants, x x x, were
validly served with summons and the case with respect to the answering defendants may still proceed
independently. Be it recalled that the three (3) answering defendants have previously filed a Motion
to Dismiss the Complaint which was denied by the Court.
Hence, only the case against Patricio Sereno will be DISMISSED and the same may be filed as a
claim against the estate of Patricio Sereno, but the case with respect to the three (3) other accused
[sic] will proceed. (Emphasis supplied.)53
As a result, the case, as against Manuel, must be dismissed.
In addition, the dismissal of the case against Manuel is further warranted by Section 1 of Rule 3 of
the Rules of Court, which states that: only natural or juridical persons, or entities authorized by law
may be parties in a civil action." Applying this provision of law, the Court, in the case of Ventura v.
Militante,54 held:
Parties may be either plaintiffs or defendants. x x x. In order to maintain an action in a court of
justice, the plaintiff must have an actual legal existence, that is, he, she or it must be a person in law
and possessed of a legal entity as either a natural or an artificial person, and no suit can be lawfully
prosecuted save in the name of such a person.
The rule is no different as regards party defendants. It is incumbent upon a plaintiff, when he
institutes a judicial proceeding, to name the proper party defendant to his cause of action. In a suit or
proceeding in personam of an adversary character, the court can acquire no jurisdiction for the
purpose of trial or judgment until a party defendant who actually or legally exists and is legally
capable of being sued, is brought before it. It has even been held that the question of the legal
personality of a party defendant is a question of substance going to the jurisdiction of the court and
not one of procedure.
The original complaint of petitioner named the "estate of Carlos Ngo as represented by surviving
spouse Ms. Sulpicia Ventura" as the defendant.1âwphi1 Petitioner moved to dismiss the same on the
ground that the defendant as named in the complaint had no legal personality. We agree.
x x x. Considering that capacity to be sued is a correlative of the capacity to sue, to the same extent, a
decedent does not have the capacity to be sued and may not be named a party defendant in a court
action. (Emphases supplied.)
Indeed, where the defendant is neither a natural nor a juridical person or an entity authorized by law,
the complaint may be dismissed on the ground that the pleading asserting the claim states no cause of
action or for failure to state a cause of action pursuant to Section 1(g) of Rule 16 of the Rules of
Court, because a complaint cannot possibly state a cause of action against one who cannot be a party
to a civil action.55
Since the proper course of action against the wrongful inclusion of Manuel as party-defendant is the
dismissal of the case as against him, thus did the trial court err when it ordered the substitution of
Manuel by his heirs. Substitution is proper only where the party to be substituted died during the
pendency of the case, as expressly provided for by Section 16, Rule 3 of the Rules of Court, which
states:
Death of party;duty of counsel. – Whenever a party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address of his legal representative or
representatives. x x x
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator x x x.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice. (Emphasis supplied.)
Here, since Manuel was already dead at the time of the filing of the complaint, the court never
acquired jurisdiction over his person and, in effect, there was no party to be substituted.
WHEREFORE, the petition is GRANTED. The Decision dated 28 February 2006 and the Resolution
dated 1 August 2006 of the Court of Appeals in CA-G.R. SP No. 88586 are REVERSED and SET
ASIDE. The Orders of the Regional Trial Court dated 8 November 2004 and 22 December 2004,
respectively, in Civil Case No. 97-86672, are REINSTATED. The Regional Trial Court, Branch 24,
Manila is hereby DIRECTED to proceed with the trial of Civil Case No. 97-86672 against respondent
Lolita G. Toledo only, in accordance with the above pronouncements of the Court, and to decide the
case with dispatch.
SO ORDERED.
G.R. No. 140746 March 16, 2005
PANTRANCO NORTH EXPRESS, INC., and ALEXANDER BUNCAN, Petitioner,
vs.
STANDARD INSURANCE COMPANY, INC., and MARTINA GICALE, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari assailing the Decision1 dated July 23 1999 and
Resolution2 dated November 4, 1999 of the Court of Appeals in CA-G.R. CV No. 38453, entitled
"Standard Insurance Company, Inc., and Martina Gicale vs. PANTRANCO North Express, Inc., and
Alexander Buncan."
In the afternoon of October 28, 1984, Crispin Gicale was driving the passenger jeepney owned by his
mother Martina Gicale, respondent herein. It was then raining. While driving north bound along the
National Highway in Talavera, Nueva Ecija, a passenger bus, owned by Pantranco North Express,
Inc., petitioner, driven by Alexander Buncan, also a petitioner, was trailing behind. When the two
vehicles were negotiating a curve along the highway, the passenger bus overtook the jeepney. In so
doing, the passenger bus hit the left rear side of the jeepney and sped away.
Crispin reported the incident to the Talavera Police Station and respondent Standard Insurance Co.,
Inc. (Standard), insurer of the jeepney. The total cost of the repair was P21,415.00, but respondent
Standard paid only P8,000.00. Martina Gicale shouldered the balance of P13,415.00.
Thereafter, Standard and Martina, respondents, demanded reimbursement from petitioners Pantranco
and its driver Alexander Buncan, but they refused. This prompted respondents to file with the
Regional Trial Court (RTC), Branch 94, Manila, a complaint for sum of money.
In their answer, both petitioners specifically denied the allegations in the complaint and averred that
it is the Metropolitan Trial Court, not the RTC, which has jurisdiction over the case.
On June 5, 1992, the trial court rendered a Decision 3 in favor of respondents Standard and Martina,
thus:
"WHEREFORE, and in view of the foregoing considerations, judgment is hereby rendered
in favor of the plaintiffs, Standard Insurance Company and Martina Gicale, and against
defendants Pantranco Bus Company and Alexander Buncan, ordering the latter to pay as
follows:
(1) to pay plaintiff Standard Insurance the amount of P8,000.00 with interest due thereon
from November 27, 1984 until fully paid;
(2) to pay plaintiff Martina Gicale the amount of P13,415.00 with interest due thereon from
October 22, 1984 until fully paid;
(3) to pay the sum of P10,000.00 for attorney’s fees;
(4) to pay the expenses of litigation and the cost of suit.
SO ORDERED."
On appeal, the Court of Appeals, in a Decision4 dated July 23, 1999, affirmed the trial court’s ruling,
holding that:
"The appellants argue that appellee Gicale’s claim of P13,415.00 and appellee insurance
company’s claim of P8,000.00 individually fell under the exclusive original jurisdiction of
the municipal trial court. This is not correct because under the Totality Rule provided for
under Sec. 19, Batas Pambansa Bilang 129, it is the sum of the two claims that determines
the jurisdictional amount.
xxx
In the case at bench, the total of the two claims is definitely more than P20,000.00 which at
the time of the incident in question was the jurisdictional amount of the Regional Trial
Court.
Appellants contend that there was a misjoinder of parties. Assuming that there was, under
the Rules of Court (Sec. 11, Rule 7) as well as under the Rules of Civil Procedure (ditto),
the same does not affect the jurisdiction of the court nor is it a ground to dismiss the
complaint.
xxx
It does not need perspicacity in logic to see that appellees Gicale’s and insurance
company’s individual claims against appellees (sic) arose from the same vehicular accident
on October 28, 1984 involving appellant Pantranco’s bus and appellee Gicale’s jeepney.
That being the case, there was a question of fact common to all the parties: Whose fault or
negligence caused the damage to the jeepney?
Appellants submit that they were denied their day in court because the case was deemed
submitted for decision "without even declaring defendants in default or to have waived the
presentation of evidence." This is incorrect. Of course, the court did not declare defendants
in default because that is done only when the defendant fails to tender an answer within the
reglementary period. When the lower court ordered that the case is deemed submitted for
decision that meant that the defendants were deemed to have waived their right to present
evidence. If they failed to adduce their evidence, they should blame nobody but themselves.
They failed to be present during the scheduled hearing for the reception of their evidence
despite notice and without any motion or explanation. They did not even file any motion
for reconsideration of the order considering the case submitted for decision.
Finally, contrary to the assertion of the defendant-appellants, the evidence preponderantly
established their liability for quasi-delict under Article 2176 of the Civil Code."
Petitioners filed a motion for reconsideration but was denied by the Appellate Court in a Resolution
dated November 4, 1999.
Hence, this petition for review on certiorari raising the following assignments of error:
"I
WHETHER OR NOT THE TRIAL COURT HAS JURISDICTION OVER THE SUBJECT
OF THE ACTION CONSIDERING THAT RESPONDENTS’ RESPECTIVE CAUSE OF
ACTION AGAINST PETITIONERS DID NOT ARISE OUT OF THE SAME
TRANSACTION NOR ARE THERE QUESTIONS OF LAW AND FACTS COMMON
TO BOTH PETITIONERS AND RESPONDENTS.
II
WHETHER OR NOT PETITIONERS ARE LIABLE TO RESPONDENTS
CONSIDERING THAT BASED ON THE EVIDENCE ADDUCED AND LAW
APPLICABLE IN THE CASE AT BAR, RESPONDENTS HAVE NOT SHOWN ANY
RIGHT TO THE RELIEF PRAYED FOR.
III
WHETHER OR NOT PETITIONERS WERE DEPRIVED OF THEIR RIGHT TO DUE
PROCESS."
For their part, respondents contend that their individual claims arose out of the same vehicular
accident and involve a common question of fact and law. Hence, the RTC has jurisdiction over the
case.
I B.P. Blg. 1299 which states, among others, that "where there are several claims or causes of action
Petitioners insist that the trial court has no jurisdiction over the case since the cause of action of each
respondent did not arise from the same transaction and that there are no common questions of law
and fact common to both parties. Section 6, Rule 3 of the Revised Rules of Court, 5 provides:
"Sec. 6. Permissive joinder of parties. – All persons in whom or against whom any right to
relief in respect to or arising out of the same transaction or series of transactions is alleged
to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided
in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any
question of law or fact common to all such plaintiffs or to all such defendants may arise in
the action; but the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any proceedings in
which he may have no interest."
Permissive joinder of parties requires that: (a) the right to relief arises out of the same transaction or
series of transactions; (b) there is a question of law or fact common to all the plaintiffs or defendants;
and (c) such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and
venue.6
In this case, there is a single transaction common to all, that is, Pantranco’s bus hitting the rear side of
the jeepney. There is also a common question of fact, that is, whether petitioners are negligent. There
being a single transaction common to both respondents, consequently, they have the same cause of
action against petitioners.
To determine identity of cause of action, it must be ascertained whether the same evidence which is
necessary to sustain the second cause of action would have been sufficient to authorize a recovery in
the first.7 Here, had respondents filed separate suits against petitioners, the same evidence would have
been presented to sustain the same cause of action. Thus, the filing by both respondents of the
complaint with the court below is in order. Such joinder of parties avoids multiplicity of suit and
ensures the convenient, speedy and orderly administration of justice.
Corollarily, Section 5(d), Rule 2 of the same Rules provides:
"Sec. 5. Joinder of causes of action. – A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may have against an opposing party, subject to
the following conditions:
xxx
(d) Where the claims in all the causes of action are principally for recovery of money the
aggregate amount claimed shall be the test of jurisdiction."
The above provision presupposes that the different causes of action which are joined accrue in favor
of the same plaintiff/s and against the same defendant/s and that no misjoinder of parties is involved.8
The issue of whether respondents’ claims shall be lumped together is determined by paragraph (d) of
the above provision. This paragraph embodies the "totality rule" as exemplified by Section 33 (1) of
between the same or different parties, embodied in the same complaint, the amount of the demand
shall be the totality of the claims in all the causes of action, irrespective of whether the causes of
action arose out of the same or different transactions."
As previously stated, respondents’ cause of action against petitioners arose out of the same
transaction. Thus, the amount of the demand shall be the totality of the claims.
Respondent Standard’s claim is P8,000.00, while that of respondent Martina Gicale is P13,415.00, or
a total of P21,415.00. Section 19 of B.P. Blg. 129 provides that the RTC has "exclusive original
jurisdiction over all other cases, in which the demand, exclusive of interest and cost or the value of
the property in controversy, amounts to more than twenty thousand pesos (P20,000.00)." Clearly, it is
the RTC that has jurisdiction over the instant case. It bears emphasis that when the complaint was
filed, R.A. 7691 expanding the jurisdiction of the Metropolitan, Municipal and Municipal Circuit
Trial Courts had not yet taken effect. It became effective on April 15, 1994.
II
The finding of the trial court, affirmed by the Appellate Court, that petitioners are negligent and thus
liable to respondents, is a factual finding which is binding upon us, a rule well-established in our
jurisprudence. It has been repeatedly held that the trial court's factual findings, when affirmed by the
Appellate Court, are conclusive and binding upon this Court, if they are not tainted with arbitrariness
or oversight of some fact or circumstance of significance and influence. Petitioners have not
presented sufficient ground to warrant a deviation from this rule. 10
III
There is no merit in petitioners’ contention that they were denied due process. Records show that
during the hearing, petitioner Pantranco’s counsel filed two motions for resetting of trial which were
granted by the trial court. Subsequently, said counsel filed a notice to withdraw. After respondents
had presented their evidence, the trial court, upon petitioners’ motion, reset the hearing to another
date. On this date, Pantranco failed to appear. Thus, the trial court warned Pantranco that should it
fail to appear during the next hearing, the case will be submitted for resolution on the basis of the
evidence presented. Subsequently, Pantranco’s new counsel manifested that his client is willing to
settle the case amicably and moved for another postponement. The trial court granted the motion. On
the date of the hearing, the new counsel manifested that Pantranco’s employees are on strike and
moved for another postponement. On the next hearing, said counsel still failed to appear. Hence, the
trial court considered the case submitted for decision.
We have consistently held that the essence of due process is simply an opportunity to be heard, or an
opportunity to explain one’s side or an opportunity to seek for a reconsideration of the action or
ruling complained of.11
Petitioner Pantranco filed an answer and participated during the trial and presentation of respondents’
evidence. It was apprised of the notices of hearing issued by the trial court. Indeed, it was afforded
fair and reasonable opportunity to explain its side of the controversy. Clearly, it was not denied of its
right to due process. What is frowned upon is the absolute lack of notice and hearing which is not
present here.
