RULING: NO.

LA TONDEÑA DISTILLERS, INC., petitioner, vs. THE HON. JUDGE BERNARDO

T. PONFERRADA, JOAQUIN T. GOCHANGCO, ENRIQUE DY, QUINTIN DY, LITO
ONG, JERRY ONG and LUIS T. ONG, respondents
G.R. No. 109656, November 21, 1996
DOCTRINES:
 An order denying a motion to dismiss is only interlocutory which is
neither appealable until final judgment, nor could it generally be assailed
on certiorari.
 Second, the extraordinary remedy of certiorari can be availed of only if
the denial of the motion constitutes grave abuse of discretion.
 A complaint for specific performance with damages involving real
property, was held to be a personal action, which may be filed in the
proper court where the party resides.
FACTS:
Several persons (herein referred to as defendants) reneged on their contract
to sell to private respondents a parcel of land located in Bago City. This breach
prompted private respondents to file on August 25, 1987 before the Regional Trial
Court (RTC) of Bacolod City an action for specific performance with damages
against defendants. A notice of lis pendens was annotated on the latter’s title although
the same was later cancelled upon defendants filing a bond.
Pending the trial before the lower court on November, 1991, La Tondeña
Distillers, Inc (petitioner) bought the above lot from defendants. Aggrieved, private
respondents amended their complaint and impleaded petitioner as an additional
defendant alleging that petitioner was not a buyer in good faith.
Subsequently, petitioner filed a motion to dismiss the amended complaint on
two grounds: no cause of action and improper venue. In support of the first ground,
petitioner asserts that it is a buyer in good faith since the notice of lis pendens was
already cancelled when it bought the lot. As for the second ground, petitioner argued
that venue should be in Bago City where the lot is located and not in Bacolod City;
However, the lower court denied petitioner’s motion as there was need for the
parties to present evidence on the question of good faith. Petitioner also filed a motion
for reconsideration but it was also denied on January 20, 1993.
More than three (3) months later, or on April 21, 1993, petitioner went directly
to the Supreme Court via petition for certiorari under Rule 65 assailing the denial of its
motions. On November 24, 1993, the court granted its petition. After the parties
submitted their respective memoranda as directed, petitioner filed a manifestation
alleging for the first time that it sold the lot sometime in September, 1992 to Distileria
Bago, Inc. a separate entity with which the former has substantial stockholdings.
Based on such admission, private respondents moved to dismiss the instant
petition, arguing that petitioner is no longer a real party in interest, having sold the lot.
ISSUE: Whether or not it was proper for the petitioner to file a petition for certiorari
under Rule 65 after the lower court denied his Motion to Dismiss.
The petition should be dismissed because of the following reasons:
NOT FILED ON TIME
It was filed beyond the reasonable period. It was filed after more than three
months from the time petitioner received a copy of the assailed RTC resolutions.
NATURE OF A MOTION TO DISMISS
However, even if the petition was filed on time, it must still be dismissed
because an order denying a motion to dismiss is only interlocutory which is
neither appealable until final judgment, nor could it generally be assailed
on certiorari. The remedy of the aggrieved party is to file an answer pursuant to Sec.
4, Rule 16, and interpose as defenses, the objections raised in his motion to dismiss,
proceed to trial, and in case of an adverse decision, elevate the whole case by appeal
in due time.
WHEN TO AVAIL THE EXTRAORDINARY REMEDY OF CERTIORARI
The extraordinary remedy of certiorari can be availed of only if the denial of
the motion constitutes grave abuse of discretion. In the case at bar, the lower court
did not abuse its discretion in deferring action on the motion. Section 3 of Rule 16
sanctions deferment of hearing on the motion until the trial if the ground alleged does
not appear to be indubitable. Clearly respondent judge had doubts on the allegation
of petitioner’s good faith. This is a question of fact which necessitates presentation
of evidence and is certainly far from indubitable. It is within the discretion of the court
to defer action if the ground alleged does not appear to be indubitable and that
deferment is only deemed a provisional denial of the motion to dismiss.
THE PROPER VENUE OF THE COMPLAINT: RTC OF BACOLOD CITY, not in
BAGO CITY
The Court was not also persuaded by petitioner’s argument that venue should be
lodged in Bago City where the lot is situated. The complaint is one for specific
performance with damages. Private respondents do not claim ownership of the
lot but in fact recognized title of defendants by annotating a notice of lis pendens.
In one case, a similar complaint for specific performance with damages involving real
property, was held to be a personal action, which may be filed in the proper court where
the party resides. Not being an action involving title to or ownership of real property,
venue, in this case, was not improperly laid before the RTC of Bacolod City.
The Court also reiterated that the extraordinary remedy of certiorari is not
intended to be a tool to delay litigation and must be resorted to only in cases of
manifest grave abuse of discretion. The present case does not call for such
extraordinary remedy.
 ADEZ REALTY, INCORPORATED, Petitioner, v. HONORABLE COURT OF
APPEALS, THE PRESIDING JUDGE OF BRANCH 79, REGIONAL TRIAL COURT,
Morong, Rizal, THE PROVINCIAL SHERIFF OF RIZAL, Morong, Rizal, THE
REGISTER OF DEEDS, Quezon City, and AGUEDO EUGENIO, Respondents
G.R. No. 100643, August 14, 1992
DOCTRINES:
• The finality of judgment becomes a fact upon the lapse of the reglementary
period of appeal if no appeal is perfected. x x x It is settled jurisprudence that
once a decision becomes final, the Court can no longer amend, modify,
much less set aside the same.
• As early as 1910, in Grey Alba v. De la Cruz, the Court already ruled that land
registration proceedings are proceedings in rem, not in personam, and
therefore it is not necessary to give personal notice to the owners or
claimants of the land sought to be registered, in order to vest the courts with
power or authority over the res. Thus, while it may be true that no notice was
sent by registered mail to petitioner when the judicial reconstitution of title
was sought, such failure, however, did not amount to a jurisdictional defect.
x x x Thus, notice of hearing by proper publication in the Official Gazette is
sufficient to clothe the court with jurisdiction, and the mere fact that a person
purporting to have a legitimate claim in the property did not receive personal
notice is not sufficient ground to invalidate the proceedings.
• A party cannot, by varying the form of action or adopting a different method
of presenting his case, escape the operation of the principle that one and the
same cause of action shall not be twice litigated.
FACTS:
Adez Realty Incorporated filed before the Court of Appeals a petition
(docketed as CA-G.R. SP No. 23773) seeking to annul the order of the RTC of Morong,
Rizal (referred in this case as accused-appellant), dated November 20, 1984. The order
allowed the reconstitution of Transfer Certificate of Title No. 12662. The petition
likewise sought to set aside in effect the decision of the Court of Appeals in CA-G.R.
CV No. 21392 dated July 31, 1990.
However, respondent Court of Appeals dismissed the petition for lack of merit
on April 30, 1991. Petitioner’s Motion for Reconsideration was also denied on June 26,
1991. In dismissing the petition, the CA reasoned out that:
(a) the petition is a reiteration of the issues raised before it 2 earlier in CA-G.R. CV
No. 21392, promulgated July 31, 1990, and since no motion for reconsideration or
appeal by certiorari with the Supreme Court was filed, the same became final and
executory, and consequently entered in the judgment book on October 11, 1990;
and,
(b) the accused-appellant of Morong, Rizal, had jurisdiction over the subject
matter, the issue then being one of venue and not of jurisdiction, which can be
waived if not timely objected to in a motion to dismiss, pursuant to Sec. 4, Rule 4,
of the Rules of Court.
ISSUES: Whether or not it was proper for the Court of Appeals to dismiss the petition
of Adez Realty, Inc.
RULING: YES.
THE DECISION OF THE COURT OF APPEALS IN CA-G.R. CV NO. 21392 HAD
ALREADY BECAME FINAL AND EXECUTORY. JUDGMENT BECOMES FINAL
UPON LAPSE OF REGLEMENTARY PERIOD OF APPEAL AND NO APPEAL
PERFECTED.
Petitioner fails to refute the ruling of respondent appellate court that the issues
in the intent case had been previously raised before and decided upon the Court of
Appeals in CA-G.R. CV No. 21392, which decision became final and executory, and in
fact already entered in the judgment book by reason of petitioner’s failure to seasonably
file an appeal or a motion for reconsideration.
This is fatal for petitioner. It has been repeatedly held that finality of judgment
becomes a fact upon the lapse of the reglementary period of appeal if no appeal is
perfected. The decision therefore of the Court of Appeals in CA-G.R. CV No. 21392
had attained finality, there being no appeal nor motion for reconsideration interposed.
Likewise, it is settled jurisprudence that once a decision becomes final, the
Court can no longer amend, modify, much less set aside the same. In fact, in Dueñas
v. Mandi, the Court held that the "trial court and the appellate court may have committed
an error in the assignment or partition of the eight parcels of land to the parties in this
case, but considering that their judgments are now final, the error, assuming that one
was committed, can no longer be amended or corrected." In Icao v. Apalisok, the Court
ruled that even the subsequent discovery of an erroneous imposition of a penalty will
not justify correction of the judgment after it has become final. We have also declared
that, subject to settled exceptions, once a judgment becomes final, all the issues
between the parties are deemed resolved and laid to rest. To allow the Court of amend
or reverse a decision which has attained finality will result in endless litigations. Indeed,
every litigation, CA-G.R. CV No. 21392 included, must come to an end.
Moreover, petitioner already had the opportunity to set aside the questioned
order of the trial court when its Motion to Set Aside and/or Annul the Order of
Reconstitution, filed more than a year after the issuance of the questioned order, was
granted by the trial court, however erroneous may be the procedure pursued and the
consequently relief granted. Petitioner then simply failed to maintain vigilance over its
perceived rights when it did not file a timely appeal from the adverse decision of the
appellate court, thus allowing the said decision to become final.
NATURE OF A LAND REGISTRATION PROCEEDING
As early as 1910, in Grey Alba v. De la Cruz, the Court already ruled that land
registration proceedings are proceedings in rem, not in personam, and therefore
it is not necessary to give personal notice to the owners or claimants of the land
sought to be registered, in order to vest the courts with power or authority over
the res. Thus, while it may be true that no notice was sent by registered mail to
petitioner when the judicial reconstitution of title was sought, such failure, however, did
not amount to a jurisdictional defect.
In Register of Deeds of Malabon v. RTC, Malabon, Metro Manila, Br. 170, 12, the Court
held that:
x x x
‘After trial on the merits, the lower court rendered the questioned order dated
November 20, 1984, without notice to the actual occupants of the property,
Adez Realty, granting the applicant’s petition for reconstitution in the name of the
deceased Elias Eugenio’"
However, the phrase "without notice to the actual occupants of the property,
Adez Realty, in the above quoted second paragraph on page 3 of the Petition for
Review, is not found in the decision penned by Associate Justice Manuel C. Herrera
for respondent Court of Appeals. It now appears as part of a material statement of fact
in the decision of the court a quo when actually it is not. This is a prima facie case of
attempting to mislead the Court, a serious offense which constitutes willful disregard of
a lawyer’s solemn duty to act at all times in a manner consistent with truth.

" [t]he purpose of the publication of the notice of the petition for reconstitution in
the Official Gazette is to apprise the whole world that such a petition has been filed
and that whoever is minded to oppose it for good cause may do so within thirty
(30) days before the date set by the court for hearing the petition. It is the
publication of such notice that brings in the whole world as a party in the case and
vests the court with jurisdiction to hear and decide it."

Thus, notice of hearing by proper publication in the Official Gazette is sufficient

to clothe the court with jurisdiction, and the mere fact that a person purporting to have
a legitimate claim in the property did not receive personal notice is not sufficient ground
to invalidate the proceedings.

RES JUDICATA

CA-G.R. SP No. 23773 merely re-echoes the issues raised in CA-G.R. CV

No. 21392 which as become res judicata. Petitioner’s action to annul the order of the
trial court allowing reconstitution duplicates its earlier motion to set aside the said order,
which was granted but later reversed by the appellate court — which reversal became
final and executory due to petitioner’s failure to file an appeal within the reglementary
period. A party cannot, by varying the form of action or adopting a different method of
presenting his case, escape the operation of the principle that one and the same cause
of action shall not be twice litigated.

MISREPRESENTATION BY THE LAWYER

Meanwhile, the Court adverts to the Petition for Review filed in behalf of petitioner Adez
Realty, Inc., by ATTY. BENJAMIN M. DACANAY. On pages 2-4 of the Petition, counsel
purports to quote, as he does, the questioned decision when he alleges —

"The facts of the case, as found by the Court of Appeals, are the following:
 FORTUNATO GOMEZ and AURORA GOMEZ, petitioners, vs. COURT OF
APPEALS, ADOLFO TROCINO and MARIANO TROCINO, respondents
G.R. No. 127692. March 10, 2004
DOCTRINES:
 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. Any judgment without such
service in the absence of a valid waiver is null and void.
FACTS:
 A petition for review on certiorari under Rule 45 of the Rules of Court
 Civil Case No. CEB-11103 is an action for specific performance and/or
rescission filed by herein petitioners, spouses Fortunato and Aurora Gomez,
against the heirs of Jesus J. Trocino, Sr., which include herein respondents
and their mother Caridad Trocino. It was filed on December 16, 1991. The
complaint alleges the following:
Some time in 1975, the spouses Jesus and Caridad Trocino mortgaged two
parcels of land covered by TCT Nos. 10616 and 31856 to Dr. Clarence
Yujuico. The mortgage was subsequently foreclosed and the properties
sold at public auction on July 11, 1988, and before the expiry of the
redemption period, the spouses Trocino sold the property to petitioners
on December 12, 1989, who in turn, redeemed the same from Dr.
Yujuico. The spouses Trocino, however, refused to convey ownership of the
properties to petitioners, hence, the complaint.
 On January 10, 1992, the trial court’s Process Server Delfin D. Barnido served
summons on respondents, in the manner described in his Return of Service,
to wit:
Respectfully returned to the Branch Clerk of Court, Regional Trial Court of
Cebu, Branch 10, the herein attached original summons issued in the
above-entitled case with the information that on January 8, 1992 summons
and copies of the complaint were served to the defendants Jacob, Jesus
Jr., Adolfo, Mariano, Consolacion, Alice, Racheal thru defendant
Caridad Trocino at their given address at Maria Cristina Extension
(besides Sacred Heart School for Girls), Cebu City, evidence by her
signature found at the lower portion of the original summons.
 On January 27, 1992, the defendants, through their counsel Atty. Expedito P.
Bugarin, filed their Answer. Defendant Caridad A. Trocino, respondent’s
mother, verified said pleading.
RTC DECISION
 In May 1993, ruled in favor of the plaintiffs and against the
defendants:
 The defendants were ordered to execute a Deed of Sale in favor of
the plaintiffs and to deliver the owners duplicate copies of TCT Nos.
10616 and 31856, covering the properties sold, to the plaintiffs within ten
(10) days from the finality of the judgment, after which plaintiffs shall pay
in turn to the defendants the balance of P2,000,000.00. Otherwise, the
sale is rescinded and revoked and the defendants are directed to return
to the plaintiffs the amount of P500,000.00, with interest of 12% per
annum computed from December 6, 1989, until the full amount is paid.
 Also to pay damages, attorney’s fees, and litigation expenses.
 However, the defendants failed to deliver the owners duplicate of TCT Nos.
10616 and 31856. Thus, the RTC issued an order on August 29,
1995 declaring said titles null and void, and ordering the Register of Deeds of
Cebu City to issue new titles in the name of herein petitioners.
 Thereafter, on March 13, 1996, respondents Adolfo and Mariano Trocino filed
with the Court of Appeals, a petition for the annulment of the judgment
rendered by the RTC-Cebu (Branch 10) in Civil Case No. CEB-11103. Private
respondents alleged that the trial court’s decision is null and void on the
ground that it did not acquire jurisdiction over their persons as they
were not validly served with a copy of the summons and the
complaint. According to them, at the time summons was served on them,
Adolfo Trocino was already in Ohio, U.S.A., and has been residing there for
25 years, while Mariano Trocino was in Talibon, Bohol, and has been residing
there since 1986. They also refuted the receipt of the summons by Caridad A.
Trocino, and the representation made by Atty. Bugarin in their
behalf. Respondents also contended that they have a meritorious defense.
COURT OF APPEALS DECISION: Annulled the decision of the RTC-Cebu (Branch
10).
ISSUE: Whether or not summons were properly served on respondents.
RULING: No.
DEFINITION OF 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. Any judgment without such service in the absence of a valid waiver is null and
void.
NATURE OF THE PETITION IN THE CASE AT BAR: ACTION IN PERSONAM
Distinguishing whether an action is in personam, in rem, or quasi in rem
 Important to distinguish because the rules on service of summons under Rule
14 of the Rules of Court of the Philippines apply according to the nature of the
action.
a) ACTION IN PERSONAM
  Summons on the defendant must be served by handing a copy thereof
to the defendant in person, or, if he refuses to receive it, by tendering
it to him. This is specifically provided in Section 7, Rule 14 of the Rules of
Court,[14] which states:
SEC. 7. Personal service of summons.-- The summons shall be served
by handing a copy thereof to the defendant in person or, if he refuses to
receive it, by tendering it to him.
If efforts to find defendant personally makes prompt service impossible,
substituted service may be effected by leaving copies of the summons at
the defendant's dwelling house or residence with some person of suitable
age and discretion then residing therein, or by leaving the copies at the
defendant's office or regular place of business with some competent
person in charge thereof.[15] In substituted service, it is mandated that the
fact of impossibility of personal service should be explained in the proof
of service.
 When the defendant in an action in personam is a non-resident who does
not voluntarily submit himself to the authority of the court, personal service
of summons within the State is essential to the acquisition of
jurisdiction over his person. This cannot be done if the defendant is not
physically present in the country, and thus, the court cannot acquire
jurisdiction over his person and therefore cannot validly try and decide the
case against him.
 EXCEPTION: Gemperle vs. Schenker wherein service of summons
through the non-residents wife, who was a resident of the Philippines,
was held valid, as the latter was his representative and attorney-in-
fact in a prior civil case filed by the non-resident, and the second
case was merely an offshoot of the first case.
b) ACTIONS IN REM OR QUASI IN REM
 Jurisdiction over the person of the defendant is not a prerequisite to
confer jurisdiction on the court provided that the court acquires
jurisdiction over the res, although summons must be served upon the
defendant in order to satisfy the due process requirements.
 Thus, where the defendant is a non-resident who is not found in the
Philippines, and
(1) the action affects the personal status of the plaintiff;
(2) the action relates to, or the subject matter of which is property in the
Philippines in which the defendant has or claims a lien or interest;
(3) the action seeks the exclusion of the defendant from any interest in the
property located in the Philippines; or
(4) the property of the defendant has been attached in the Philippines,
summons may be served extraterritorially by:
(a) personal service out of the country, with leave of court;
(b) publication, also with leave of court; or
(c) any other manner the court may deem sufficient.
In the case at bar, it is an ACTION IN PERSONAM.
Petitioners cause of action in Civil Case No. CEB-11103 is anchored on the claim
that the spouses Jesus and Caridad Trocino reneged on their obligation to convey
ownership of the two parcels of land subject of their sale. Thus, petitioners pray in their
complaint that the spouses Trocino be ordered to execute the appropriate deed of sale
and that the titles be delivered to them (petitioners); or in the alternative, that the sale
be revoked and rescinded; and spouses Trocino ordered to return to petitioners their
down payment in the amount of P500,000.00 plus interests. The action instituted by
petitioners affect the parties alone, not the whole world. Hence, it is an action in
personam, i.e., any judgment therein is binding only upon the parties properly
impleaded.
Contrary to petitioner’s belief, the complaint they filed for specific performance
and/or rescission is not an action in rem. While it is a real action because it affects title
to or possession of the two parcels of land covered by TCT Nos. 10616 and 31856, it
does not automatically follow that the action is already one in rem.
Difference between and action in personam, and action in rem (Hernandez vs.
Rural Bank of Lucena, Inc.,)
ACTION IN PERSONAM ACTION IN REM
In a real action, the plaintiff seeks the
recovery of real property, or, as
In a personal action, the plaintiff seeks indicated in section 2(a) of Rule 4, a
the recovery of personal property, the real action is an action affecting title to
enforcement of a contract or the real property or for the recovery of
recovery of damages possession, or for partition or
condemnation of, or foreclosure of a
mortgage on, real property.
An action in rem is an action against the
An action in personam is an action thing itself, instead of against the
against a person on the basis of his person. Hence, a real action may at the
personal liability same time be an action in personam
and not necessarily an action in rem.
The objective sought in petitioners complaint was to establish a claim against
respondents for their alleged refusal to convey to them the title to the two parcels of
land that they inherited from their father, Jesus Trocino, who was one of the sellers of
the properties to petitioners. Hence, to repeat, Civil Case No. CEB-11103 is an action in
personam because it is an action against persons, namely, herein respondents, on the
basis of their personal liability. As such, personal service of summons upon the
defendants is essential in order for the court to acquire of jurisdiction over their
persons.
SERVICE OF SUMMONS ON RESPONDENTS ADOLFO TROCINO AND MARIANO Since the defendant heirs are co-defendants, the trial court should have
TROCINO. ADOLFO TROCINO verified the extent of Atty. Bugarin’s authority when petitioners failed to appear
as early as the pre-trial stage, where the parties are required to appear. The
Adolfo Trocino absence of the defendant heirs should have prompted the trial court to inquire
from the lawyer whether he was also representing the other petitioners. As co-
Already a resident of Ohio, U.S.A. for 25 years. Being a non-resident, the defendant and co-heirs over the disputed properties, the defendant heirs had
court cannot acquire jurisdiction over his person and validly try and decide the
every right to be present during the trial. Only Caridad Trocino appeared and
case against him.
testified on her own behalf. All the defenses raised were her own, not the
Mariano Trocino defendant heirs.