WHEREFORE, the petition is DENIED. The assailed Decision dated July 23 1999 and Resolution
dated November 4, 1999 of the Court of Appeals in CA-G.R. CV No. 38453 are hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. L-21450 April 15, 1968
SERAFIN TIJAM, ET AL., plaintiffs-appellees,
vs.
MAGDALENO SIBONGHANOY alias GAVINO SIBONGHANOY and LUCIA BAGUIO,
defendants,
MANILA SURETY AND FIDELITY CO., INC. (CEBU BRANCH) bonding company and
defendant-appellant.
F. S. Urot and G. A. Uriate for plaintiffs-appellees.
Carlos J. Cuizon for defendants Gavino Sibonghanoy and Lucia Baguio.
Villaluz Law Office, Velasco Law Office, Pages and Soberano for defendant-appellant Manila Surety
and Fidelity Company, Inc.
DIZON, J.:
On July 19, 1948 — barely one month after the effectivity of Republic Act No. 296 known as the
Judiciary Act of 1948 — the spouses Serafin Tijam and Felicitas Tagalog commenced Civil Case No.
R-660 in the Court of First Instance of Cebu against the spouses Magdaleno Sibonghanoy and Lucia
Baguio to recover from them the sum of P1,908.00, with legal interest thereon from the date of the
filing of the complaint until the whole obligation is paid, plus costs. As prayed for in the complaint, a
writ of attachment was issued by the court against defendants' properties, but the same was soon
dissolved upon the filing of a counter-bond by defendants and the Manila Surety and Fidelity Co.,
Inc. hereinafter referred to as the Surety, on the 31st of the same month.
After being duly served with summons the defendants filed their answer in which, after making some
admissions and denials of the material averments of the complaint, they interposed a counterclaim.
This counterclaim was answered by the plaintiffs.
After trial upon the issues thus joined, the Court rendered judgment in favor of the plaintiffs and,
after the same had become final and executory, upon motion of the latter, the Court issued a writ of
execution against the defendants. The writ having been returned unsatisfied, the plaintiffs moved for
the issuance of a writ of execution against the Surety's bond (Rec. on Appeal, pp. 46-49), against
which the Surety filed a written opposition (Id. pp. 49) upon two grounds, namely, (1) Failure to
prosecute and (2) Absence of a demand upon the Surety for the payment of the amount due under the
judgment. Upon these grounds the Surety prayed the Court not only to deny the motion for execution
against its counter-bond but also the following affirmative relief : "to relieve the herein bonding
company of its liability, if any, under the bond in question" (Id. p. 54) The Court denied this motion
on the ground solely that no previous demand had been made on the Surety for the satisfaction of the
judgment. Thereafter the necessary demand was made, and upon failure of the Surety to satisfy the
judgment, the plaintiffs filed a second motion for execution against the counterbond. On the date set
for the hearing thereon, the Court, upon motion of the Surety's counsel, granted the latter a period of
five days within which to answer the motion. Upon its failure to file such answer, the Court granted
the motion for execution and the corresponding writ was issued.
Subsequently, the Surety moved to quash the writ on the ground that the same was issued without the
required summary hearing provided for in Section 17 of Rule 59 of the Rules of Court. As the Court
denied the motion, the Surety appealed to the Court of Appeals from such order of denial and from
the one denying its motion for reconsideration (Id. p. 97). Its record on appeal was then printed as
required by the Rules, and in due time it filed its brief raising therein no other question but the ones
covered by the following assignment of errors:
I. That the Honorable Court a quo erred in issuing its order dated November 2,
1957, by holding the incident as submitted for resolution, without a summary
hearing and compliance with the other mandatory requirements provided for in
Section 17, Rule 59 of the Rules of Court.
 II. That the Honorable Court a quo erred in ordering the issuance of execution
against the herein bonding company-appellant.
III. That the Honorable Court a quo erred in denying the motion to quash the writ
of execution filed by the herein bonding company-appellant as well as its
subsequent motion for reconsideration, and/or in not quashing or setting aside the
writ of execution.
Not one of the assignment of errors — it is obvious — raises the question of lack of jurisdiction,
neither directly nor indirectly.
Although the appellees failed to file their brief, the Court of Appeals, on December 11, 1962, decided
the case affirming the orders appealed from.
On January 8, 1963 — five days after the Surety received notice of the decision, it filed a motion
asking for extension of time within which to file a motion for reconsideration. The Court of Appeals
granted the motion in its resolution of January 10 of the same year. Two days later the Surety filed a
pleading entitled MOTION TO DISMISS, alleging substantially that appellees action was filed in the
Court of First Instance of Cebu on July 19, 1948 for the recovery of the sum of P1,908.00 only; that a
month before that date Republic Act No. 296, otherwise known as the Judiciary Act of 1948, had
already become effective, Section 88 of which placed within the original exclusive jurisdiction of
inferior courts all civil actions where the value of the subject-matter or the amount of the demand
does not exceed P2,000.00, exclusive of interest and costs; that the Court of First Instance therefore
had no jurisdiction to try and decide the case. Upon these premises the Surety's motion prayed the
Court of Appeals to set aside its decision and to dismiss the case. By resolution of January 16, 1963
the Court of Appeals required the appellees to answer the motion to dismiss, but they failed to do so.
Whereupon, on May 20 of the same year, the Court resolved to set aside its decision and to certify the
case to Us. The pertinent portions of its resolution read as follows:
It would indeed appear from the record that the action at bar, which is a suit for
collection of money in the sum of exactly P1,908.00 exclusive of interest, was
originally instituted in the Court of First Instance of Cebu on July 19, 1948. But
about a month prior to the filing of the complaint, more specifically on June 17,
1948, the Judiciary Act of 1948 took effect, depriving the Court of First Instance
of original jurisdiction over cases in which the demand, exclusive of interest, is
not more than P2,000.00. (Secs. 44[c] and 86[b], R.A. No. 296.)
We believe, therefore, that the point raised in appellant's motion is an important
one which merits serious consideration. As stated, the complaint was filed on
July 19, 1948. This case therefore has been pending now for almost 15 years, and
throughout the entire proceeding appellant never raised the question of
jurisdiction until after receipt of this Court's adverse decision.
There are three cases decided by the Honorable Supreme Court which may be
worthy of consideration in connection with this case, namely: Tyson Tan, et al.
vs. Filipinas Compañia de Seguros, et al., G.R. No. L-10096, March 23, 1956;
Pindangan Agricultural Co., Inc. vs. Jose P. Dans, etc., et al., G.R. No. L-14591,
September 26, 1962; and Alfredo Montelibano, et al. vs. Bacolod-Murcia Milling
Co., Inc., G.R. No. L-15092, September 29, 1962, wherein the Honorable
Supreme Court frowned upon the 'undesirable practice' of appellants submitting
their case for decision and then accepting the judgment, if favorable, but
attacking it for lack of jurisdiction when adverse.
Considering, however, that the Supreme Court has the "exclusive" appellate
jurisdiction over "all cases in which the jurisdiction of any inferior court is in
issue" (See. 1, Par. 3[3], Judiciary Act of 1948, as amended), we have no choice
but to certify, as we hereby do certify, this case to the Supreme
Court.1äwphï1.ñët
ACCORDINGLY, pursuant to Section 31 of the Judiciary Act of 1948 as
amended, let the record of this case be forwarded to the Supreme Court.
It is an undisputed fact that the action commenced by appellees in the Court of First Instance of Cebu
against the Sibonghanoy spouses was for the recovery of the sum of P1,908.00 only — an amount
within the original exclusive jurisdiction of inferior courts in accordance with the provisions of the
Judiciary Act of 1948 which had taken effect about a month prior to the date when the action was
commenced. True also is the rule that jurisdiction over the subject matter is conferred upon the courts
exclusively by law, and as the lack of it affects the very authority of the court to take cognizance of
the case, the objection may be raised at any stage of the proceedings. However, considering the facts
and circumstances of the present case — which shall forthwith be set forth — We are of the opinion
that the Surety is now barred by laches from invoking this plea at this late hour for the purpose of
annuling everything done heretofore in the case with its active participation.
As already stated, the action was commenced in the Court of First Instance of Cebu on July 19, 1948,
that is, almost fifteen years before the Surety filed its motion to dismiss on January 12, 1963 raising
the question of lack of jurisdiction for the first time.
It must be remembered that although the action, originally, was exclusively against the Sibonghanoy
spouses the Surety became a quasi-party therein since July 31, 1948 when it filed a counter-bond for
the dissolution of the writ of attachment issued by the court of origin (Record on Appeal, pp. 15-19).
Since then, it acquired certain rights and assumed specific obligations in connection with the pending
case, in accordance with sections 12 and 17, Rule 57, Rules of Court (Bautista vs. Joaquin, 46 Phil.
885; Kimpang & Co. vs. Javier, 65 Phil. 170).
Upon the filing of the first motion for execution against the counter-bond the Surety not only filed a
written opposition thereto praying for its denial but also asked for an additional affirmative relief —
that it be relieved of its liability under the counter-bond upon the grounds relied upon in support of its
opposition — lack of jurisdiction of the court a quo not being one of them.
Then, at the hearing on the second motion for execution against the counter-bond, the Surety
appeared, through counsel, to ask for time within which to file an answer or opposition thereto. This
motion was granted, but instead of such answer or opposition, the Surety filed the motion to dismiss
mentioned heretofore.
A party may be estopped or barred from raising a question in different ways and for different reasons.
Thus we speak of estoppel in pais, or estoppel by deed or by record, and of estoppel by laches.
Laches, in a general sense is failure or neglect, for an unreasonable and unexplained length of time, to
do that which, by exercising due diligence, could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party entitled to
assert it either has abandoned it or declined to assert it.
The doctrine of laches or of "stale demands" is based upon grounds of public policy which requires,
for the peace of society, the discouragement of stale claims and, unlike the statute of limitations, is
not a mere question of time but is principally a question of the inequity or unfairness of permitting a
right or claim to be enforced or asserted.
It has been held that a party can not invoke the jurisdiction of a court to sure affirmative relief against
his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same
jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of explaining
the rule, it was further said that the question whether the court had jurisdiction either of the subject-
matter of the action or of the parties was not important in such cases because the party is barred from
such conduct not because the judgment or order of the court is valid and conclusive as an
adjudication, but for the reason that such a practice can not be tolerated — obviously for reasons of
public policy.
Furthermore, it has also been held that after voluntarily submitting a cause and encountering an
adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the
court (Pease vs. Rathbun-Jones etc., 243 U.S. 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis etc. vs.
McBride, 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16 Wyo. 58, the Court said that
it is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty.
Upon this same principle is what We said in the three cases mentioned in the resolution of the Court
of Appeals of May 20, 1963 (supra) — to the effect that we frown upon the "undesirable practice" of
a party submitting his case for decision and then accepting the judgment, only if favorable, and
attacking it for lack of jurisdiction, when adverse — as well as in Pindañgan etc. vs. Dans, et al.,
G.R. L-14591, September 26, 1962; Montelibano, et al., vs. Bacolod-Murcia Milling Co., Inc., G.R.
L-15092; Young Men Labor Union etc. vs. The Court of Industrial Relation et al., G.R. L-20307, Feb.
26, 1965, and Mejia vs. Lucas, 100 Phil. p. 277.
The facts of this case show that from the time the Surety became a quasi-party on July 31, 1948, it
could have raised the question of the lack of jurisdiction of the Court of First Instance of Cebu to take
cognizance of the present action by reason of the sum of money involved which, according to the law
then in force, was within the original exclusive jurisdiction of inferior courts. It failed to do so.
Instead, at several stages of the proceedings in the court a quo as well as in the Court of Appeals, it
invoked the jurisdiction of said courts to obtain affirmative relief and submitted its case for a final
adjudication on the merits. It was only after an adverse decision was rendered by the Court of
Appeals that it finally woke up to raise the question of jurisdiction. Were we to sanction such conduct
on its part, We would in effect be declaring as useless all the proceedings had in the present case
since it was commenced on July 19, 1948 and compel the judgment creditors to go up their Calvary
once more. The inequity and unfairness of this is not only patent but revolting.
Coming now to the merits of the appeal: after going over the entire record, We have become
persuaded that We can do nothing better than to quote in toto, with approval, the decision rendered by
the Court of Appeals on December 11, 1962 as follows:
In Civil Case No. R-660 of the Court of First Instance of Cebu, which was a suit
for collection of a sum of money, a writ of attachment was issued against
defendants' properties. The attachment, however, was subsequently discharged
under Section 12 of Rule 59 upon the filing by defendants of a bond subscribed
by Manila Surety & Fidelity Co., Inc.
After trial, judgment was rendered in favor of plaintiffs.
The writ of execution against defendants having been returned totally unsatisfied,
plaintiffs moved, under Section 17 of Rule 59, for issuance of writ of execution
against Manila Surety & Fidelity Co., Inc. to enforce the obligation of the bond.
But the motion was, upon the surety's opposition, denied on the ground that there
was "no showing that a demand had been made, by the plaintiffs to the bonding
company for payment of the amount due under the judgment" (Record on
Appeal, p. 60).
Hence, plaintiffs made the necessary demand upon the surety for satisfaction of
the judgment, and upon the latter's failure to pay the amount due, plaintiffs again
filed a motion dated October 31, 1957, for issuance of writ of execution against
the surety, with notice of hearing on November 2, 1957. On October 31, 1957,
the surety received copy of said motion and notice of hearing.
It appears that when the motion was called on November 2, 1957, the surety's
counsel asked that he be given time within which to answer the motion, and so an
order was issued in open court, as follows:1äwphï1.ñët
As prayed for, Atty. Jose P. Soberano, Jr., counsel for the Manila
Surety & Fidelity Co., Inc., Cebu Branch, is given until Wednesday,
November 6, 1957, to file his answer to the motion for the issuance of a
writ of execution dated October 30, 1957 of the plaintiffs, after which
this incident shall be deemed submitted for resolution.