Has been in Talibon, Bohol since 1986. To validly acquire jurisdiction over
his person, summons must be served on him personally, or through substituted
service, upon showing of impossibility of personal service. Such impossibility, and
why efforts exerted towards personal service failed, should be explained in the proof of
service. The pertinent facts and circumstances attendant to the service of summons
must be stated in the proof of service or Officers Return. Failure to do so would
invalidate all subsequent proceedings on jurisdictional grounds.
In the present case, the process server served the summons and copies of
the complaint on respondents Jacob, Jesus, Jr., Adolfo, Mariano, Consolacion, Alice
and Racheal, through their mother, Caridad Trocino. The return did not contain
any particulars as to the impossibility of personal service on Mariano Trocino
within a reasonable time. Such improper service renders the same ineffective.
Due process of law requires personal service to support a personal judgment,
and, when the proceeding is strictly in personam brought to determine the personal
rights and obligations of the parties, personal service within the state or a voluntary
appearance in the case is essential to the acquisition of jurisdiction so as to constitute
compliance with the constitutional requirement of due process.
Moreover, inasmuch as the sheriff’s return failed to state the facts and
circumstances showing the impossibility of personal service of summons upon
respondents within a reasonable time, petitioners should have sought the issuance of
an alias summons. Under Section 5, Rule 14 of the Rules of Court, alias summons may
be issued when the original summons is returned without being served on any or all of
the defendants. Petitioners, however, did not do so, and they should now bear the
consequences of their lack of diligence.
EFFECT OF NO PROPER SERVICE OF SUMMONS
The judgment sought to be executed against respondents were rendered
without jurisdiction as there was neither a proper service of summons nor was there
any waiver or voluntary submission to the trial courts jurisdiction. Hence, the same is
void, with regard to private respondents except Caridad Trocino.
It must be pointed out that while it was the spouses Jesus and Caridad Trocino
who sold the properties to petitioners, their right to proceed against Jesus Trocino when
he died was passed on to his heirs, which includes respondents and Caridad
Trocino. Such transmission of right occurred by operation of law, more particularly by
succession, which is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance of a person are transmitted.
When the process server personally served the summons on Caridad Trocino, the trial
court validly acquired jurisdiction over her person alone. Hence, the trial court’s
decision is valid and binding with regard to her, but only in proportion to Caridad
Trocinos share. As aptly stated by the Court of Appeals:
This Courts decision is therefore applicable to all the defendant heirs
with the exception of defendant Caridad Trocino considering that it was the
latter who entered into the alleged sale without the consent of her
husband. She is therefore estopped from questioning her own authority
to enter into the questioned sale. Moreover, Caridad Trocino was validly
served with summons and was accorded due process.

The fact that Atty. Expedito Bugarin represented all the respondents without
any exception does not transform the ineffective service of summons into a valid
one. It does not constitute a valid waiver or even a voluntary submission to the
trial courts jurisdiction.There was not even the slightest proof showing that
respondents authorized Atty. Bugarins appearance for and in their behalf. As
found by the Court of Appeals:

While Caridad Trocino may have engaged the services of Atty. Bugarin, it did
not necessarily mean that Atty. Bugarin also had the authority to represent the
defendant heirs. The records show that in all the pleadings which required
verification, only Caridad Trocino signed the same. There was never a single
instance where defendant heirs signed the pleading. The fact that a pleading
is signed by one defendant does not necessarily mean that it is binding on a
co-defendant. Furthermore, Caridad Trocino represented herself as the
principal defendant in her Motion to Withdraw Appeal.
 VICENTA PANTALEON vs. HONORATO ASUNCION
G.R. No. L-13141, May 22, 1959
DOCTRINES:
 Strict compliance with the terms of the statute is necessary to confer
jurisdiction through service by publication.
 In an action strictly in personam, x x x, personal service of summons,
within the forum, is essential to the acquisition of jurisdiction over the
person of the defendant, who does not voluntarily submit himself to
the authority of the court
FACTS:
 This is an appeal, taken by defendant Honorato Asuncion from an order
denying a petition for relief from an order declaring him in default and a
judgment by default.
 On June 12, 1953, plaintiff, Vicenta Pantaleon, instituted this action, in the
Court of First Instance of Nueva Ecija, to recover from said Asuncion, the sum
of P2,000.00, with interest thereon, in addition to attorney's fees.
 The summons originally issued was returned by the sheriff of Nueva Ecija
unserved, with the statement that, according to reliable information, Asuncion
was residing in B-24 Tala Estate, Caloocan, Rizal. An alias summons was
issued, therefore, for service in the place last mentioned. However, the
provincial sheriff of Rizal returned it unserved, with information that
Asuncion had left the Tala Estate since February 18, 1952, and that diligent
efforts to locate him proved to no avail.
 On plaintiff's motion, the court ordered, on March 9, 1955, that defendant
be summoned by publication, and the summons was published on March
21 and 28, and April 4, 1955, in the "Examiner", said to be a newspaper of
general circulation in Nueva Ecija.
 However, defendant failed to appear or answer the complaint within the period
stated in the summons and was declared in default by an order dated July
12, 1955. (Order of Default)
 Subsequently, or on September 8, 1955, after a hearing held in the absence
of the defendant and without notice to him, the court rendered judgment
for the plaintiff and against said defendant, for the sum of P2,300.00, with
interest thereon at the legal rate, from October 28, 1948, and costs. (Judgment
by default)
 About forty-six (46) days later, or on October 24, 1955, the defendant filed a
petition for relief from said order and from said judgment and upon the
ground of mistake and excusable negligence. He averred that:
On September 26, 1955, at 34 Pitimine Street, San Francisco del Monte
Quezon City, which is his residence, he received notice of a registered
letter at the Post Office in San Jose, Nueva Ecija, his old family residence.
He then proceeded immediately to the latter municipality to claim said
letter, which he received on September 28, 1955; that the letter contained
copy of said order of July 12, 1955, and of the judgment of September 8,
1955, much to his surprise, for he had not been summoned or notified of
the hearing of this case; that had copy of the summons and of the order
for its publication been sent to him by mail, as provided in Rule 7, section
21, of the Rules of Court said summons and order would have reached
him, "as the judgment herein had"; and that his failure to appear before
the court is excusable it being due to the mistake of the authorities
concerned in not complying with the provisions of said section. Upon
denial of said petition for relief, defendant perfected his present appeal,
which is predicated upon the theory that the aforementioned summons
by publication had not been made in conformity with the Rules of Court.
DEFENDANT’S CONTENTION: He maintains that copy of the summons and of the
order for the publication were not deposited "in the post office, postage prepaid,
directed to the defendant by ordinary mail to his last known address", in violation
of Rule 7, section 21, of the Rules of Court, and that, had this provision been
complied with, said summons and order of publication would have reached him,
as had the decision appealed from. Said section 21 reads:
If the service has been made by publication, service may be proved by the
affidavit of the printer, his foreman or principal clerk, or of the editor, business
or advertising manager, to which affidavit a copy of the publication shall be
attached, and by an affidavit showing the deposit of a copy of the summons
and order for publication in the post office, postage prepaid, directed to the
defendant by ordinary mail to his last known address.
PLAINTIFF’S CONTENTION: The provision applicable to the case at bar is not this
section 21, but section 16, of Rule 7, of the Rules of Court, which provides:
Whenever the defendant is designated as an unknown owner, or the like, or
whenever the address of a defendant is unknown and cannot be ascertained
by diligent inquiry, service may, by leave of court, be effect upon him by
publication in such places and for such times as the court may order.
It is, moreover, urged by the plaintiff that the requirement, in said section 21, of an
affidavit showing that copy of the summons and of the order for its publication
had been sent by mail to defendant's last known address, refers to the
extraterritorial service of summons, provided for in section 17 of said Rule 7,
pursuant to which:
When the defendant does not reside and is not found in the Philippines and
the action affects the personal status of the plaintiff or relates to, or the subject
of which is, property within the Philippines, in which the defendant has or
claims a lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any interest therein,
or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal
service as under section 7; or by registered mail; or by publication in such
places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by ordinary mail to the last
known address of the defendant; or in any other manner the court may deem
 sufficient. Any order granting such leave shall specify a reasonable time, That it is not true that he failed to pay the said indebtedness of his said wife,
which shall not be less than sixty (60) days after notice, within which the as alleged in paragraph 3 of the complaint, for as a matter of fact, plaintiff and
defendant must answer. defendant agreed upon a settlement of the said indebtedness of the latter's
deceased wife on December 5, 1948, whereby defendant was allowed to pay
ISSUE: Whether or not it was proper for the RTC to declare defendant in default and it out of his monthly salary by instalment of P10.00 monthly beginning January,
to render a judgment in default. 1949, and in accordance therewith, defendant paid unto plaintiff the following
sums:
RULING: NO.
Instalment for January-February, 1948
Said section 21, is unqualified. It prescribes the "proof of service by
publication", regardless of whether the defendant is a resident of the Philippines or not. March 1949— P30.00 paid personally
Section 16 must be read in relation to section 21, which complements it. Then, too, the April 2, 1949— 10.00 by money order 7488
Court conceives of no reason, and plaintiff has suggested none, why copy of the May 11, 1949— 10.00 by money order 7921
summons and of the order for its publication should be mailed to non-resident June 10, 1949— 10.00 by money order 8230
defendants, but not to resident defendants. The Court cannot even say that defendant July 11, 1949— 10.00 by money order 8595
herein, who, according to the return of the Sheriff of Nueva Ecija, was reportedly August 10, 1949— 10.00 by money order 8943
residing in Rizal — where he, in fact (San Francisco del Monte and Quezon City used September 1949— 10.00 paid personally
to be part of Rizal), was residing — could reasonably be expected to read the summons October 1949— 10.00 paid personally
published in a newspaper said to be a general circulation in Nueva Ecija. November 14, 1949— 10.00 by money order 9776
December 13, 1949— 10.00 by money order 0076
Considering that strict compliance with the terms of the statute is
January 10, 1950— 10.00 by money order 0445
necessary to confer jurisdiction through service by publication, the conclusion
February 9, 1950— 10.00 by money order 0731
is inescapable that the lower court had no authority whatsoever to issue the
March 10, 1950— 10.00 by money order 1149
order of July 12, 1955, declaring the defendant in default and to render the
April 10, 1950— 10.00 by money order 1387
decision of September 8, 1955, and that both are null and void ad initio.
May 11, 1950— 10.00 by money order 1990
Apart from the foregoing, it is a well-settled principle of Constitutional Law that, June 12, 1950— 10.00 by money order 1055
in an action strictly in personam, like the one at bar, personal service of July 11, 1950— 10.00 by money order 8850
summons, within the forum, is essential to the acquisition of jurisdiction over the person August 11, 1950— 10.00 by money order 9293
of the defendant, who does not voluntarily submit himself to the authority of the court. September 6, 1950— 10.00 by money order 9618
In other words, summons by publication cannot — consistently with the due process October 10, 1950— 10.00 by money order 0008
clause in the Bill of Rights — confer upon the court jurisdiction over said defendant. November 8, 1950— 10.00 by money order 0369
December 1950— 10.00 paid personally
Due process of law requires personal service to support a personal January 2, 1951— 10.00 paid personally
judgment, and, when the proceeding is strictly in personam brought to February 10, 1951— 10.00 paid personally
determine the personal rights and obligations of the parties, personal service March 12, 1951— 10.00 paid personally
within the state or a voluntary appearance in the case is essential to the April 1951— 10.00 paid personally
acquisition of jurisdiction so as to constitute compliance with the May 1951— 10.00 paid personally
constitutional requirement of due process. . . . June 1951— 10.00 paid personally
July 1951— 10.00 paid personally
Although a state legislature has more control over the form of service on its August 1951— 10.00 paid personally
own residents than nonresidents, it has been held that in action in September 1951— 10.00 paid personally
personam . . . service by publication on resident defendants, who are November 1951— 10.00 paid personally
personally within the state and can be found therein is not "due process of December 1951— 10.00 paid personally
law", and a statute allowing it is unconstitutional. (16A C.J.S., pp. 786, 789; September 1952— 30.00 paid personally
Emphasis ours.) December 1952— 20.00 paid personally
January 1953— 10.00 paid personally
Lastly, from the viewpoint of substantial justice and equity, the Court if of the February 1953— 10.00 paid personally
opinion that defendant's petition for relief should have been granted. To begin with, it March 1953— 10.00 paid personally
was filed well within the periods provided in the Rules of Court. Secondly, and, April 1953— 10.00 paid personally
this is more important, defendant's verified answer, which was attached to said May 1953— 10.00
petition, contains allegations which, if true, constitute a good defense. Thus, for Total paid — P460.00
instance, in paragraph (2) of the "special denials" therein, he alleged:
 The specification of the dates of payment, of the amounts paid each time, of
the manner in which each payment was made, and of the number of the money orders
in which eighteen (18) payments had been effected, constitutes a strong indication
of the probable veracity of said allegation, fully justifying the grant of an
opportunity to prove the same.
 PATRICIA NATCHER, petitioner, vs. HON. COURT OF APPEALS AND THE
HEIRS OF GRACIANO DEL ROSARIO LETICIA DEL ROSARIO, EMILIA
DEL ROSARIO-MANANGAN, ROSALINDA FUENTES LLANA, RODOLFO
FUENTES, ALBERTO FUENTES, EVELYN DEL ROSARIO, and
EDUARDO DEL ROSARIO, respondents.
G.R. No. 133000. October 2, 2001
FACTS:
 Spouses Graciano del Rosario and Graciana Esguerra were registered
owners of a parcel of land with an area of 9,322 square meters located
in Manila and covered by Transfer Certificate of Title No. 11889.
 Upon the death of Graciana in 1951, Graciano, together with his six
children, namely: Bayani, Ricardo, Rafael, Leticia, Emiliana and Nieves,
entered into an extrajudicial settlement of Gracianas estate on 09
February 1954 adjudicating and dividing among themselves the real
property subject of TCT No. 11889. Under the agreement, Graciano
received 8/14 share while each of the six children received 1/14
share of the said property. Accordingly, TCT No. 11889 was
cancelled, and in lieu thereof, TCT No. 35980 was issued in the name of
Graciano and the six children.
 On 09 February 1954, said heirs executed and forged an Agreement
of Consolidation-Subdivision of Real Property with Waiver of
Rights where they subdivided among themselves the parcel of land
covered by TCT No. 35980 into several lots. Graciano then donated to
his children, share and share alike, a portion of his interest in the land
amounting to 4,849.38 square meters leaving only 447.60 square
meters registered under Gracianos name, as covered by TCT No.
35988. Subsequently, the land subject of TCT No. 35988 was further
subdivided into two separate lots where the first lot with a land area
of 80.90 square meters was registered under TCT No. 107442 and the
second lot with a land area of 396.70 square meters was registered
under TCT No. 107443. Eventually, Graciano sold the first lot to a third
person but retained ownership over the second lot.
 On 20 March 1980, Graciano married herein petitioner Patricia
Natcher. During their marriage, Graciano sold the land covered by
TCT No. 107443 to his wife Patricia as a result of which TCT No.
186059 was issued in the latter’s name. On 07 October 1985, Graciano
died leaving his second wife Patricia and his six children by his first
marriage, as heirs.
 Private respondents then filed a complaint before the Regional Trial
Court of Manila, Branch 55.
PRIVATE RESPONDENTS’ CONTENTION:
 Upon Gracianos death, petitioner Natcher, through the employment of fraud,
misrepresentation and forgery, acquired TCT No. 107443, by making it
appear that Graciano executed a Deed of Sale dated 25 June 1987[6] in
favor of herein petitioner resulting in the cancellation of TCT No. 107443
and the issuance of TCT No. 186059 in the name of Patricia Natcher.
 Hence, as a consequence of such fraudulent sale, their legitimes have been
impaired.
PETITIONER’S CONTENTION:
 She was legally married to Graciano on 20 March 1980 and thus, under the
law, she was likewise considered a compulsory heir of the latter.
 She further alleged that during Graciano’s lifetime, Graciano already
distributed, in advance, properties to his children, Hence, private
respondents may not anymore claim against Gracianos estate or against
herein petitioners property.
RTC’S DECISION: In favor of the Respondents.
1) The deed of sale executed by the late Graciano del Rosario in favor of Patricia
Natcher is prohibited by law and thus a complete nullity. There being no
evidence that a separation of property was agreed upon in the marriage
settlements or that there has been decreed a judicial separation of property
between them, the spouses are prohibited from entering (into) a contract of
sale;
2) The deed of sale cannot be likewise regarded as a valid donation as it was
equally prohibited by law under Article 133 of the New Civil Code;
3) Although the deed of sale cannot be regarded as such or as a donation, it may
however be regarded as an extension of advance inheritance of Patricia
Natcher being a compulsory heir of the deceased.
COURT OF APPEAL’S DECISION: Reversed and set aside the decision of the RTC.
Reasoning that:
It is the probate court that has exclusive jurisdiction to make a just and
legal distribution of the estate. The court a quo, trying an ordinary action for
reconveyance/annulment of title, went beyond its jurisdiction when it
performed the acts proper only in a special proceeding for the settlement
of estate of a deceased person. XXX
X X X Thus the court a quo erred in regarding the subject property as an
advance inheritance. What the court should have done was merely to rule
on the validity of (the) sale and leave the issue on advancement to be
resolved in a separate proceeding instituted for that purpose. X X X
ISSUE: May a Regional Trial Court, acting as a court of general jurisdiction in an action
for reconveyance and annulment of title with damages, adjudicate matters relating to
the settlement of the estate of a deceased person particularly in questions as to
advancement of property made by the decedent to any of the heirs?
RULING: NO.
RTC HAS NO AUTHORITY TO RENDER AN ADJUDICATION AND RESOLVE THE
ISSUE OF ADVANCEMENT OF THE REAL PROPERTY
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and
special proceedings, in this wise:
a) A civil action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules
for ordinary civil actions, subject to specific rules prescribed for a special civil
action.
XXX
c) A special proceeding is a remedy by which a party seeks to establish a status,
a right or a particular fact.
As could be gleaned from the foregoing, there lies a marked distinction between
an action and a special proceeding:
ACTION SPECIAL PROCEEDING
Applying these principles, an action for reconveyance and annulment of title
with damages is a civil action, whereas matters relating to settlement of the estate
of a deceased person such as advancement of property made by the decedent,
partake of the nature of a special proceeding, which concomitantly requires the
application of specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of
the decedent fall within the exclusive province of the probate court in the
exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to
advancement made or alleged to have been made by the deceased to any heir may be
heard and determined by the court having jurisdiction of the estate
proceedings; and the final order of the court thereon shall be binding on the person
raising the questions and on the heir.
While it may be true that the Rules used the word may, it is nevertheless clear
that the same provision contemplates a probate court when it speaks of the court
having jurisdiction of the estate proceedings.