SO ORDERED.
Given in open court, this 2nd day of November, 1957, at Cebu City,
Philippines.
(Sgd.) JOSE M. MENDOZA
Judge
(Record on Appeal, pp.
64-65, emphasis ours)
Since the surety's counsel failed to file any answer or objection within the period
given him, the court, on December 7, 1957, issued an order granting plaintiffs'
motion for execution against the surety; and on December 12, 1957, the
corresponding writ of execution was issued.
On December 24, 1957, the surety filed a motion to quash the writ of execution
on the ground that the same was "issued without the requirements of Section 17,
Rule 59 of the Rules of Court having been complied with," more specifically, that
the same was issued without the required "summary hearing". This motion was
denied by order of February 10, 1958.
On February 25, 1958, the surety filed a motion for reconsideration of the above-
stated order of denial; which motion was likewise denied by order of March 26,
1958.
From the above-stated orders of February 10, 1958 and March 26, 1958 —
denying the surety's motion to quash the writ of execution and motion for
reconsideration, respectively — the surety has interposed the appeal on hand.
The surety insists that the lower court should have granted its motion to quash the
writ of execution because the same was issued without the summary hearing
required by Section 17 of Rule 59, which reads;
"Sec. 17. When execution returned unsatisfied, recovery had upon
bond. — If the execution be returned unsatisfied in whole or in part, the
surety or sureties on any bond given pursuant to the provisions of this
role to secure the payment of the judgment shall become finally
charged on such bond, and bound to pay to the plaintiff upon demand
the amount due under the judgment, which amount may be recovered
from such surety or sureties after notice and summary hearing in the
same action." (Emphasis ours)
Summary hearing is "not intended to be carried on in the formal manner in which
ordinary actions are prosecuted" (83 C.J.S. 792). It is, rather, a procedure by
which a question is resolved "with dispatch, with the least possible delay, and in
preference to ordinary legal and regular judicial proceedings" (Ibid, p. 790). What
is essential is that "the defendant is notified or summoned to appear and is given
an opportunity to hear what is urged upon him, and to interpose a defense, after
which follows an adjudication of the rights of the parties" (Ibid., pp. 793-794);
and as to the extent and latitude of the hearing, the same will naturally lie upon
the discretion of the court, depending upon the attending circumstances and the
nature of the incident up for consideration.
In the case at bar, the surety had been notified of the plaintiffs' motion for
execution and of the date when the same would be submitted for consideration. In
fact, the surety's counsel was present in court when the motion was called, and it
was upon his request that the court a quo gave him a period of four days within
which to file an answer. Yet he allowed that period to lapse without filing an
answer or objection. The surety cannot now, therefore, complain that it was
deprived of its day in court.
It is argued that the surety's counsel did not file an answer to the motion "for the
simple reason that all its defenses can be set up during the hearing of the motion
even if the same are not reduced to writing" (Appellant's brief, p. 4). There is
obviously no merit in this pretense because, as stated above, the record will show
that when the motion was called, what the surety's counsel did was to ask that he
be allowed and given time to file an answer. Moreover, it was stated in the order
given in open court upon request of the surety's counsel that after the four-day
period within which to file an answer, "the incident shall be deemed submitted
for resolution"; and counsel apparently agreed, as the order was issued upon his
instance and he interposed no objection thereto.
It is also urged that although according to Section 17 of Rule 59, supra, there is
no need for a separate action, there must, however, be a separate judgment
against the surety in order to hold it liable on the bond (Appellant's Brief, p. 15).
Not so, in our opinion. A bond filed for discharge of attachment is, per Section 12
of Rule 59, "to secure the payment to the plaintiff of any judgment he may
recover in the action," and stands "in place of the property so released". Hence,
after the judgment for the plaintiff has become executory and the execution is
"returned unsatisfied" (Sec. 17, Rule 59), as in this case, the liability of the bond
automatically attaches and, in failure of the surety to satisfy the judgment against
the defendant despite demand therefor, writ of execution may issue against the
surety to enforce the obligation of the bond.
UPON ALL THE FOREGOING, the orders appealed from are hereby affirmed, with costs
against the appellant Manila Surety and Fidelity Company, Inc.
G.R. No. 147406 July 14, 2008
VENANCIO FIGUEROA y CERVANTES,1 Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
When is a litigant estopped by laches from assailing the jurisdiction of a tribunal? This is the
paramount issue raised in this petition for review of the February 28, 2001 Decision 2 of the Court of
Appeals (CA) in CA-G.R. CR No. 22697.
Pertinent are the following antecedent facts and proceedings:
On July 8, 1994, an information3 for reckless imprudence resulting in homicide was filed against the
petitioner before the Regional Trial Court (RTC) of Bulacan, Branch 18. 4 The case was docketed as
Criminal Case No. 2235-M-94.5 Trial on the merits ensued and on August 19, 1998, the trial court
convicted the petitioner as charged.6 In his appeal before the CA, the petitioner questioned, among
others, for the first time, the trial court’s jurisdiction.7
The appellate court, however, in the challenged decision, considered the petitioner to have actively
participated in the trial and to have belatedly attacked the jurisdiction of the RTC; thus, he was
already estopped by laches from asserting the trial court’s lack of jurisdiction. Finding no other
ground to reverse the trial court’s decision, the CA affirmed the petitioner’s conviction but modified
the penalty imposed and the damages awarded.8
Dissatisfied, the petitioner filed the instant petition for review on certiorari raising the following
issues for our resolution:
a. Does the fact that the petitioner failed to raise the issue of jurisdiction during the trial of
this case, which was initiated and filed by the public prosecutor before the wrong court,
constitute laches in relation to the doctrine laid down in Tijam v. Sibonghanoy,
notwithstanding the fact that said issue was immediately raised in petitioner’s appeal to the
Honorable Court of Appeals? Conversely, does the active participation of the petitioner in
the trial of his case, which is initiated and filed not by him but by the public prosecutor,
amount to estoppel?
b. Does the admission of the petitioner that it is difficult to immediately stop a bus while it
is running at 40 kilometers per hour for the purpose of avoiding a person who unexpectedly
crossed the road, constitute enough incriminating evidence to warrant his conviction for the
crime charged?
c. Is the Honorable Court of Appeals justified in considering the place of accident as falling
within Item 4 of Section 35 (b) of the Land Transportation and Traffic Code, and
subsequently ruling that the speed limit thereto is only 20 kilometers per hour, when no
evidence whatsoever to that effect was ever presented by the prosecution during the trial of
this case?
d. Is the Honorable Court of Appeals justified in convicting the petitioner for homicide
through reckless imprudence (the legally correct designation is "reckless imprudence
resulting to homicide") with violation of the Land Transportation and Traffic Code when
the prosecution did not prove this during the trial and, more importantly, the information
filed against the petitioner does not contain an allegation to that effect?
e. Does the uncontroverted testimony of the defense witness Leonardo Hernal that the
victim unexpectedly crossed the road resulting in him getting hit by the bus driven by the
petitioner not enough evidence to acquit him of the crime charged?9
Applied uniformly is the familiar rule that the jurisdiction of the court to hear and decide a case is
conferred by the law in force at the time of the institution of the action, unless such statute provides
for a retroactive application thereof.10 In this case, at the time the criminal information for reckless
imprudence resulting in homicide with violation of the Automobile Law (now Land Transportation
and Traffic Code) was filed, Section 32(2) of Batas Pambansa (B.P.) Blg. 129 11 had already been
amended by Republic Act No. 7691.12 The said provision thus reads:
Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts in Criminal Cases.—Except in cases falling within the exclusive original jurisdiction of
Regional Trial Courts and the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts shall exercise:
xxxx
(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six
(6) years irrespective of the amount of fine, and regardless of other imposable accessory or other
penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of
kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to
property through criminal negligence, they shall have exclusive original jurisdiction thereof.
As the imposable penalty for the crime charged herein is prision correccional in its medium and
maximum periods or imprisonment for 2 years, 4 months and 1 day to 6 years, 13 jurisdiction to hear
and try the same is conferred on the Municipal Trial Courts (MTCs). Clearly, therefore, the RTC of
Bulacan does not have jurisdiction over Criminal Case No. 2235-M-94.
While both the appellate court and the Solicitor General acknowledge this fact, they nevertheless are
of the position that the principle of estoppel by laches has already precluded the petitioner from
questioning the jurisdiction of the RTC—the trial went on for 4 years with the petitioner actively
participating therein and without him ever raising the jurisdictional infirmity. The petitioner, for his
part, counters that the lack of jurisdiction of a court over the subject matter may be raised at any time
even for the first time on appeal. As undue delay is further absent herein, the principle of laches will
not be applicable.
To settle once and for all this problem of jurisdiction vis-à-vis estoppel by laches, which continuously
confounds the bench and the bar, we shall analyze the various Court decisions on the matter.
As early as 1901, this Court has declared that unless jurisdiction has been conferred by some
legislative act, no court or tribunal can act on a matter submitted to it. 14 We went on to state in U.S. v.
De La Santa15 that:
It has been frequently held that a lack of jurisdiction over the subject-matter is fatal, and subject to
objection at any stage of the proceedings, either in the court below or on appeal (Ency. of Pl. & Pr.,
vol. 12, p. 189, and large array of cases there cited), and indeed, where the subject-matter is not
within the jurisdiction, the court may dismiss the proceeding ex mero motu. (4 Ill., 133; 190 Ind., 79;
Chipman vs. Waterbury, 59 Conn., 496.)
Jurisdiction over the subject-matter in a judicial proceeding is conferred by the sovereign authority
which organizes the court; it is given only by law and in the manner prescribed by law and an
objection based on the lack of such jurisdiction can not be waived by the parties. x x x16
Later, in People v. Casiano,17 the Court explained:
4. The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon
whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was
tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from
assailing such jurisdiction, for the same "must exist as a matter of law, and may not be conferred by
consent of the parties or by estoppel" (5 C.J.S., 861-863). However, if the lower court had
jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the
court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on
appeal, to assume an inconsistent position—that the lower court had jurisdiction. Here, the principle
of estoppel applies. The rule that jurisdiction is conferred by law, and does not depend upon the will
of the parties, has no bearing thereon. Thus, Corpus Juris Secundum says:
Where accused has secured a decision that the indictment is void, or has been granted an instruction
based on its defective character directing the jury to acquit, he is estopped, when subsequently
indicted, to assert that the former indictment was valid. In such case, there may be a new prosecution
whether the indictment in the former prosecution was good or bad. Similarly, where, after the jury
was impaneled and sworn, the court on accused's motion quashed the information on the erroneous
assumption that the court had no jurisdiction, accused cannot successfully plead former jeopardy to a
new information. x x x (22 C.J.S., sec. 252, pp. 388-389; italics ours.)
Where accused procured a prior conviction to be set aside on the ground that the court was without
jurisdiction, he is estopped subsequently to assert, in support of a defense of previous jeopardy, that
such court had jurisdiction." (22 C.J.S. p. 378.)18
But in Pindañgan Agricultural Co., Inc. v. Dans,19 the Court, in not sustaining the plea of lack of
jurisdiction by the plaintiff-appellee therein, made the following observations:
It is surprising why it is only now, after the decision has been rendered, that the plaintiff-appellee
presents the question of this Court’s jurisdiction over the case. Republic Act No. 2613 was enacted
on August 1, 1959. This case was argued on January 29, 1960. Notwithstanding this fact, the
jurisdiction of this Court was never impugned until the adverse decision of this Court was handed
down. The conduct of counsel leads us to believe that they must have always been of the belief that
notwithstanding said enactment of Republic Act 2613 this Court has jurisdiction of the case, such
conduct being born out of a conviction that the actual real value of the properties in question actually
exceeds the jurisdictional amount of this Court (over ₱200,000). Our minute resolution in G.R. No.
L-10096, Hyson Tan, et al. vs. Filipinas Compaña de Seguros, et al., of March 23, 1956, a parallel
case, is applicable to the conduct of plaintiff-appellee in this case, thus:
x x x that an appellant who files his brief and submits his case to the Court of Appeals for decision,
without questioning the latter’s jurisdiction until decision is rendered therein, should be considered as
having voluntarily waived so much of his claim as would exceed the jurisdiction of said Appellate
Court; for the reason that a contrary rule would encourage the undesirable practice of appellants
submitting their cases for decision to the Court of Appeals in expectation of favorable judgment, but
with intent of attacking its jurisdiction should the decision be unfavorable: x x x20
Then came our ruling in Tijam v. Sibonghanoy21 that a party may be barred by laches from invoking
lack of jurisdiction at a late hour for the purpose of annulling everything done in the case with the
active participation of said party invoking the plea. We expounded, thus:
A party may be estopped or barred from raising a question in different ways and for different reasons.
Thus, we speak of estoppel in pais, of estoppel by deed or by record, and of estoppel by laches.
Laches, in a general sense, is failure or neglect, for an unreasonable and unexplained length of time,
to do that which, by exercising due diligence, could or should have been done earlier; it is negligence
or omission to assert a right within a reasonable time, warranting a presumption that the party entitled
to assert it either has abandoned it or declined to assert it.
The doctrine of laches or of "stale demands" is based upon grounds of public policy which requires,
for the peace of society, the discouragement of stale claims and, unlike the statute of limitations, is
not a mere question of time but is principally a question of the inequity or unfairness of permitting a
right or claim to be enforced or asserted.
It has been held that a party cannot invoke the jurisdiction of a court to secure affirmative relief
against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that
same jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of
explaining the rule, it was further said that the question whether the court had jurisdiction either of
the subject matter of the action or of the parties was not important in such cases because the party is
barred from such conduct not because the judgment or order of the court is valid and conclusive as an
adjudication, but for the reason that such a practice cannot be tolerated—obviously for reasons of
public policy.