Formal demand of one’s right in a court
of justice in the manner prescribed by
the court or by the law
Method of applying legal remedies
according to definite established rules
Actions include those proceedings
which are instituted and prosecuted
according to the ordinary rules and
provisions relating to actions at law or
suits in equity*
Proceeding may be defined as an
application or proceeding to establish the
status or right of a party, or a particular
fact
Usually, in special proceedings, no
formal pleadings are required unless the
statute expressly so provides
In special proceedings, the remedy is
granted generally upon an application or
motion
Special proceedings include those
proceedings which are not ordinary in
this sense, but is instituted and
prosecuted according to some special
mode as in the case of proceedings
commenced without summons and
prosecuted without regular pleadings,
which are characteristics of ordinary
actions*
Special proceeding must therefore be in
the nature of a distinct and independent
proceeding for particular relief, such as
may be instituted independently of a
pending action, by petition or motion
upon notice*
*American Jurisprudence
Corollarily, the Regional Trial Court in the instant case, acting in its general
jurisdiction, is devoid of authority to render an adjudication and resolve the issue
of advancement of the real property in favor of herein petitioner Natcher,
inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with
damages is not, to our mind, the proper vehicle to thresh out said
question. Moreover, under the present circumstances, the RTC of Manila, Branch
55 was not properly constituted as a probate court so as to validly pass upon the
question of advancement made by the decedent Graciano Del Rosario to his wife,
herein petitioner Natcher.
At this point, the appellate courts disquisition is elucidating:
Before a court can make a partition and distribution of the estate of a
deceased, it must first settle the estate in a special proceeding instituted for the
purpose. In the case at hand, the court a quo determined the respective legitimes of
the plaintiffs-appellants and assigned the subject property owned by the estate of the
deceased to defendant-appellee without observing the proper proceedings provided
(for) by the Rules of Court. From the aforecited discussions, it is clear that trial courts
trying an ordinary action cannot resolve to perform acts pertaining to a special
proceeding because it is subject to specific prescribed rules. Thus, the court a
quo erred in regarding the subject property as an advance inheritance.
WAIVER; RULINGS IN COCA VS. BORROMEO AND MENDOZA VS. TEH
In resolving the case at bench, this Court is not unaware of our pronouncement
in Coca vs. Borromeo] and Mendoza vs. Teh that whether a particular matter should
be resolved by the Regional Trial Court (then Court of First Instance) in the exercise of
its general jurisdiction or its limited probate jurisdiction is not a jurisdictional issue but
a mere question of procedure. In essence, it is a procedural question involving a mode
of practice which may be waived.
 However, the Court, do not see any waiver on the part of herein private
respondents inasmuch as the six children of the decedent even assailed the
authority of the trial court, acting in its general jurisdiction, to rule on this specific
issue of advancement made by the decedent to petitioner.

Analogously, in a train of decisions, this Court has consistently enunciated the

long standing principle that although generally, a probate court may not decide a
question of title or ownership, yet if the interested parties are all heirs, or the
question is one of collation or advancement, or the parties consent to the
assumption of jurisdiction by the probate court and the rights of third parties are
not impaired, then the probate court is competent to decide the question of
ownership.

Similarly in Mendoza vs. Teh, we had occasion to hold:

In the present suit, no settlement of estate is involved, but merely an allegation

seeking appointment as estate administratrix which does not
necessarily involve settlement of estate that would have invited the
exercise of the limited jurisdiction of a probate court.

Of equal importance is that before any conclusion about the legal share due to a
compulsory heir may be reached, it is necessary that certain steps be taken first. The
net estate of the decedent must be ascertained, by deducting all payable obligations
and charges from the value of the property owned by the deceased at the time of his
death; then, all donations subject to collation would be added to it. With the partible
estate thus determined, the legitime of the compulsory heir or heirs can be established;
and only thereafter can it be ascertained whether or not a donation had prejudiced the
legitimes.