Furthermore, it has also been held that after voluntarily submitting a cause and encountering an
adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the
court (Pease vs. Rathbun-Jones etc., 243 U.S. 273, 61 L. Ed. 715, 37 S.Ct. 283; St. Louis etc. vs.
McBride, 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16 Wyo. 58, the Court said that
it is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty.
Upon this same principle is what We said in the three cases mentioned in the resolution of the Court
of Appeals of May 20, 1963 (supra)—to the effect that we frown upon the "undesirable practice" of a
party submitting his case for decision and then accepting the judgment, only if favorable, and
attacking it for lack of jurisdiction, when adverse—as well as in Pindañgan etc. vs. Dans et al., G.R.
L-14591, September 26, 1962; Montelibano et al. vs. Bacolod-Murcia Milling Co., Inc., G.R. L-
15092; Young Men Labor Union etc. vs. The Court of Industrial Relations et al., G.R. L-20307, Feb.
26, 1965, and Mejia vs. Lucas, 100 Phil. p. 277.
The facts of this case show that from the time the Surety became a quasi-party on July 31, 1948, it
could have raised the question of the lack of jurisdiction of the Court of First Instance of Cebu to take
cognizance of the present action by reason of the sum of money involved which, according to the law
then in force, was within the original exclusive jurisdiction of inferior courts. It failed to do so.
Instead, at several stages of the proceedings in the court a quo, as well as in the Court of Appeals, it
invoked the jurisdiction of said courts to obtain affirmative relief and submitted its case for a final
adjudication on the merits. It was only after an adverse decision was rendered by the Court of
Appeals that it finally woke up to raise the question of jurisdiction. Were we to sanction such conduct
on its part, We would in effect be declaring as useless all the proceedings had in the present case
since it was commenced on July 19, 1948 and compel the judgment creditors to go up their Calvary
once more. The inequity and unfairness of this is not only patent but revolting. 22
For quite a time since we made this pronouncement in Sibonghanoy, courts and tribunals, in
resolving issues that involve the belated invocation of lack of jurisdiction, have applied the principle
of estoppel by laches. Thus, in Calimlim v. Ramirez,23 we pointed out that Sibonghanoy was
developing into a general rule rather than the exception:
A rule that had been settled by unquestioned acceptance and upheld in decisions so numerous to cite
is that the jurisdiction of a court over the subject-matter of the action is a matter of law and may not
be conferred by consent or agreement of the parties. The lack of jurisdiction of a court may be raised
at any stage of the proceedings, even on appeal. This doctrine has been qualified by recent
pronouncements which stemmed principally from the ruling in the cited case of Sibonghanoy. It is to
be regretted, however, that the holding in said case had been applied to situations which were
obviously not contemplated therein. The exceptional circumstance involved in Sibonghanoy which
justified the departure from the accepted concept of non-waivability of objection to jurisdiction has
been ignored and, instead a blanket doctrine had been repeatedly upheld that rendered the supposed
ruling in Sibonghanoy not as the exception, but rather the general rule, virtually overthrowing
altogether the time-honored principle that the issue of jurisdiction is not lost by waiver or by estoppel.
In Sibonghanoy, the defense of lack of jurisdiction of the court that rendered the questioned ruling
was held to be barred by estoppel by laches. It was ruled that the lack of jurisdiction having been
raised for the first time in a motion to dismiss filed almost fifteen (15) years after the questioned
ruling had been rendered, such a plea may no longer be raised for being barred by laches. As defined
in said case, laches is "failure or neglect, for an unreasonable and unexplained length of time, to do
that which, by exercising due diligence, could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party entitled to
assert has abandoned it or declined to assert it.24
In Calimlim, despite the fact that the one who benefited from the plea of lack of jurisdiction was the
one who invoked the court’s jurisdiction, and who later obtained an adverse judgment therein, we
refused to apply the ruling in Sibonghanoy. The Court accorded supremacy to the time-honored
principle that the issue of jurisdiction is not lost by waiver or by estoppel.
Yet, in subsequent cases decided after Calimlim, which by sheer volume are too plentiful to mention,
the Sibonghanoy doctrine, as foretold in Calimlim, became the rule rather than the exception. As
such, in Soliven v. Fastforms Philippines, Inc.,25 the Court ruled:
While it is true that jurisdiction may be raised at any time, "this rule presupposes that estoppel has not
supervened." In the instant case, respondent actively participated in all stages of the proceedings
before the trial court and invoked its authority by asking for an affirmative relief. Clearly, respondent
is estopped from challenging the trial court’s jurisdiction, especially when an adverse judgment has
been rendered. In PNOC Shipping and Transport Corporation vs. Court of Appeals, we held:
Moreover, we note that petitioner did not question at all the jurisdiction of the lower court x x x in its
answers to both the amended complaint and the second amended complaint. It did so only in its
motion for reconsideration of the decision of the lower court after it had received an adverse decision.
As this Court held in Pantranco North Express, Inc. vs. Court of Appeals (G.R. No. 105180, July 5,
1993, 224 SCRA 477, 491), participation in all stages of the case before the trial court, that included
invoking its authority in asking for affirmative relief, effectively barred petitioner by estoppel from
challenging the court’s jurisdiction. Notably, from the time it filed its answer to the second amended
complaint on April 16, 1985, petitioner did not question the lower court’s jurisdiction. It was only on
December 29, 1989 when it filed its motion for reconsideration of the lower court’s decision that
petitioner raised the question of the lower court’s lack of jurisdiction. Petitioner thus foreclosed its
right to raise the issue of jurisdiction by its own inaction. (italics ours)
Similarly, in the subsequent case of Sta. Lucia Realty and Development, Inc. vs. Cabrigas, we ruled:
In the case at bar, it was found by the trial court in its 30 September 1996 decision in LCR Case No.
Q-60161(93) that private respondents (who filed the petition for reconstitution of titles) failed to
comply with both sections 12 and 13 of RA 26 and therefore, it had no jurisdiction over the subject
matter of the case. However, private respondents never questioned the trial court’s jurisdiction over
its petition for reconstitution throughout the duration of LCR Case No. Q-60161(93). On the contrary,
private respondents actively participated in the reconstitution proceedings by filing pleadings and
presenting its evidence. They invoked the trial court’s jurisdiction in order to obtain affirmative relief
– the reconstitution of their titles. Private respondents have thus foreclosed their right to raise the
issue of jurisdiction by their own actions.
The Court has constantly upheld the doctrine that while jurisdiction may be assailed at any stage, a
litigant’s participation in all stages of the case before the trial court, including the invocation of its
authority in asking for affirmative relief, bars such party from challenging the court’s jurisdiction
(PNOC Shipping and Transport Corporation vs. Court of Appeals, 297 SCRA 402 [1998]). A party
cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after
obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Asset
Privatization Trust vs. Court of Appeals, 300 SCRA 579 [1998]; Province of Bulacan vs. Court of
Appeals, 299 SCRA 442 [1998]). The Court frowns upon the undesirable practice of a party
participating in the proceedings and submitting his case for decision and then accepting judgment,
only if favorable, and attacking it for lack of jurisdiction, when adverse (Producers Bank of the
Philippines vs. NLRC, 298 SCRA 517 [1998], citing Ilocos Sur Electric Cooperative, Inc. vs. NLRC,
241 SCRA 36 [1995]). (italics ours)26
Noteworthy, however, is that, in the 2005 case of Metromedia Times Corporation v. Pastorin, 27 where
the issue of lack of jurisdiction was raised only in the National Labor Relations Commission (NLRC)
on appeal, we stated, after examining the doctrines of jurisdiction vis-à-vis estoppel, that the ruling in
Sibonghanoy stands as an exception, rather than the general rule. Metromedia, thus, was not estopped
from assailing the jurisdiction of the labor arbiter before the NLRC on appeal. 281avvphi1
Later, in Francel Realty Corporation v. Sycip,29 the Court clarified that:
Petitioner argues that the CA’s affirmation of the trial court’s dismissal of its case was erroneous,
considering that a full-blown trial had already been conducted. In effect, it contends that lack of
jurisdiction could no longer be used as a ground for dismissal after trial had ensued and ended.
The above argument is anchored on estoppel by laches, which has been used quite successfully in a
number of cases to thwart dismissals based on lack of jurisdiction. Tijam v. Sibonghanoy, in which
this doctrine was espoused, held that a party may be barred from questioning a court’s jurisdiction
after being invoked to secure affirmative relief against its opponent. In fine, laches prevents the issue
of lack of jurisdiction from being raised for the first time on appeal by a litigant whose purpose is to
annul everything done in a trial in which it has actively participated.
Laches is defined as the "failure or neglect for an unreasonable and unexplained length of time, to do
that which, by exercising due diligence, could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party entitled to
assert it either has abandoned it or declined to assert it."
The ruling in Sibonghanoy on the matter of jurisdiction is, however, the exception rather than the
rule.1avvphi1 Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in cases
in which the factual milieu is analogous to that in the cited case. In such controversies, laches should
be clearly present; that is, lack of jurisdiction must have been raised so belatedly as to warrant the
presumption that the party entitled to assert it had abandoned or declined to assert it. That
Sibonghanoy applies only to exceptional circumstances is clarified in Calimlim v. Ramirez, which we
quote:
A rule that had been settled by unquestioned acceptance and upheld in decisions so numerous to cite
is that the jurisdiction of a court over the subject-matter of the action is a matter of law and may not
be conferred by consent or agreement of the parties. The lack of jurisdiction of a court may be raised
at any stage of the proceedings, even on appeal. This doctrine has been qualified by recent
pronouncements which stemmed principally from the ruling in the cited case of Sibonghanoy. It is to
be regretted, however, that the holding in said case had been applied to situations which were
obviously not contemplated therein. The exceptional circumstance involved in Sibonghanoy which
justified the departure from the accepted concept of non-waivability of objection to jurisdiction has
been ignored and, instead a blanket doctrine had been repeatedly upheld that rendered the supposed
ruling in Sibonghanoy not as the exception, but rather the general rule, virtually overthrowing
altogether the time-honored principle that the issue of jurisdiction is not lost by waiver or by estoppel.
Indeed, the general rule remains: a court’s lack of jurisdiction may be raised at any stage of the
proceedings, even on appeal. The reason is that jurisdiction is conferred by law, and lack of it affects
the very authority of the court to take cognizance of and to render judgment on the action. Moreover,
jurisdiction is determined by the averments of the complaint, not by the defenses contained in the
answer.30
Also, in Mangaliag v. Catubig-Pastoral,31 even if the pleader of lack of jurisdiction actively took part
in the trial proceedings by presenting a witness to seek exoneration, the Court, reiterating the doctrine
in Calimlim, said:
Private respondent argues that the defense of lack of jurisdiction may be waived by estoppel through
active participation in the trial. Such, however, is not the general rule but an exception, best
characterized by the peculiar circumstances in Tijam vs. Sibonghanoy. In Sibonghanoy, the party
invoking lack of jurisdiction did so only after fifteen years and at a stage when the proceedings had
already been elevated to the CA. Sibonghanoy is an exceptional case because of the presence of
laches, which was defined therein as failure or neglect for an unreasonable and unexplained length of
time to do that which, by exercising due diligence, could or should have been done earlier; it is the
negligence or omission to assert a right within a reasonable time, warranting a presumption that the
party entitled to assert has abandoned it or declined to assert it. 32
And in the more recent Regalado v. Go,33 the Court again emphasized that laches should be clearly
present for the Sibonghanoy doctrine to be applicable, thus:
Laches is defined as the "failure or neglect for an unreasonable and unexplained length of time, to do
that which, by exercising due diligence, could or should have been done earlier, it is negligence or
omission to assert a right within a reasonable length of time, warranting a presumption that the party
entitled to assert it either has abandoned it or declined to assert it."
The ruling in People v. Regalario that was based on the landmark doctrine enunciated in Tijam v.
Sibonghanoy on the matter of jurisdiction by estoppel is the exception rather than the rule. Estoppel
by laches may be invoked to bar the issue of lack of jurisdiction only in cases in which the factual
milieu is analogous to that in the cited case. In such controversies, laches should have been clearly
present; that is, lack of jurisdiction must have been raised so belatedly as to warrant the presumption
that the party entitled to assert it had abandoned or declined to assert it.
In Sibonghanoy, the defense of lack of jurisdiction was raised for the first time in a motion to dismiss
filed by the Surety almost 15 years after the questioned ruling had been rendered. At several stages of
the proceedings, in the court a quo as well as in the Court of Appeals, the Surety invoked the
jurisdiction of the said courts to obtain affirmative relief and submitted its case for final adjudication
on the merits. It was only when the adverse decision was rendered by the Court of Appeals that it
finally woke up to raise the question of jurisdiction.
Clearly, the factual settings attendant in Sibonghanoy are not present in the case at bar. Petitioner
Atty. Regalado, after the receipt of the Court of Appeals resolution finding her guilty of contempt,
promptly filed a Motion for Reconsideration assailing the said court’s jurisdiction based on
procedural infirmity in initiating the action. Her compliance with the appellate court’s directive to
show cause why she should not be cited for contempt and filing a single piece of pleading to that
effect could not be considered as an active participation in the judicial proceedings so as to take the
case within the milieu of Sibonghanoy. Rather, it is the natural fear to disobey the mandate of the
court that could lead to dire consequences that impelled her to comply.34
The Court, thus, wavered on when to apply the exceptional circumstance in Sibonghanoy and on
when to apply the general rule enunciated as early as in De La Santa and expounded at length in
Calimlim. The general rule should, however, be, as it has always been, that the issue of jurisdiction
may be raised at any stage of the proceedings, even on appeal, and is not lost by waiver or by
estoppel. Estoppel by laches, to bar a litigant from asserting the court’s absence or lack of
jurisdiction, only supervenes in exceptional cases similar to the factual milieu of Tijam v.
Sibonghanoy. Indeed, the fact that a person attempts to invoke unauthorized jurisdiction of a court
does not estop him from thereafter challenging its jurisdiction over the subject matter, since such
jurisdiction must arise by law and not by mere consent of the parties. This is especially true where the
person seeking to invoke unauthorized jurisdiction of the court does not thereby secure any advantage
or the adverse party does not suffer any harm.35
Applying the said doctrine to the instant case, the petitioner is in no way estopped by laches in
assailing the jurisdiction of the RTC, considering that he raised the lack thereof in his appeal before
the appellate court. At that time, no considerable period had yet elapsed for laches to attach. True,
delay alone, though unreasonable, will not sustain the defense of "estoppel by laches" unless it further
appears that the party, knowing his rights, has not sought to enforce them until the condition of the
party pleading laches has in good faith become so changed that he cannot be restored to his former
state, if the rights be then enforced, due to loss of evidence, change of title, intervention of equities,
and other causes.36 In applying the principle of estoppel by laches in the exceptional case of
Sibonghanoy, the Court therein considered the patent and revolting inequity and unfairness of having
the judgment creditors go up their Calvary once more after more or less 15 years.37 The same,
however, does not obtain in the instant case.
We note at this point that estoppel, being in the nature of a forfeiture, is not favored by law. It is to be
applied rarely—only from necessity, and only in extraordinary circumstances. The doctrine must be
applied with great care and the equity must be strong in its favor. 38 When misapplied, the doctrine of
estoppel may be a most effective weapon for the accomplishment of injustice. 39 Moreover, a
judgment rendered without jurisdiction over the subject matter is void. 40 Hence, the Revised Rules of
Court provides for remedies in attacking judgments rendered by courts or tribunals that have no
jurisdiction over the concerned cases. No laches will even attach when the judgment is null and void
for want of jurisdiction.41 As we have stated in Heirs of Julian Dela Cruz and Leonora Talaro v. Heirs
of Alberto Cruz,42
It is axiomatic that the jurisdiction of a tribunal, including a quasi-judicial officer or government
agency, over the nature and subject matter of a petition or complaint is determined by the material
allegations therein and the character of the relief prayed for, irrespective of whether the petitioner or
complainant is entitled to any or all such reliefs. Jurisdiction over the nature and subject matter of an
action is conferred by the Constitution and the law, and not by the consent or waiver of the parties
where the court otherwise would have no jurisdiction over the nature or subject matter of the action.
Nor can it be acquired through, or waived by, any act or omission of the parties. Moreover, estoppel
does not apply to confer jurisdiction to a tribunal that has none over the cause of action. x x x
Indeed, the jurisdiction of the court or tribunal is not affected by the defenses or theories set up by the
defendant or respondent in his answer or motion to dismiss. Jurisdiction should be determined by
considering not only the status or the relationship of the parties but also the nature of the issues or
questions that is the subject of the controversy. x x x x The proceedings before a court or tribunal
without jurisdiction, including its decision, are null and void, hence, susceptible to direct and
collateral attacks.43
With the above considerations, we find it unnecessary to resolve the other issues raised in the
petition.
WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. Criminal
Case No. 2235-M-94 is hereby DISMISSED without prejudice.
SO ORDERED.
G.R. No. L-34362 November 19, 1982
MODESTA CALIMLIM AND LAMBERTO MAGALI IN HIS CAPACITY AS
ADMINISTRATOR OF THE ESTATE OF DOMINGO MAGALI, petitioners,
vs.
HON. PEDRO A. RAMIREZ IN HIS CAPACITY AS PRESIDING JUDGE OF THE COURT
OF FIRST INSTANCE OF PANGASINAN, BRANCH I, and FRANCISCO RAMOS,
respondents.
Eugenio Ramos for petitioners.
Rogelio P. Closa for respondents.
VASQUEZ, J.:
The dismissal of Civil Case No. SCC-180 filed by the herein petitioners in the respondent Court
against the private respondent is sought to be annulled and set aside by this Petition For Review On
Certiorari.
The antecedent material facts are not disputed. Sometime in 1961, a judgment for a sum of money
was rendered in favor of Independent Mercantile Corporation against a certain Manuel Magali by the
Municipal Court of Manila in Civil Case No. 85136. After said judgment became final, a writ of
execution was issued on July 31, 1961. The Notice of Levy made on September 21, 1961 on a parcel
of land covered by Transfer Certificate of Title No. 9138 registered in the name of "Domingo Magali,
married to Modesta Calimlim", specified that the said levy was only against "all rights, title, action,
interest and participation of the defendant Manuel Magali over the parcel of land described in this
title. " The Certificate of Sale executed by the Provincial Sheriff of Pangasinan on October 17, 1961
in favor of Independent Mercantile Corporation also stated that the sale referred only to the rights and
interest of Manuel Magali over the land described in TCT No. 9138. Manuel Magali is one of the
several children of Domingo Magali who had died in 1940 and herein petitioner Modesta Calimlim.
However, when the Sheriff issued the final Deed of Sale on January 25, 1963, it was erroneously
stated therein that the sale was with respect to "the parcel of land described in this title" (referring to
TCT No. 9138) and not only over the rights and interest of Manuel Magali in the same. The
execution of the said final Deed of Sale was annotated at the back of said title.
On February 23, 1967, Independent Mercantile Corporation filed a petition in the respondent Court to
compel Manuel Magali to surrender the owner's duplicate of TCT No. 9138 in order that the same
may be cancelled and a new one issued in the name of the said corporation. Not being the registered
owner and the title not being in his possession, Manuel Magali failed to comply with the order of the
Court directing him to surrender the said title. On June 20, 1967, Independent Mercantile Corporation
filed an ex-parte petition to declare TCT No. 9138 as cancelled and to issue a new title in its name.
The said petition was granted by the respondent Court and in its Order dated July 13, 1967, it directed
the issuance of a new certificate of title in the name of the Independent Mercantile Corporation and
the cancellation of TCT No. 9138. By virtue of said Order, the Register of Deeds of Pangasinan
issued a new title in the name of the corporation, Identified as TCT No. 68568.
On November 21, 1967, petitioner Modesta Calimlim, surviving spouse of Domingo Magali, upon
learning that her husband's title over the parcel of land had been cancelled, filed a petition with the
respondent Court, sitting as a cadastral court, praying for the cancellation of TCT No. 68568. An
opposition to the said petition was filed by Independent Mercantile Corporation. After the parties
submitted their respective Memoranda, the respondent Court issued an Order dated June 3, 1968
dismissing the petition. (Rollo, pp. 31-38.)
The herein petitioners did not appeal the dismissal of the petition they filed in LRC Record No.
39492 for the cancellation of TCT No. 68568. Instead, on January 11, 1971, they filed the complaint
in Civil Case No. SCC-180 praying for the cancellation of the conveyances and sales that had been
made with respect to the property, covered by TCT No. 9138 previously registered in the name of
Domingo Magali, married to Modesta Calimlim. Named as defendant in said civil case was herein
private respondent Francisco Ramos who claimed to have bought the property from Independent
Mercantile Corporation on July 25, 1967. Private respondent Francisco Ramos, however, failed to
obtain a title over the property in his name in view of the existence of an adverse claim annotated on
the title thereof at the instance of the herein petitioners.
Private respondent Francisco Ramos filed a Motion To Dismiss Civil Case No. SCC-180 on the
ground that the same is barred by prior judgement or by statute of limitations (Rollo. pp. 42-45).
Resolving the said Motion, the respondent Court, in its Order dated April 21, 1971, dismissed Civil
Case No. SCC- 180 on the ground of estoppel by prior judgment. (Ibid., pp, 10-13.) A Motion For
Reconsideration filed by the petitioners was denied by the respondent Judge in his Order of
September 2, 1971. (Ibid., pp. 13-15.) A second Motion For Reconsideration was similarly denied in
the Order dated September 29, 197 1. (Rollo, pp. 16-17.) Hence, this Petition.
We find merit in this appeal.
It is error to consider the dismissal of the petition filed by the herein petitioner in LRC Record No.
39492 for the cancellation of TCT No. 68568 as a bar by prior judgment against the filing of Civil
Case No. SCC-180. In order to avail of the defense of res judicata, it must be shown, among others,
that the judgment in the prior action must have been rendered by a court with the proper jurisdiction
to take cognizance of the proceeding in which the prior judgment or order was rendered. If there is
lack of jurisdiction over the subject-matter of the suit or of the parties, the judgment or order cannot
operate as an adjudication of the controversy. (2 Moran Comments on the Rules of Court, 1970
Edition, p. 364.) This essential element of the defense of bar by prior judgment or res judicata does
not exist in the case presently considered.
The petition filed by the herein petitioners in LRC Record No. 39492 was an apparent invocation of
the authority of the respondent Court sitting as a land registration court, Although the said petition
did not so state, that reliance was apparently placed on Section 112 of the Land Registration Act. It
has been settled by consistent rulings of this Court that a court of first instance, acting as a land
registration court, is a court of limited and special jurisdiction. As such, its proceedings are not
adequate for the litigation of issues pertaining to an ordinary civil action, such as, questions involving
ownership or title to real property. (Bareng vs. Shintoist Shrine and Japanese Charity Bureau, 83
SCRA 418; Manalo vs. Mariano, 69 SCRA 80; In re: Nicanor T Santos, 102 SCRA 747; Santos vs.
Aquino, 101 SCRA 377.) In Hu chon Sunpongco vs. Heirs of Nicolas Ronquillo, L- 27040, December
19, 1970, 36 SCRA 395, we have held that:
Section 112 of Act 496 confers authority upon the land registration
court to order the cancellation, alteration or amendment of a certificate
of title but withdraws from the Court the power to pass upon any
question concerning ownership of the registered property, or any
incident where the issues involved have become controversial.
It may hardly be questioned that the issues raised by the petitioners in their petition to cancel TCT
No. 68568 refer to the ownership or title over the property covered thereby. The said petition
presented before the respondent Court in the exercise of its limited jurisdiction as a cadastral court,
the question of who should be considered the true and lawful owner of the parcel of land embraced in
said title. The petitioners alleged therein that they are the true owners of the property, and that TCT
No. 68568 which they sought to cancel was issued as a result of the errors which were not of their
own making. In short, the petition raised a highly controversial matter which is beyond the judicial
competence of a cadastral court to pass upon or to adjudicate.
It may neither be claimed that the parties have mutually agreed to submit the aforesaid issues for the
determination by the court, it being a fact that herein private respondent was not a party in the
petition in LRC Record No. 39492. Incidentally, although the said petition was filed by the herein
petitioners on November 21, 1967, the Opposition filed by Independent Mercantile Corporation to the
said petition made no mention of the alleged sale of the property in question in favor of private
respondent Francisco Ramos on July 5, 1967. This circumstance places in grave doubt the sincerity of
said sale and the claim that the private respondent was an innocent purchaser for value of the property
in question.
In the order of the respondent Judge dated September 29, 1971 denying the second motion for
reconsideration, he cited the case of Tijam vs. Sibonghanoy, 23 SCRA 29, to uphold the view that the
petitioners are deemed estopped from questioning the jurisdiction of the respondent Court in having
taken cognizance of the petition for cancellation of TCT No. 68568, they being the ones who invoked
the jurisdiction of the said Court to grant the affirmative relief prayed for therein. We are of the
opinion that the ruling laid down in Sibonghanoy may not be applied herein. Neither its factual
backdrop nor the philosophy of the doctrine therein expounded fits the case at bar.
A rule that had been settled by unquestioned acceptance and upheld in decisions so numerous to cite
is that the jurisdiction of a court over the subject-matter of the action is a matter of law and may not
be conferred by consent or agreement of the parties. The lack of jurisdiction of a court may be raised
at any stage of the proceedings, even on appeal. This doctrine has been qualified by recent
pronouncements which stemmed principally from the ruling in the cited case of Sibonghanoy. It is to
be regretted, however, that the holding in said case had been applied to situations which were
obviously not contemplated therein. The exceptional circumstance involved in Sibonghanoy which
justified the departure from the accepted concept of non-waivability of objection to jurisdiction has
been ignored and, instead a blanket doctrine had been repeatedly upheld that rendered the supposed
ruling in Sibonghanoy not as the exception, but rather the general rule, virtually overthrowing
altogether the time-honored principle that the issue of jurisdiction is not lost by waiver or by estoppel.
In Sibonghanoy, the defense of lack of jurisdiction of the court that rendered the questioned ruling
was held to be barred by estoppel by laches. It was ruled that the lack of jurisdiction having been
raised for the first time in a motion to dismiss filed almost fifteen (15) years after the questioned
ruling had been rendered, such a plea may no longer be raised for being barred by laches. As defined
in said case, laches is "failure or neglect, for an unreasonable and unexplained length of time, to do
that which, by exercising due diligence, could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party entitled to
assert has abandoned it or declined to assert it."
The petitioners in the instant case may not be faulted with laches. When they learned that the title to
the property owned by them had erroneously and illegally been cancelled and registered in the name
of another entity or person who had no right to the same, they filed a petition to cancel the latter's
title. It is unfortunate that in pursuing said remedy, their counsel had to invoke the authority of the
respondent Court as a cadastral court, instead of its capacity as a court of general jurisdiction. Their
petition to cancel the title in the name of Independent Mercantile Corporation was dismissed upon a
finding by the respondent Court that the same was "without merit." No explanation was given for
such dismissal nor why the petition lacked merit. There was no hearing, and the petition was resolved
solely on the basis of memoranda filed by the parties which do not appear of record. It is even a
possibility that such dismissal was in view of the realization of the respondent Court that, sitting as a
cadastral court, it lacked the authority to entertain the petition involving as it does a highly
controversial issue. Upon such petition being dismissed, the petitioners instituted Civil Case No.
SCC-180 on January 1, 1971, or only two and one-half years after the dismissal of their petition in
LRC Record No. 39492. Hence, we see no unreasonable delay in the assertion by the petitioners of
their right to claim the property which rightfully belongs to them. They can hardly be presumed to
have abandoned or waived such right by inaction within an unreasonable length of time or
inexcusable negligence. In short, their filing of Civil Case No. SCC-180 which in itself is an implied
non-acceptance of the validity of the proceedings had in LRC Record No. 39492 may not be deemed
barred by estoppel by laches.