A perusal of the records, specifically the antecedents and proceedings in the

present case, reveals that the trial court failed to observe established rules of
procedure governing the settlement of the estate of Graciano Del Rosario. This
Court sees no cogent reason to sanction the non-observance of these well-entrenched
rules and hereby holds that under the prevailing circumstances, a probate court, in
the exercise of its limited jurisdiction, is indeed the best forum to ventilate and
adjudge the issue of advancement as well as other related matters involving the
settlement of Graciano Del Rosario’s estate.
HEIRS OF GUIDO YAPTINCHAY AND ISABEL YAPTINCHAY, NAMELY: LETICIA
ENCISO-GADINGAN, EMILIO ENCISO, AURORA ENCISO, AND NORBERTO
ENCISO, REPRESENTED BY LETICIA ENCISO-GADINGAN, ATTORNEY-IN-
FACT, petitioners, vs. HON. ROY S. DEL ROSARIO, PRESIDING JUDGE, RTC,
BRANCH 21, IMUS, CAVITE; THE REGISTER OF DEEDS FOR TRECE MARTIRES
CITY, GEORGE T. CHUA, SPS. ALFONSO NG AND ANNABELLE CHUA, SPS.
ROSENDO L. DY AND DIANA DY, SPS. ALEXANDER NG AND CRISTINA NG,
SPS. SAMUEL MADRID AND BELEN MADRID, SPS. JOSE MADRID AND
BERNARDA MADRID, SPS. DAVID MADRID AND VIOLETA MADRID, JONATHAN
NG, SPS. VICTORIANO CHAN, JR. AND CARMELITA CHAN, SPS. MARIE TES C.
LEE AND GREGORIE W.C. LEE, JACINTO C. NG, JR., SPS. ADELAIDO S. DE
GUZMAN AND ROSITA C. DE GUZMAN, SPS. RICARDO G. ONG AND JULIE
LIM-IT, SPS. MISAEL ADELAIDA P. SOLIMAN AND FERDINAND SOLIMAN, SPS.
MYLENE T. LIM AND ARTHUR LIM, EVELYN K. CHUA, GOLDEN BAY REALTY
AND DEVELOPMENT CORPORATION, respondents.
G.R. No. 124320. March 2, 1999
DOCTRINES:
 An order of dismissal, be it right or wrong, is a final order, which is
subject to appeal and not a proper subject of certiorari. Where appeal is
available as a remedy, certiorari will not lie.
 Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action
is defined as one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong while a
special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact. It is then decisively clear that the
declaration of heirship can be made only in a special proceeding
inasmuch as the petitioners here are seeking the establishment of a
status or right.
FACTS:
 Petition for Certiorari under Rule 65 of the Revised Rules of Court
assailing the Orders dated October 25, 1995 and February 23, 1996,
respectively, of Branch 21 of the Regional Trial Court in Imus, Cavite
(RTC)
 Petitioners claim that they are the legal heirs of the late Guido and
Isabel Yaptinchay, the owners-claimants of Lot No. 1131 with an area
of 520,638 and Lot No. 1132 with an area of 96,235 square meters, more
or less situated in Bancal, Carmona, Cavite.
 On March 17, 1994, petitioners executed an Extra-Judicial Settlement
of the estate of the deceased Guido and Isabel Yaptinchay.
 On August 26, 1994, petitioners discovered that a portion, if not all, of
the aforesaid properties were titled in the name of respondent Golden
Bay Realty and Development Corporation (Golden Bay) under Transfer
Certificate of Title Nos. (TCT) 225254 and 225255. With the discovery
of what happened to subject parcels of land, petitioners filed a complaint
for ANNULMENT and/or DECLARATION OF NULLITY OF TCT NO.
493363, 493364, 493665, 493366, 493367; and its Derivatives; As
Alternative Reconveyance of Realty WITH A PRAYER FOR A WRIT
OF PRELIMINARY INJUNCTION and/or RESTRAINING ORDER
WITH DAMAGES, docketed as RTC BCV-94-127 before Branch 21 of
the Regional Trial Court in Imus, Cavite.
 Upon learning that Golden Bay sold portions of the parcels of land in
question, petitioners filed with the RTC an Amended Complaint to
implead new and additional defendants and to mention the TCTs to be
annulled. But the respondent court dismissed the Amended
Complaint.
 Petitioners moved for reconsideration of the Order dismissing the
Amended Complaint. The motion was granted by the RTC in an Order
dated July 7, 1995, which allowed the herein petitioners to file a Second
Amended Complaint, which they promptly did.
 On August 12, 1995, the private respondents presented a Motion to
Dismiss on the grounds that the complaint failed to state a cause
of action, alleging that: Plaintiffs did not have a right of action, that they
have not established their status as heirs, that the land being claimed is
different from that of the defendants, and that plaintiffs claim was barred
by laches.
 RTC Decision: The Motion to Dismiss was granted by the respondent
court (RTC Branch 21, Imus, Cavite). The RTC held that petitioners have
not shown any proof or even a semblance of it - except the allegations
that they are the legal heirs of the above-named Yaptinchays - that they
have been declared the legal heirs of the deceased couple.
 Petitioners filed a Motion for Reconsideration it was denied.
 Did not file an appeal with the CA. (Not in the case)
PETITIONER’S CONTENTION: Respondent court acted with grave abuse of discretion
in ruling that the issue of heirship should first be determined before trial of the
case could proceed. It is petitioners submission that the respondent court
should have proceeded with the trial and simultaneously resolved the issue of
heirship in the same case.
ISSUE: Whether or not it was proper for the RTC to grant the Motion to Dismiss.
Ruling: YES.
PETITION FOR CERTIORARI WAS AN IMPROPER RECOURSE
Petitioners Petition for Certiorari before this Court is an improper recourse. Their
proper remedy should have been an appeal. An order of dismissal, be it right or
wrong, is a final order, which is subject to appeal and not a proper subject
of certiorari. Where appeal is available as a remedy, certiorari will not lie.
NO GRAVE ABUSE OF DICRETION IN DISMISSING PETITIONER’S SECOND
COMPLAINT
 Neither did the respondent court commit grave abuse of discretion in issuing the
questioned Order dismissing the Second Amended Complaint of petitioners, as it aptly
ratiocinated and ruled:

But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel
Yaptinchay have not shown any proof or even a semblance of it - except the
allegations that they are the legal heirs of the aforementioned Yaptinchays -
that they have been declared the legal heirs of the deceased couple. Now, the
determination of who are the legal heirs of the deceased couple must be made
in the proper special proceedings in court, and not in an ordinary suit for
reconveyance of property. This must take precedence over the action for
reconveyance (Elena C. Monzon, et. al., v. Angelita Taligato, CA-G-R No.
33355, August 12, 1992).

In Litam, etc., et. al. v. Rivera[9], this court opined that the declaration of
heirship must be made in an administration proceeding, and not in an
independent civil action. This doctrine was reiterated in Solivio v. Court of
Appeals[10] where the court held:

"In Litam, et al. v. Rivera, 100 Phil. 364, where despite the pendency of the
special proceedings for the settlement of the intestate estate of the deceased
Rafael Litam, the plaintiffs-appellants filed a civil action in which they claimed
that they were the children by a previous marriage of the deceased to a
Chinese woman, hence, entitled to inherit his one-half share of the conjugal
properties acquired during his marriage to Marcosa Rivera, the trial court in
the civil case declared that the plaintiffs-appellants were not children of the
deceased, that the properties in question were paraphernal properties of his
wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this
Court, we ruled that such declarations (that Marcosa Rivera was the only heir
of the decedent) is improper, in Civil Case No. 2071, it being within the
exclusive competence of the court in Special Proceedings No. 1537, in which
it is not as yet, in issue, and, will not be, ordinarily, in issue until the
presentation of the project of partition.

The trial court cannot make a declaration of heirship in the civil action for the
reason that such a declaration can only be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as
one by which a party sues another for the enforcement or protection of a right,
or the prevention or redress of a wrong while a special proceeding is a remedy
by which a party seeks to establish a status, a right, or a particular fact. It is then
decisively clear that the declaration of heirship can be made only in a special
proceeding inasmuch as the petitioners here are seeking the establishment of a
status or right.

Therefore,the Supreme Court ruled that the respondent court did the right
thing in dismissing the Second Amended Complaint, which stated no cause of
action. In Travel Wide Associated Sales (Phils.), Inc. v. Court of Appeals, it was ruled
that:

xxx If the suit is not brought in the name of or against the real party in interest,
a motion to dismiss may be filed on the ground that the complaint states no
cause of action.
 TANCREDO REDEÑA VS.
HON. COURT OF APPEALS and LEOCADIO REDEÑA
G.R. No. 146611, February 6, 2007
DOCTRINE:
The Rules itself expressly states in Section 2 of Rule 1 that the rules shall be
liberally construed in order to promote their object and to assist the parties in obtaining
just, speedy and inexpensive determination of every action and proceeding. Courts,
therefore, not only have the power but the duty to construe and apply technical rules
liberally in favor of substantive law and substantial justice. Furthermore, this Court,
unlike courts below, has the power not only to liberally construe the rules, but also to
suspend them, in favor of substantive law or substantial rights. Such power inherently
belongs to this Court, which is expressly vested with rule-making power by no less than
the Constitution.
It is equally settled, however, that this Court’s power to liberally construe and
even to suspend the rules, presupposes the existence of substantial rights in favor of
which, the strict application of technical rules must concede.
FACTS:
 The present controversy came from an action for partition filed by
petitioner Tancredo against his older half-brother, herein private respondent
Leocadio Redeña (Leocadio, for brevity) before the then Court of First
Instance (now Regional Trial Court [RTC]) of San Pablo City, Laguna, and
thereat docketed as Civil Case No. S-241 which was subsequently inherited
by Branch 33 of the RTC, Siniloan, Laguna.
 The complaint alleges that plaintiff Tancredo and defendant Leocadio are
both sons of one Maximo Redeña: Tancredo, by Maximo’s marriage to
Magdalena Fernandez, and Leocadio, by Maximo’s previous marriage to
Emerenciana Redeña.
 The complaint further alleged that the parties’ common father, Maximo, left
several pieces of realty, to wit:
i. a residential lot at M. Calim Street, Famy, Laguna;
ii. a riceland at Poroza, Famy, Laguna;
iii. and another parcel of land at Maate, also in Famy, Laguna.
 In a decision dated August 20, 1997, the trial court, based on the evidence
presented, confined the partition to only the property actually
pertaining to the estate of the parties’ deceased father and co-owned
by them, namely, the parcel of land at Maate.
 On December 11, 1997, petitioner filed with the trial court a Notice of
Appeal. The court granted the notice and directed the elevation of the
records of the case to the CA whereat petitioner’s appeal was docketed as
CA-G.R.CV No. 59641.
 On September 28, 1998, the CA issued a resolution directing petitioner, as
appellant, to file his appellant’s brief. Evidently, the period for filing the brief
was even extended by the CA. However petitioner failed to file the
apppellant’s brief within the extended period. Thus, the CA deemed the
appeal the appeal abandoned and accordingly dismissed the same.
 Then, on December 28, 1999, in the same CA-G.R. CV No. 59641, petitioner
filed a Petition for Relief bearing date December 27, 1999, anchored on
Section 2, Rule 38 of the 1997 Rules of Civil Procedure. In that pleading,
petitioner prays the CA to set aside its dismissal resolution of March 9, 1999,
to reinstate his appeal and grant him a fresh period of forty-five (45) days from
notice within which to file his appellant’s brief. However, the CA denied such
Petition. The CA explained:
Petition for relief is not among the remedies available in the Court of
Appeals. In fact, authorities in remedial law (noted authors Regalado,
Herrera, and Feria) are one in their commentaries that these petitions
are filed with the trial courts. Not one of them has advanced an opinion
or comment that this equitable relief can be obtained in the Court of
Appeals. Under Rule 47, an annulment of judgment or final orders and
resolutions may be filed before this court based on the ground of extrinsic
fraud which seems to be the premise of the petition. Perhaps it is worth
looking into by the petitioner if the factual basis of the present petition for
relief may qualify as an extrinsic fraud, under Rule 47.
 Petitioner’s motion for reconsideration was likewise denied by the CA in
its Resolution of November 16, 2000. But even as the CA stood firm on its
stand that a petition for relief from denial of appeal is not among the
remedies available before the CA itself, the SC, in the same Resolution of
November 16, 2000, left the final determination of the question to the
Supreme Court. Thus, in its resolution it recommends that the issue should
be referred to the SC.
ISSUE: Whether or not petitioner’s Petition for Relief should be granted.
RULING: NO.
In Hagonoy Market Vendor Association v. Municipality of Hagonoy, Bulacan,
G.R. No. 137621, February 6, 2002, then Associate Justice, now Chief Justice
Reynato S. Puno, reminded us that ̶
Laws are of two (2) kinds: substantive and procedural. Substantive laws,
insofar as their provisions are unambiguous, are rigorously applied to resolve
legal issues on the merits. In contrast, courts generally frown upon an
uncompromising application of procedural laws so as not to subvert
substantial justice. Nonetheless, it is not totally uncommon for courts to decide
cases based on a rigid application of the so-called technical rules of procedure
as these rules exist for the orderly administration of justice.
From the petition, it is clear that this Court is called upon to relax the
application of procedural rules, or suspend them altogether, in favor of
petitioner’s substantial rights. There is no doubt as to the power of this Court
to do that. In a fairly recent case, we reiterated:
 The Court has often stressed that rules of procedure are merely tools
designed to facilitate the attainment of justice. They were conceived and
promulgated to effectively aid the court in the dispensation of justice. Courts
are not slaves to or robots of technical rules, shorn of judicial discretion. In
rendering justice, courts have always been, as they ought to be,
conscientiously guided by the norm that on the balance, technicalities take a
backseat against substantive rights, and not the other way around. Thus, if
the application of the Rules would tend to frustrate rather than promote justice,
it is always within our power to suspend the rules or except a particular case
from its operation.
The Rules itself expressly states in Section 2 of Rule 1 that the rules
shall be liberally construed in order to promote their object and to assist the
parties in obtaining just, speedy and inexpensive determination of every action
and proceeding. Courts, therefore, not only have the power but the duty to
construe and apply technical rules liberally in favor of substantive law and
substantial justice. Furthermore, this Court, unlike courts below, has the power
not only to liberally construe the rules, but also to suspend them, in favor of
substantive law or substantial rights. Such power inherently belongs to this
Court, which is expressly vested with rule-making power by no less than the
Constitution.
It is equally settled, however, that this Court’s power to liberally
construe and even to suspend the rules, presupposes the existence of
substantial rights in favor of which, the strict application of technical rules must
concede. The facts are borne out by the records pertaining to petitioner’s purported
undivided share in the property at M. Calim Street, Famy, Laguna, and the property in
Poroza clearly showed that these two properties had been subject of an agreement
(Exh. "1") whereby petitioner recognized respondent’s rights to said properties. This
fact binds this Court, there being nothing on record with the trial court as to the herein
alleged fraud against the petitioner. Upon thorough deliberation of the supposed
substantial rights claimed by the petitioner with the court below, the Court finds no
cogent basis to favorably rule on the merits of the appeal even if it may be given due
course which is indispensable to justify this Court in considering this case as an
exception to the rules.
The present case will have to be decided in accordance with existing
rules of procedure. We apply the settled principle that petition for relief under Rule
38 of the Rules of Court is of equitable character, allowed only in exceptional
cases as when there is no other available or adequate remedy. Hence, a petition
for relief may not be availed of where a party has another adequate remedy
available to him, which is either a motion for new trial or appeal from the adverse
decision of the lower court, and he is not prevented from filing such motion or
taking the appeal. The rule is that relief will not be granted to a party who seeks to be
relieved from the effect of the judgment when the loss of the remedy at law is due to
his own negligence, or a mistaken mode of procedure; otherwise, the petition for relief
will be tantamount to reviving the right of appeal which has already been lost either
because of inexcusable negligence or due to a mistake in the mode of procedure taken
by counsel.
Under Section 2 of Rule 38, supra, of the Rules of Court, a party prevented
from taking an appeal from a judgment or final order of a court by reason of fraud,
accident, mistake or excusable negligence, may file in the same court and in the same
case a petition for relief praying that his appeal be given due course. This presupposes,
of course, that no appeal was taken precisely because of any of the aforestated reasons
which prevented him from appealing his case. Hence, a petition for relief under Rule
38 cannot be availed of in the CA, the latter being a court of appellate jurisdiction. For
sure, under the present Rules, petitions for relief from a judgment, final order or other
proceeding rendered or taken should be filed in and resolved by the court in the same
case from which the petition arose. Thus, petition for relief from a judgment, final order
or proceeding involved in a case tried by a municipal trial court shall be filed in and
decided by the same court in the same case, just like the procedure followed in the
present Regional Trial Court.
Here, the record shows that petitioner in fact filed a Notice of Appeal
with the trial court, which the latter granted in its order of December 11, 1997 and
ordered the elevation of the records to the CA. In turn, the CA, in its resolution
of September 28, 1998, required the petitioner, thru his former counsel, Atty.
Geminiano Almeda, to file his appellant’s brief. But petitioner failed to comply.
Consequently, in its resolution of March 9, 1999, the CA considered the
appellant’s appeal as ABANDONED and DISMISSED the same.
Additionally, after the dismissal of his appeal, petitioner filed with the
CA a motion for reconsideration of the dismissal resolution. Unfortunately,
however, the motion was filed very much late on November 8, 1999. Expectedly,
in its resolution17 of November 25, 1999, the CA denied the motion for
reconsideration.
RE: NEGLIGENCE
Petitioner presents himself as a mere farmer seeking the Court’s leniency to
the point of disregarding the rules on reglementary period for filing pleadings. But he
fails to point out any circumstance which might lead the Court to conclude that his
station in life had in any way placed his half-brother in a more advantageous position.
As we see it, petitioner failed to show diligence in pursuing his cause. His condition as
a farmer, by itself alone, does not excuse or exempt him from being vigilant on his right.
He cannot lay the blame solely on his former lawyer. It is settled that clients are bound
by the mistakes, negligence and omission of their counsel. 18 While, exceptionally, a
client may be excused from the failure of his counsel, the circumstances obtaining in
this case do not convince the Court to take exception.
In seeking exemption from the above rule, petitioner claims that he will suffer
deprivation of property without due process of law on account of the gross negligence
of his previous counsel. To him, the negligence of his former counsel was so gross that
it practically resulted to fraud because he was allegedly placed under the impression
that the counsel had prepared and filed his appellant’s brief. He thus prays the Court
reverse the CA and remand the main case to the court of origin for new trial.
Admittedly, this Court has relaxed the rule on the binding effect of counsel’s
negligence and allowed a litigant another chance to present his case (1) where the
reckless or gross negligence of counsel deprives the client of due process of law; (2)
when application of the rule will result in outright deprivation of the client’s liberty or
property; or (3) where the interests of justice so require.19 None of these exceptions
obtains here.
 For a claim of counsel’s gross negligence to prosper, nothing short of clear
abandonment of the client’s cause must be shown. Here, petitioner’s counsel failed to
file the appellant’s brief. While this omission can plausibly qualify as simple negligence,
it does not amount to gross negligence to justify the annulment of the proceedings
below.

In Legarda v. Court of Appeals,20 where the Court initially held that the
counsel’s failure to file pleadings at the trial court and later on appeal amounted to
gross negligence, the Court, on motion of the respondent therein, granted
reconsideration and applied the general rule binding the litigant to her counsel’s
negligence. In said case, the Court noted that the proceedings which led to the filing of
the petition "were not attended by any irregularity." The same observation squarely
applies here.