It is neither fair nor legal to bind a party by the result of a suit or proceeding which was taken
cognizance of in a court which lacks jurisdiction over the same irrespective of the attendant
circumstances. The equitable defense of estoppel requires knowledge or consciousness of the facts
upon which it is based. The same thing is true with estoppel by conduct which may be asserted only
when it is shown, among others, that the representation must have been made with knowledge of the
facts and that the party to whom it was made is ignorant of the truth of the matter. (De Castro vs.
Gineta, 27 SCRA 623.) The filing of an action or suit in a court that does not possess jurisdiction to
entertain the same may not be presumed to be deliberate and intended to secure a ruling which could
later be annulled if not favorable to the party who filed such suit or proceeding. Instituting such an
action is not a one-sided affair. It can just as well be prejudicial to the one who filed the action or suit
in the event that he obtains a favorable judgment therein which could also be attacked for having
been rendered without jurisdiction. The determination of the correct jurisdiction of a court is not a
simple matter. It can raise highly debatable issues of such importance that the highest tribunal of the
land is given the exclusive appellate jurisdiction to entertain the same. The point simply is that when
a party commits error in filing his suit or proceeding in a court that lacks jurisdiction to take
cognizance of the same, such act may not at once be deemed sufficient basis of estoppel. It could
have been the result of an honest mistake, or of divergent interpretations of doubtful legal provisions.
If any fault is to be imputed to a party taking such course of action, part of the blame should be
placed on the court which shall entertain the suit, thereby lulling the parties into believing that they
pursued their remedies in the correct forum. Under the rules, it is the duty of the court to dismiss an
action "whenever it appears that the court has no jurisdiction over the subject matter." (Sec. 2, Rule 9,
Rules of Court.) Should the court render a judgment without jurisdiction, such judgment may be
impeached or annulled for lack of jurisdiction (Sec. 30, Rule 132, Ibid), within ten (10) years from
the finality of the same. (Art. 1144, par. 3, Civil Code.)
The inequity of barring the petitioners from vindicating their right over their property in Civil Case
No. SCC-180 is rendered more acute in the face of the undisputed fact that the property in question
admittedly belonged to the petitioners, and that the title in the name of the private respondent was the
result of an error committed by the Provincial Sheriff in issuing the deed of sale in the execution
proceeding. The justness of the relief sought by herein petitioners may not be ignored or rendered
futile by reason of a doctrine which is of highly doubtful applicability herein.
WHEREFORE, the Orders appealed from are hereby REVERSED and SET ASIDE. The Motion To
Dismiss filed by the private respondent in Civil Case No. SCC-180 shall be deemed denied and the
respondent Court is ordered to conduct further proceedings in the case. With costs against the private
respondent.
SO ORDERED.
G.R. No. 143951 October 25, 2005
Norma Mangaliag and Narciso Solano, Petitioners,
vs.
Hon. Edelwina Catubig-Pastoral, Judge of the Regional Trial Court, 1st Judicial Region, San
Carlos City, (Pangasinan), Branch 56 and Apolinario Serquina, Jr., Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for certiorari, with a prayer for the issuance of a temporary restraining order,
to set aside the Order dated April 17, 2000 of the Regional Trial Court (RTC), Branch 56, San Carlos
City in Civil Case No. SCC-2240, which denied petitioners’ motion to dismiss; and the Order dated
June 13, 2000, which denied petitioners’ motion for reconsideration.
The factual background of the case is as follows:
On May 10, 1999, private respondent Apolinario Serquina, Jr. filed before the RTC a complaint for
damages against petitioners Norma Mangaliag and Narciso Solano. The complaint alleges that: on
January 21, 1999, from 9:00 to 10:00 a.m., private respondent, together with Marco de Leon, Abner
Mandapat and Manuel de Guzman, was on board a tricycle driven by Jayson Laforte; while in Pagal,
San Carlos City, a dump truck owned by petitioner Mangaliag and driven by her employee, petitioner
Solano, coming from the opposite direction, tried to overtake and bypass a tricycle in front of it and
thereby encroached the left lane and sideswiped the tricycle ridden by private respondent; due to the
gross negligence, carelessness and imprudence of petitioner Solano in driving the truck, private
respondent and his co-passengers sustained serious injuries and permanent deformities; petitioner
Mangaliag failed to exercise due diligence required by law in the selection and supervision of her
employee; private respondent was hospitalized and spent ₱71,392.00 as medical expenses; private
respondent sustained a permanent facial deformity due to a fractured nose and suffers from severe
depression as a result thereof, for which he should be compensated in the amount of ₱500,000.00 by
way of moral damages; as a further result of his hospitalization, private respondent lost income of
₱25,000.00; private respondent engaged the services of counsel on a contingent basis equal to 25% of
the total award.1
On July 21, 1999, petitioners filed their answer with counterclaim denying that private respondent
has a cause of action against them. They attributed fault or negligence in the vehicular accident on the
tricycle driver, Jayson Laforte, who was allegedly driving without license. 2
Following pre-trial conference, trial on the merits ensued. When private respondent rested his case,
petitioner Solano testified in his defense.
Subsequently, on March 8, 2000, petitioners, assisted by a new counsel, filed a motion to dismiss on
the ground of lack of jurisdiction over the subject matter of the claim, alleging that the Municipal
Trial Court (MTC) has jurisdiction over the case since the principal amount prayed for, in the amount
of ₱71,392.00, falls within its jurisdiction.3 Private respondent opposed petitioners’ motion to
dismiss.4 On March 24, 2000, petitioners filed a supplement in support of their motion to dismiss. 5
On April 17, 2000, the respondent RTC Judge, Edelwina Catubig-Pastoral, issued the first assailed
Order denying petitioners’ motion to dismiss,6 relying upon the mandate of Administrative Circular
No. 09-94, paragraph 2 of which reads:
2. The exclusion of the term "damages of whatever kind in determining the jurisdictional amount
under Section 19 (8) and Section 33 (1) of B.P. Blg. 129, as amended by R.A. No. 7691, applied to
cases where the damages are merely incidental to or a consequence of the main cause of action.
However, in cases where the claim for damages is the main cause of action, or one of the causes of
action, the amount of such claim shall be considered in determining the jurisdiction of the court.
The respondent RTC Judge also cited the 1999 case of Ong vs. Court of Appeals,7 where an action for
damages due to a vehicular accident, with prayer for actual damages of ₱10,000.00 and moral
damages of ₱1,000,000.00, was tried in a RTC.
On May 19, 2000, petitioners filed a motion for reconsideration 8 but it was denied by the respondent
RTC Judge in her second assailed Order, dated June 13, 2000. 9
Hence, the present petition for certiorari, with prayer for the issuance of a temporary restraining
order.10
On August 9, 2000, the Court resolved to issue the temporary restraining order prayed for by
petitioners. Consequently, the respondent RTC Judge desisted from hearing further Civil Case No.
SCC-2240.11
Petitioners propound this issue for consideration: In an action for recovery of damages, does the
amount of actual damages prayed for in the complaint provide the sole test for determining the
court’s jurisdiction, or is the total amount of all the damages claimed, regardless of kind and nature,
such as moral, exemplary, nominal damages, and attorney’s fees, etc., to be computed collectively
with the actual damages to determine what court – whether the MTC or the RTC – has jurisdiction
over the action?
Petitioners maintain that the court’s jurisdiction should be based exclusively on the amount of actual
damages, excluding therefrom the amounts claimed as moral, exemplary, nominal damages and
attorney’s fee, etc. They submit that the specification in Administrative Circular No. 09-94 that "in
cases where the claim for damages is the main cause of action. . . the amount of such claim shall be
considered in determining the jurisdiction of the court" signifies that the court’s jurisdiction must be
tested solely by the amount of that damage which is principally and primarily demanded, and not the
totality of all the damages sought to be recovered.
Petitioners insist that private respondent’s claim for actual damages in the amount of ₱71,392.00 is
the principal and primary demand, the same being the direct result of the alleged negligence of
petitioners, while the moral damages for ₱500,000.00 and attorney’s fee, being the consequent effects
thereof, may prosper only upon a prior finding by the court of the existence of petitioners’ negligence
that caused the actual damages. Considering that the amount of actual damages claimed by private
respondent in Civil Case No. SCC-2240 does not exceed ₱200,000.00, which was then the
jurisdictional amount of the MTC, the jurisdiction over the case clearly pertains to the MTC, and not
to the RTC. Therefore, the RTC should have dismissed the case for lack of jurisdiction. Petitioners
cite as relevant the case of Movers-Baseco Integrated Port Services, Inc. vs. Cyborg Leasing
Corporation12wherein the Court, in disposing of the jurisdictional issue, limited its consideration only
to the actual or compensatory damages.
Furthermore, while admitting that the defense of lack of jurisdiction was only raised during the trial,
petitioners nevertheless contend that jurisdiction may be raised anytime, even after judgment, but
before it is barred by laches or estoppel. They submit that they seasonably presented the objection to
the RTC’s lack of jurisdiction, i.e., during the trial stage where no decision had as yet been rendered,
must less one unfavorable to them.
At any rate, they argue that when the jurisdictional flaw is evident from the record of the case, the
court may, even without the urgings of the parties, take judicial notice of such fact, and thereupon
dismiss the case motu proprio. Thus, even if lack of jurisdiction was not initially raised in a motion to
dismiss or in the answer, no waiver may be imputed to them.
Private respondent, on the other hand, submits that in an action for recovery of damages arising from
a tortious act, the claim of moral damages is not merely an incidental or consequential claim but must
be considered in the amount of demand which will determine the court’s jurisdiction. He argues that
the position taken by petitioners is a misreading of paragraph 2 of Administrative Circular No. 09-94.
The clear and explicit language of said circular leaves no room for doubt; hence, needs no
interpretation.
He further submits that petitioners’ reliance on Movers-Baseco Integrated Port Services, Inc. is
misplaced since that case is for recovery of the value of vehicle and unpaid rentals on the lease of the
same. He contends that Section 18, paragraph 8 of Batas Pambansa Blg. 129, as amended by
Republic Act No. 7691, upon which petitioners anchor their stand, refers to all the demands involving
collection of sums of money based on obligations arising from contract, express or implied, where the
claim for damages is just incidental thereto and it does not apply to actions for damages based on
obligations arising from quasi-delict where the claim for damages of whatever kind is the main
action.
Private respondent also contends that, being incapable of pecuniary computation, the amount of
moral damages that he may be awarded depends on the sound discretion of the trial court, not
restrained by the limitation of the jurisdictional amount. Should the Court follow petitioners’ line of
reasoning, private respondent argues that it will result in an absurd situation where he can only be
awarded moral damages of not more than ₱200,000.00 although he deserves more than this amount,
taking into consideration his physical suffering, as well as social and financial standing, simply
because his claim for actual damages does not exceed ₱200,000.00 which amount falls under the
jurisdiction of the MTC.
Lastly, he asserts that it is too late in the day for petitioners to question the jurisdiction of the RTC
since they are estopped from invoking this ground. He contends that after actively taking part in the
trial proceedings and presenting a witness to seek exoneration, it would be unfair and legally
improper for petitioners to seek the dismissal of the case.
At the outset, it is necessary to stress that generally a direct recourse to this Court is highly improper,
for it violates the established policy of strict observance of the judicial hierarchy of courts. Although
this Court, the RTCs and the Court of Appeals (CA) have concurrent jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence
does not give the petitioner unrestricted freedom of choice of court forum. This Court is a court of
last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the
Constitution and immemorial tradition.13
Thus, this Court, as a rule, will not entertain direct resort to it unless the redress desired cannot be
obtained in the appropriate courts, and exceptional and compelling circumstances, such as cases of
national interest and of serious implications, justify the availment of the extraordinary remedy of writ
of certiorari, calling for the exercise of its primary jurisdiction.14 Such exceptional and compelling
circumstances were present in the following cases: (a) Chavez vs. Romulo15on the citizens’ right to
bear arms; (b) Government of the United States of America vs. Purganan16 on bail in extradition
proceedings; (c) Commission on Elections vs. Quijano-Padilla17on a government contract on the
modernization and computerization of the voters’ registration list; (d) Buklod ng Kawaning EIIB vs.
Zamora[18] on the status and existence of a public office; and (e) Fortich vs. Corona19 on the so-
called "Win-Win Resolution" of the Office of the President which modified the approval of the
conversion to agro-industrial area of a 144-hectare land.
Be that as it may, the judicial hierarchy of courts is not an iron-clad rule. It generally applies to cases
involving warring factual allegations. For this reason, litigants are required to repair to the trial courts
at the first instance to determine the truth or falsity of these contending allegations on the basis of the
evidence of the parties. Cases which depend on disputed facts for decision cannot be brought
immediately before appellate courts as they are not triers of facts.20 Therefore, a strict application of
the rule of hierarchy of courts is not necessary when the cases brought before the appellate courts do
not involve factual but legal questions.
In the present case, petitioners submit a pure question of law involving the interpretation and
application of paragraph 2 of Administrative Circular No. 09-94. This legal question and in order to
avoid further delay are compelling enough reasons to allow petitioners’ invocation of this Court’s
jurisdiction in the first instance.
Before resolving this issue, the Court shall deal first on the question of estoppel posed by private
respondent. Private respondent argues that the defense of lack of jurisdiction may be waived by
estoppel through active participation in the trial. Such, however, is not the general rule but an
exception, best characterized by the peculiar circumstances in Tijam vs. Sibonghanoy.21 In
Sibonghanoy, the party invoking lack of jurisdiction did so only after fifteen years and at a stage
when the proceedings had already been elevated to the CA. Sibonghanoy is an exceptional case
because of the presence of laches, which was defined therein as failure or neglect for an unreasonable
and unexplained length of time to do that which, by exercising due diligence, could or should have
been done earlier; it is the negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert has abandoned it or declined to assert it. 22
As enunciated in Calimlim vs. Ramirez,23 this Court held:
A rule that had been settled by unquestioned acceptance and upheld in decisions so numerous to cite
is that the jurisdiction of a court over the subject matter of the action is a matter of law and may not
be conferred by consent or agreement of the parties. The lack of jurisdiction of a court may be raised
at any stage of the proceedings, even on appeal. This doctrine has been qualified by recent
pronouncements which stemmed principally from the ruling in the cited case of Sibonghanoy. It is to
be regretted, however, that the holding in said case had been applied to situations which were
obviously not contemplated therein. The exceptional circumstances involved in Sibonghanoy which
justified the departure from the accepted concept of non-waivability of objection to jurisdiction has
been ignored and, instead a blanket doctrine had been repeatedly upheld that rendered the supposed
ruling in Sibonghanoy not as the exception, but rather the general rule, virtually overthrowing
altogether the time honored principle that the issue of jurisdiction is not lost by waiver or by estoppel.
...
It is neither fair nor legal to bind a party by the result of a suit or proceeding which was taken
cognizance of in a court which lacks jurisdiction over the same irrespective of the attendant
circumstances. The equitable defense of estoppel requires knowledge or consciousness of the facts
upon which it is based. The same thing is true with estoppel by conduct which may be asserted only
when it is shown, among others, that the representation must have been made with knowledge of the
facts and that the party to whom it was made is ignorant of the truth of the matter (De Castro vs.
Gineta, 27 SCRA 623). The filing of an action or suit in a court that does not possess jurisdiction to
entertain the same may not be presumed to be deliberate and intended to secure a ruling which could
later be annulled if not favorable to the party who filed such suit or proceeding. Instituting such an
action is not a one-sided affair. It can just as well be prejudicial to the one who file the action or suit
in the event that he obtains a favorable judgment therein which could also be attacked for having
been rendered without jurisdiction. The determination of the correct jurisdiction of a court is not a
simple matter. It can raise highly debatable issues of such importance that the highest tribunal of the
land is given the exclusive appellate jurisdiction to entertain the same. The point simply is that when
a party commits error in filing his suit or proceeding in a court that lacks jurisdiction to take
cognizance of the same, such act may not at once be deemed sufficient basis of estoppel. It could
have been the result of an honest mistake or of divergent interpretations of doubtful legal provisions.
If any fault is to be imputed to a party taking such course of action, part of the blame should be
placed on the court which shall entertain the suit, thereby lulling the parties into believing that they
pursued their remedies in the correct forum. Under the rules, it is the duty of the court to dismiss an
action "whenever it appears that court has no jurisdiction over the subject matter." (Section 2, Rule 9,
Rules of Court) Should the Court render a judgment without jurisdiction, such judgment may be
impeached or annulled for lack of jurisdiction (Sec. 30, Rule 132, Ibid), within ten (10) years from
the finality of the same (Art. 1144, par. 3, Civil Code).24
In the present case, no judgment has yet been rendered by the RTC. 25 As a matter of fact, as soon as
the petitioners discovered the alleged jurisdictional defect, they did not fail or neglect to file the
appropriate motion to dismiss. Hence, finding the pivotal element of laches to be absent, the
Sibonghanoy doctrine does not control the present controversy. Instead, the general rule that the
question of jurisdiction of a court may be raised at any stage of the proceedings must apply.
Therefore, petitioners are not estopped from questioning the jurisdiction of the RTC.
In any event, the petition for certiorari is bereft of merit.
Section 1 of Republic Act (R.A.) No. 7691, which took effect on April 15, 1994, provides inter alia
that where the amount of the demand in civil cases exceeds ₱100,000.00, 26 exclusive of interest,
damages of whatever kind, attorney’s fees, litigation expenses, and costs, the exclusive jurisdiction
thereof is lodged with in the RTC. Under Section 3 of the same law, where the amount of the demand
in the complaint does not exceed ₱100,000.00, exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs, the exclusive jurisdiction over the same is vested in the
Metropolitan Trial Court, MTC and Municipal Circuit Trial Court. The jurisdictional amount was
increased to ₱200,000.00,27 effective March 20, 1999, pursuant to Section 5 28 of R.A. No. 7691 and
Administrative Circular No. 21-99.
In Administrative Circular No. 09-94 dated March 14, 1994, the Court specified the guidelines in the
implementation of R.A. No. 7691. Paragraph 2 of the Circular provides:
2. The exclusion of the term "damages of whatever kind in determining the jurisdictional amount
under Section 19 (8) and Section 33 (1) of B.P. Blg. 129, as amended by R.A. No. 7691, applied to
cases where the damages are merely incidental to or a consequence of the main cause of action.
However, in cases where the claim for damages is the main cause of action, or one of the causes
of action, the amount of such claim shall be considered in determining the jurisdiction of the
court. (Emphasis supplied)
The well-entrenched principle is that the jurisdiction of the court over the subject matter of the action
is determined by the material allegations of the complaint and the law, irrespective of whether or not
the plaintiff is entitled to recover all or some of the claims or reliefs sought therein. 29 In the present
case, the allegations in the complaint plainly show that private respondent seeks to recover not only
his medical expenses, lost income but also damages for physical suffering and mental anguish due to
permanent facial deformity from injuries sustained in the vehicular accident. Viewed as an action for
quasi-delict, the present case falls squarely within the purview of Article 2219 (2), 30 which provides
for the payment of moral damages in cases of quasi-delict causing physical injuries.
Private respondent’s claim for moral damages of ₱500,000.00 cannot be considered as merely
incidental to or a consequence of the claim for actual damages. It is a separate and distinct cause of
action or an independent actionable tort. It springs from the right of a person to the physical integrity
of his or her body, and if that integrity is violated, damages are due and assessable.31 Hence, the
demand for moral damages must be considered as a separate cause of action, independent of the
claim for actual damages and must be included in determining the jurisdictional amount, in clear
consonance with paragraph 2 of Administrative Circular No. 09-94.
If the rule were otherwise, i.e., the court’s jurisdiction in a case of quasi-delict causing physical
injuries would only be based on the claim for actual damages and the complaint is filed in the MTC,
it can only award moral damages in an amount within its jurisdictional limitations, a situation not
intended by the framers of the law.
It must be remembered that moral damages, though incapable of pecuniary estimation, are designed
to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury
unjustly caused a person.32 Moral damages are awarded to enable the injured party to obtain means,
diversions or amusements that will serve to alleviate the moral suffering he/she has undergone, by
reason of the defendant’s culpable action. Its award is aimed at restoration, as much as possible, of
the spiritual status quo ante; thus, it must be proportionate to the suffering inflicted. Since each case
must be governed by its own peculiar circumstances, there is no hard and fast rule in determining the
proper amount.33
The petitioners’ reliance in the case of Movers-Baseco Integrated Port Services, Inc. vs. Cyborg
Leasing Corporation34 is misplaced. The claim for damages therein was based on a breach of a
contract of lease, not a quasi-delict causing physical injuries, as in this case. Besides, there was no
claim therein for moral damages. Furthermore, moral damages are generally not recoverable in
damage actions predicated on a breach of contract in view of the provisions of Article 222035 of the
Civil Code.
In view of the foregoing, the Court is convinced that the respondent RTC Judge committed no grave
abuse of discretion in issuing the assailed Orders dated April 17, 2000 and June 13, 2000.
WHEREFORE, the instant petition for certiorari is DISMISSED for lack of merit. The temporary
restraining order issued by this Court on August 9, 2000 is LIFTED.
The Regional Trial Court, Branch 56, San Carlos City is DIRECTED to continue with the trial
proceedings in Civil Case No. SCC-2240 and resolve the case with dispatch.
Costs against petitioners.
SO ORDERED.
G.R. No. 169700 July 30, 2009
APOLONIA BANAYAD FRIANELA, Petitioner,
vs.
SERVILLANO BANAYAD, JR., Respondent.
DECISION
NACHURA, J.:
Before the court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
June 17, 2005 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 53929, and the August 17,
2005 Resolution2 denying the motion for partial reconsideration thereof.
Narrated in brief are the antecedent facts and proceedings, to wit:
Following the death of her uncle, the testator Moises F. Banayad, petitioner, who was named as
devisee in the will, filed before the Regional Trial Court (RTC) of Pasay City, on June 3, 1991, Sp.
Proc. No. 3664-P3 for the allowance of the November 18, 1985 holographic will of the decedent.
Petitioner alleged that Moises died without issue and left to her the following properties, namely: (1)
a parcel of land situated in Pasay City and described in Transfer Certificate of Title No. 9741; (2)
images of Oracion del Huerto and Pieta including the crown; and (3) all personal belongings.4
Respondent, a cousin of the petitioner, filed his opposition and counter-petitioned for the allowance
of two other holographic wills of the decedent, one dated September 27, 1989 and another dated
September 28, 1989.5
After trial on the merits, the RTC, on September 29, 1995, rendered its Decision 6 declaring the
September 27, 1989 holographic will as having revoked the November 18, 1985 will, allowing the
former, and appointing respondent as administrator of Moises’s estate.7
On appeal, the CA, in the assailed June 17, 2005 Decision, 8 modified the decision of the trial court
and ruled that the September 27, 1989 holographic will had only revoked the November 18, 1985 will
insofar as the testamentary disposition of Moises’s real property was concerned. 9
With the denial of her motion for reconsideration in the further assailed August 17, 2005
Resolution,10 petitioner elevated the case before us via the instant petition.11
The Court notes that the trial court focused all of its attention on the merits of the case without first
determining whether it could have validly exercised jurisdiction to hear and decide Sp. Proc. No.
3664-P. On appeal, the appellate court also overlooked the issue on the jurisdictional competence of
the trial court over the said case. This Court, after a meticulous review of the records, finds that the
RTC of Pasay City had no jurisdiction over the subject matter in Sp. Proc. No. 3664-P.
The jurisdiction of the court to hear and decide a case is conferred by the law in force at the time of
the institution of the action unless such statute provides for a retroactive application thereof. 12
Jurisdiction is moreover determined by the allegations or averments in the complaint or petition.13
In this case, at the time the petition for the allowance of Moises’s holographic will was instituted, the
then Sections 19 and 3314 of Batas Pambansa (B.P.) Blg. 12915 were in force, thus—
SECTION 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original
jurisdiction:
xxxx
(4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds
twenty thousand pesos (₱20,000.00);
xxxx
SECTION 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases. — Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate,
including the grant of provisional remedies in proper cases, where the demand does not exceed
twenty thousand pesos exclusive of interest and costs but inclusive of damages of whatever kind, the
amount of which must be specifically alleged: Provided, That where there are several claims or
causes of action between the same or different parties, embodied in the same complaint, the amount
of the demand shall be the totality of the claims in all the causes of action irrespective of whether the
causes of action arose out of the same or different transactions; and
xxxx
The applicable law, therefore, confers jurisdiction on the RTC or the MTCs over probate proceedings
depending on the gross value of the estate,16 which value must be alleged in the complaint or petition
to be filed.1avvphi1 Significantly, in this case, the original petition docketed before the trial court
contains only the following averments:
xxxx
1. That Petitioner is of legal age, married, Filipino and residing at 2237 P. Burgos St.,
Pasay City who is named devisee in the Last Will and Testament of MOISES BANAYAD,
deceased who died in Pasay City General Hospital on March 27, 1991 xerox copy of his
death certificate is herewith attached as Annex "A" to form integral part hereof;
2. That the said Last Will and Testament is herewith (sic) attached as Annex "B" and made
an integral part of this Petition, the original thereof will be presented to this Honorable
Court at the time of probate;
3. That the decedent is an inhabitant of the Philippines and residing at 2237 P. Burgos St.,
Pasay City at the time of his death;
4. That the properties left by the decedent consist of real and personal properties
particularly described herein below, which decedent all bequeathed to petitioner;
A. A parcel of land described under TCT No. 9741 xerox copy of which is
herewith (sic) attached as Annex "C".
B. Imahen ng Oracion del Huerto at Pieta, kasama and korona.
 C. All personal belongings.
5. That the testator at the time of the execution of the said Will was of sound and disposing
mind.
WHEREFORE, it is most respectfully prayed of the Honorable Court that:
a. Upon proper notice and hearing, the above mentioned Will be admitted to probate;
b. That letters testamentary or administration be issued to herein petitioner without bond;
Petitioner prays for such other reliefs just and equitable in (sic) the premises.
x x x x17
Nowhere in the petition is there a statement of the gross value of Moises’s estate. Thus, from a
reading of the original petition filed, it cannot be determined which court has original and exclusive
jurisdiction over the proceedings.18 The RTC therefore committed gross error when it had
perfunctorily assumed jurisdiction despite the fact that the initiatory pleading filed before it did not
call for the exercise of its jurisdiction. The RTC should have, at the outset, dismissed the case for lack
of jurisdiction. Be it noted that the dismissal on the said ground may be ordered motu proprio by the
courts.19 Further, the CA, on appeal, should have dismissed the case on the same ground. Settled is
the doctrine that the issue of jurisdiction may be raised by any of the parties or may be reckoned by
the court, at any stage of the proceedings, even on appeal, and is not lost by waiver or by estoppel. 20
Despite the pendency of this case for around 18 years, the exception laid down in Tijam v.
Sibonghanoy21 and clarified recently in Figueroa v. People22 cannot be applied. First, because, as a
general rule, the principle of estoppel by laches cannot lie against the government. 23 No injustice to
the parties or to any third person will be wrought by the ruling that the trial court has no jurisdiction
over the instituted probate proceedings.
Second and most important, because in Tijam, the delayed invocation of lack of jurisdiction has been
made during the execution stage of a final and executory ruling of a court. In Figueroa, the Court has
emphasized that estoppel by laches only supervenes in exceptional cases similar to the factual milieu
in Tijam. It is well to note the following factual setting of Tijam:
On July 19, 1948 — barely one month after the effectivity of Republic Act No. 296 known as the
Judiciary Act of 1948 — the spouses Serafin Tijam and Felicitas Tagalog commenced Civil Case No.
R-660 in the Court of First Instance of Cebu against the spouses Magdaleno Sibonghanoy and Lucia
Baguio to recover from them the sum of P1,908.00, with legal interest thereon from the date of the
filing of the complaint until the whole obligation is paid, plus costs. As prayed for in the complaint, a
writ of attachment was issued by the court against defendants' properties, but the same was soon
dissolved upon the filing of a counter-bond by defendants and the Manila Surety and Fidelity Co.,
Inc. hereinafter referred to as the Surety, on the 31st of the same month.
After being duly served with summons the defendants filed their answer in which, after making some
admissions and denials of the material averments of the complaint, they interposed a counterclaim.
This counterclaim was answered by the plaintiffs.1avvphi1
After trial upon the issues thus joined, the Court rendered judgment in favor of the plaintiffs and,
after the same had become final and executory, upon motion of the latter, the Court issued a writ of
execution against the defendants. The writ having been returned unsatisfied, the plaintiffs moved for
the issuance of a writ of execution against the Surety's bond (Rec. on Appeal pp. 46-49), against
which the Surety filed a written opposition (Id. pp. 49) upon two grounds, namely, (1) Failure to
prosecute and (2) Absence of a demand upon the Surety for the payment of the amount due under the
judgment. Upon these grounds the Surety prayed the Court not only to deny the motion for execution
against its counter-bond but also the following affirmative relief: "to relieve the herein bonding
company of its liability, if any, under the bond in question" (Id. p. 54) The Court denied this motion
on the ground solely that no previous demand had been made on the Surety for the satisfaction of the
judgment. Thereafter the necessary demand was made, and upon failure of the Surety to satisfy the
judgment, the plaintiffs filed a second motion for execution against the counter-bond. On the date set
for the hearing thereon, the Court, upon motion of the Surety's counsel, granted the latter a period of
five days within which to answer the motion. Upon its failure to file such answer, the Court granted
the motion for execution and the corresponding writ was issued.
Subsequently, the Surety moved to quash the writ on the ground that the same was issued without the
required summary hearing provided for in Section 17 of Rule 59 of the Rules of Court. As the Court
denied the motion, the Surety appealed to the Court of Appeals from such order of denial and from
the one denying its motion for reconsideration (Id. p. 97). Its record on appeal was then printed as
required by the Rules, and in due time it filed its brief raising therein no other question but the ones
covered by the following assignment of errors:
"I. That the Honorable Court a quo erred in issuing its order dated November 2, 1957, by
holding the incident as submitted for resolution, without a summary hearing and
compliance with the other mandatory requirements provided for in Section 17, Rule 59 of
the Rules of Court.
"II. That the Honorable Court a quo erred in ordering the issuance of execution against the
herein bonding company-appellant.
"III. That the Honorable Court a quo erred in denying the motion to quash the writ of
execution filed by the herein bonding company- appellant as well as its subsequent motion
for reconsideration, and/or in not quashing or setting aside the writ of execution."
Not one of the assignment of errors — it is obvious raises the question of lack of jurisdiction, neither
directly nor indirectly.
Although the appellees failed to file their brief, the Court of Appeals, on December 11, 1962, decided
the case affirming the orders appealed from.
On January 8, 1963 — five days after the Surety received notice of the decision, it filed a motion
asking for extension of time within which to file a motion for reconsideration. The Court of Appeals
granted the motion in its resolution of January 10 of the same year. Two days later the Surety filed a
pleading entitled MOTION TO DISMISS, alleging substantially that appellees' action was filed in the
Court of First Instance of Cebu on July 19, 1948 for the recovery of the sum of P1,908.00 only; that a
month before that date Republic Act No. 296, otherwise known as the Judiciary Act of 1948, had
already become effective, Section 88 of which placed within the original exclusive jurisdiction of
inferior courts all civil actions where the value of the subject-matter or the amount of the demand
does not exceed P2,000.00, exclusive of interest and costs; that the Court of First Instance therefore
had no jurisdiction to try and decide the case. Upon these premises the Surety's motion prayed the
Court of Appeals to set aside its decision and to dismiss the case. By resolution of January 16, 1963
the Court of Appeals required the appellees to answer the motion to dismiss, but they failed to do so.
Whereupon, on May 20 of the same year, the Court resolved to set aside its decision and to certify the
case to Us.
x x x x24
Clearly, then, in Tijam, the issue of lack of jurisdiction has only been raised during the execution
stage, specifically when the matter of the trial court’s denial of the surety’s motion to quash the writ
of execution has been brought to the appellate court for review. Here, the trial court’s assumption of
unauthorized jurisdiction over the probate proceedings has been discovered by the Court during the
appeal stage of the main case, not during the execution stage of a final and executory decision. Thus,
the exceptional rule laid down in Tijam cannot apply.
Since the RTC has no jurisdiction over the action, all the proceedings therein, including the decision
rendered, are null and void.25 With the above disquisition, the Court finds it unnecessary to discuss
and resolve the other issues raised in the petition.
IN THE LIGHT OF THE FOREGOING, Sp. Proc. No. 3664-P before the Regional Trial Court of
Pasay City is DISMISSED for lack of jurisdiction.
SO ORDERED.
G.R. No. 204444 January 14, 2015
VIRGILIO C. BRIONES, Petitioner,
vs.
COURT OF APPEALS and CASH ASIA CREDIT CORPORATION, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for certiorari1 are the Decision2 dated March 5, 2012 and the Resolution3
dated October 4, 2012 of the Court of Appeals (CA) in CA-G.R. SP No. 117474, which annulled the
Orders dated September 20, 20104 and October 22, 20105 of the Regional Trial Court of Manila,
Branch 173 (RTC) in Civil Case No. 10-124040, denying private respondent Cash Asia Credit
Corporation's (Cash Asia) motion to dismiss on the ground of improper venue.
The Facts
The instant case arose from a Complaint6 dated August 2, 2010 filed by Virgilio C. Briones (Briones)
for Nullity of Mortgage Contract, Promissory Note, Loan Agreement, Foreclosure of Mortgage,
Cancellation of Transfer Certificate of Title (TCT) No. 290846, and Damages against Cash Asia
before the RTC.7 In his complaint, Briones alleged that he is the owner of a property covered by TCT
No. 160689 (subject property), and that, on July 15, 2010, his sister informed him that his property
had been foreclosed and a writ of possession had already been issued in favor of Cash Asia. 8 Upon
investigation, Briones discovered that: (a) on December 6, 2007, he purportedly executed a
promissory note,9 loan agreement,10 and deed of real estate mortgage11 covering the subject property
(subject contracts) in favor of Cash Asia in order to obtain a loan in the amount of ₱3,500,000.00
from the latter;12 and (b) since the said loan was left unpaid, Cash Asia proceeded to foreclose his
property.13 In this relation, Briones claimed that he never contracted any loans from Cash Asia as he
has been living and working in Vietnam since October 31, 2007. He further claimed that he only went
back to the Philippines on December 28, 2007 until January 3, 2008 to spend the holidays with his
family, and that during his brief stay in the Philippines, nobody informed him of any loan agreement
entered into with Cash Asia. Essentially, Briones assailed the validity of the foregoing contracts
claiming his signature to be forged.14
For its part, Cash Asia filed a Motion to Dismiss15 dated August 25, 2010, praying for the outright
dismissal of Briones’s complaint on the ground of improper venue. 16 In this regard, Cash Asia
pointed out the venue stipulation in the subject contracts stating that "all legal actions arising out of
this notice in connection with the Real Estate Mortgage subject hereof shall only be brought in or
submitted tothe jurisdiction of the proper court of Makati City."17 In view thereof, it contended that
all actions arising out of the subject contracts may only be exclusively brought in the courts of Makati
City, and as such, Briones’s complaint should be dismissed for having been filed in the City of
Manila.18
In response, Briones filed an opposition,19 asserting, inter alia, that he should not be covered by the
venue stipulation in the subject contracts as he was never a party therein. He also reiterated that his
signatures on the said contracts were forgeries.20
The RTC Ruling
In an Order21 dated September 20, 2010, the RTC denied Cash Asia’s motion to dismiss for lack of
merit. In denying the motion, the RTC opined that the parties must be afforded the right to be heard
in view of the substance of Briones’s cause of action against Cash Asia as stated in the complaint.22
Cash Asia moved for reconsideration23 which was, however, denied in an Order24 dated October 22,
2010. Aggrieved, it filed a petition for certiorari25 before the CA.
The CA Ruling
In a Decision26 dated March 5, 2012, the CA annulled the RTC Orders, and accordingly, dismissed
Briones’s complaint without prejudice to the filing of the same before the proper court in Makati
City.27 It held that the RTC gravely abused its discretion in denying Cash Asia’s motion to dismiss,
considering that the subject contracts clearly provide that actions arising therefrom should be
exclusively filed before the courts of Makati City only.28 As such, the CA concluded that Briones’s
complaint should have been dismissed outright on the ground of improper venue, 29 this,
notwithstanding Briones’s claim of forgery.
Dissatisfied, Briones moved for reconsideration,30 which was, however, denied in a Resolution31
dated October 4, 2012, hence, this petition.
The Issue Before the Court
The primordial issue for the Court’s resolution is whether or not the CA gravely abused its discretion
in ordering the outright dismissal of Briones’s complaint on the ground of improper venue.
The Court’s Ruling
The petition is meritorious.
At the outset, the Court stresses that "[t]o justify the grant of the extraordinary remedy of certiorari,
[the petitioner] must satisfactorily show that the court or quasi-judicial authority gravely abused the
discretion conferred upon it. Grave abuse of discretion connotes judgment exercised in a capricious
and whimsical manner that is tantamount to lack of jurisdiction. To be considered ‘grave,’ discretion
must be exercised in a despotic manner by reason of passion or personal hostility, and must be so
patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined by or to act at all in contemplation of law."32 Guided by the foregoing considerations, the
Court finds that the CA gravely abused its discretion in ordering the outright dismissal of Briones’s
complaint against Cash Asia, without prejudice to its re-filing before the proper court in Makati City.
Rule 4 of the Rules of Court governs the rules on venue of civil actions, to wit:
SEC. 3. Venue of actions against nonresidents. — If any of the defendants does not resideand is not
found in the Philippines, and the action affects the personal status of the plaintiff, or any property of
said defendant located in the Philippines,the action may be commenced and tried in the court of the
place where the plaintiff resides, or where the property or any portion thereof is situated or found.
SEC. 4. When Rule not applicable. — This Rule shall not apply –
(a) In those cases where a specific rule or law provides otherwise; or
(b) Where the parties have validly agreed in writing before the filing of the action on the
exclusive venue thereof.
Based therefrom, the general rule is that the venue of real actions is the court which has jurisdiction
over the area wherein the real property involved, or a portion thereof, is situated; while the venue of
personal actions is the court which has jurisdiction where the plaintiff or the defendant resides, at the
election of the plaintiff. As an exception, jurisprudence in Legaspi v. Rep. of the Phils.33 instructs that
the parties, thru a written instrument, may either introduce another venue where actions arising from
such instrument may be filed, or restrict the filing of said actions in a certain exclusive venue, viz.:
The parties, however, are not precluded from agreeing in writing on an exclusive venue, as qualified
by Section 4 of the same rule. Written stipulations as to venue may be restrictive in the sense that the
suit may be filed only in the place agreed upon, or merely permissive in that the parties may file their
suitnot only in the place agreed upon but also in the places fixed by law. As in any other agreement,
what is essential is the ascertainment of the intention of the parties respecting the matter.
As regards restrictive stipulations on venue, jurisprudence instructs that it must be shown thatsuch
stipulation is exclusive.1âwphi1 In the absence of qualifying or restrictive words, such as
"exclusively," "waiving for this purpose any other venue," "shall only" preceding the designation of
venue, "to the exclusion of the other courts," or words of similar import, the stipulation should be
deemed as merely an agreement on an additional forum,not as limiting venue to the specified place. 34
(Emphases and underscoring supplied)

Rule
VENUE OF ACTIONS
SECTION 1. Venue of real actions. — Actions affecting title to or possession of real property, or
interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the
municipality or city wherein the real property involved, or a portion thereof, is situated.
SEC. 2. Venue of personal actions. — All other actions may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant where he may be found, at the election
of the plaintiff.
4 In this relation, case law likewise provides that in cases where the complaint assails only the terms,
conditions, and/or coverage of a written instrument and not its validity, the exclusive venue
stipulation contained therein shall still be binding on the parties, and thus, the complaint may be
properly dismissed on the ground of improper venue. 35 Conversely, therefore, a complaint directly
assailing the validity of the written instrument itself should not be bound by the exclusive venue
stipulation contained therein and should be filed in accordance with the general rules on venue. To be
sure, it would be inherently consistent for a complaint of this nature to recognize the exclusive venue
stipulation when it, in fact, precisely assails the validity of the instrument in which such stipulation is
contained.
In this case, the venue stipulation found in the subject contracts is indeed restrictive in nature,
considering that it effectively limits the venue of the actions arising therefrom to the courts of Makati
City. However, it must be emphasized that Briones' s complaint directly assails the validity of the
subject contracts, claiming forgery in their execution. Given this circumstance, Briones cannot be
expected to comply with the aforesaid venue stipulation, as his compliance therewith would mean an
implicit recognition of their validity. Hence, pursuant to the general rules on venue, Briones properly
filed his complaint before a court in the City of Manila where the subject property is located.

In conclusion, the CA patently erred and hence committed grave abuse of discretion in dismissing
Briones's complaint on the ground of improper venue.

WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated March 5, 2012 and the
Resolution dated October 4, 2012 of the Court of Appeals in CA-G.R. SP No. 117474 are hereby
ANNULLED and SET ASIDE. The Orders dated September 20, 2010 and October 22, 2010 of the
Regional Trial Court of Manila, Branch 173 in Civil Case No. 10-124040 are REINSTATED.

SO ORDERED.