CONCLUSION

To recapitulate, petitioner is not entitled to relief under Rule 38, Section

2 of the Rules of Court. He was not prevented from filing his notice of appeal by
fraud, accident, mistake or excusable negligence, as in fact he filed one. The
relief afforded by Rule 38 will not be granted to a party who seeks to be relieved
from the effects of the judgment when the loss of the remedy of law was due to
his own negligence, or a mistaken mode of procedure for that matter; otherwise,
the petition for relief will be tantamount to reviving the right of appeal which has
already been lost, either because of inexcusable negligence or due to a mistake
of procedure by counsel. The Rules allow a petition for relief only when there is
no other available remedy, and not when litigants, like the petitioner, lose a
remedy by negligence.

On a final note, the extraordinary writ of certiorari may be issued only where
it is clearly shown that there is patent and gross abuse of discretion as to amount to an
evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or personal hostility. The Court finds no such
abuse of discretion in this case.
 RODOLFO PAREDES, ET AL VS ERNESTO VERANO, ET AL
G.R. NO. 164375, OCTOBER 12, 2006
DOCTRINE:
A judgment of default against a defendant who failed to attend pre-trial, or even any
defendant who failed to file an answer, implies a waiver only of their right to be heard
and to present evidence to support their allegations but not all their other rights.
FACTS:
 Petitioners filed a a complaint for the establishment of a right of way
against respondents as defendants. The complaint, docketed as Civil Case
No. 2767 of the Regional Trial Court (RTC) of Maasin City, Southern Leyte,
Branch 24, culminated in a judgment by compromise dated 26 April 1994. In
the Compromise Agreement, respondent Cosme Hinunangan granted a
two (2) meter-wide right of way in favor of petitioners in consideration of
the amount of P6,000.00 which petitioners agreed to pay.
 Alleging that petitioners had blocked the passage way in violation of the
Compromise Agreement, on 28 September 1999, respondents filed a
complaint for specific performance with damages against petitioners.
 The petitioners In their answer, petitioners denied that they have violated the
Compromise Agreement. They alleged that like them, respondents were not
actual residents of Barangay Tagnipa where the "road right of way" was
established and that respondent Cosme Hinunangan had already sold his only
remaining lot in the vicinity to petitioner Rodolfo Paderes.
 Subsequent to the answer, petitioners filed a motion to dismiss on the
ground of lack of cause of action. The trial court, presided by Judge
Bethany G. Kapili, denied the motion to dismiss. Petitioners elevated the
order of denial to the Court of Appeals and thereafter to the SC, both to no
avail. Petitioners also asked Judge Kapili to inhibit himself from the case. The
judge denied the motion.
 Pre-trial was initially set for 24 April 2003, but this was reset to 3 June 2003
on motion of respondents' counsel. But the pre-trial set on 3 June 2003 did
not push through either because none of the parties appeared.
 So, pre-trial was reset to 11 November 2003. Petitioner Baybay's counsel
moved to reset it to another date on account of a conflicting hearing. However,
petitioner Baybay, who is the father of the counsel for petitioners, was present
in court along with the other defendants, when the case was called on 11
November 2003. The RTC was informed then of a proposed settlement
between the parties, although respondent Baybay qualified his reaction by
telling the court that he would first have to inform his lawyer and the co-
defendants of the said proposal. The RTC then commented unfavorably on
the absence of petitioners' counsel, expressing disappointment towards
his attitude, even making note of the fact that not once had the counsel
appeared before the RTC, even though the case had already reached the
Supreme Court over the denial of the motion to dismiss. At the same time,
the RTC acceded and reset the pre-trial for 23 January 2004.
 Shortly before the new pre-trial date, counsel for petitioners filed a
Manifestation of Willingness to Settle With Request for Cancellation
dated 5 January 2004. Apart from manifesting his willingness to settle the
complaint, petitioners' counsel through the Manifestation suggested to the
opposing counsel that he be informed of the terms of the proposed settlement.
Correspondingly, petitioners' counsel requested the cancellation of the
23 January 2004 hearing.
 However, the hearing did push through on 23 January 2004. The private
respondents and their counsel were present. So were petitioners Baybay and
Paderes, and co-defendant Alago, but not their counsel.
RTC: RTC allowed respondents to present their evidence ex parte, "for failure of the
defendants['] counsel to appear before [the RTC]". Petitioners filed a motion for
reconsideration, but this was denied by the RTC.
COURT OF APPEALS: DENIED THE PETITIONER’S MOTION.
1. Court of Appeals dismissed the petition outright, for failure to attach duplicate
original copies of the annexes to the petition other than the RTC Orders dated 23
January 2004 and 17 February 2004 (attaching photocopies instead), as well as
for failure to submit such other pleadings relevant and pertinent to the petition.
2. Petitioner filed a MR. However, the CA ruled that under Section 5, Rule 18 of the
1997 Rules of Civil Procedure, it is the failure of the defendant, and not defendant's
counsel, to appear at the pre-trial that would serve cause to allow plaintiff to
present evidence ex parte.
ISSUE: Whether the absence of the counsel for defendants at the pre-trial, with all
defendants themselves present, is a ground to declare defendants in default and to
authorize plaintiffs to present evidence ex parte.
RULING: NO.
PRELIMINARY ISSUE: FAILURE TO ATTACH RELEVANT PLEADINGS
Under Section 3, Rule 46 of the 1997 Rules of Civil Procedure, the Court of
Appeals has sufficient discretion to dismiss the petition for failure of petitioner to comply
with the requirements enumerated in the section, including "such material portions of
the record as are referred to [in the petition], and other documents relevant or pertinent
thereto." At the same time, "[d]ismissal of appeals purely on technical grounds is
frowned upon and the rules of procedure ought not to be applied in a very rigid,
technical sense, for they are adopted to help secure, not override, substantial
justice, and thereby defeat their very aims." Thus, the Court has not hesitated to
view Section 3 of Rule 46 with a liberal outlook, ruling for example that it was not
necessary to attach certified true copies of such material portions of the record as
referred to therein.
The situation in this case bears similarity to that which transpired in Cortez-
Estrada v. Heirs of Samut. Therein, the petitioner had failed to attach material
documents to her petition before the Court of Appeals. The Court of Appeals held the
petition was dismissible for such procedural infirmities, yet it nonetheless proceeded to
rule against the petitioner on the merits. The Supreme Court agreed with the appellate
court that the petition was procedurally infirm, yet found partial merit in its arguments
and consequently granted partial relief in favor of the petitioner. In this case, the Court
of Appeals, in resolving the motion for reconsideration, proceeded to make a
judgment on the merits. Similarly, this Court finds ample basis to review the
decision of the trial court as affirmed by the appellate court, notwithstanding the
procedural flaw that originally accompanied the petition—a flaw which
petitioners did seek to remedy when they belatedly attached the relevant
documents to their motion for reconsideration.
AUTHORITY GRANTED TO A TRIAL JUDGE IN RELATION TO PRE-TRIAL
PROCEEDINGS
The order of the RTC allowing respondents to present evidence ex
parte was undoubtedly to the detriment of petitioners. Since the RTC would only
consider the evidence presented by respondents, and not that of petitioners, the order
strikes at the heart of the case, disallowing as it does any meaningful defense
petitioners could have posed. A judgment of default against a defendant who failed to
attend pre-trial, or even any defendant who failed to file an answer, implies a waiver
only of their right to be heard and to present evidence to support their allegations but
not all their other rights.
The Constitution guarantees that no person shall be deprived of property
without due process of law. One manner by which due process is assured is through
the faithful adherence to the procedural rules that govern the behavior of the party-
litigants. The Rules of Court do sanction, on several instances, penalties for violation
of the Rules that causes the termination of an action without a ruling on the merits, or
bars one party from litigating the same while permitting the other to do so. We noted
earlier that Section 3, Rule 46 authorizes the dismissal of an original petition before the
Court of Appeals for failure to append material portions of the record. Pursuant to
Section 5, Rule 17, the failure of the plaintiff to appear on the date of the presentation
of his/her evidence in chief on the complaint is ground for the court to dismiss the
complaint, without prejudice to the right of the defendant to prosecute the counterclaim
in the same or in a separate action. And under Section 5, Rule 18, the failure of the
plaintiff or defendant to appear during pre-trial authorizes the court to either dismiss the
complaint, if the plaintiff were absent; or to allow the plaintiff to present evidence ex
parte, if the defendant were absent.
The operation of the above-cited provisions may defeat the cause of action or
the defense of the party who violated the procedural rule. Yet it could not be said that
any resultant adverse judgment would contravene the due process clause, as the
parties are presumed to have known the governing rules and the consequences for the
violation of such rules. In contrast, the same presumption could not attach if a party
were condemned to the same outcome even if the party did not violate a prescribed
rule of procedure. Any ruling that disposes of an action or precludes a party from
presenting evidence in support or against thereof must have basis in law, and any ruling
so intentioned without legal basis is deemed as issued with grave abuse of
discretion.26 In the end, a person who is condemned to suffer loss of property without
justifying legal basis is denied due process of law.
Simply put, nothing in the Rules of Court authorizes a trial judge to allow the
plaintiff to present evidence ex parte on account of the absence during pre-trial
of the counsel for defendant.
Sections 4 and 5 of Rule 18 warrant examination:
SEC. 4. Appearance of Parties. – It shall be the duty of the parties and their
counsel to appear at the pre-trial. The non-appearance of a party may be
excused only if a valid cause is shown therefor or if a representative shall
appear in his behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute resolution, and to enter
into stipulations or admissions of facts and of documents.
SEC. 5. Effect of failure to appear. – The failure of the plaintiff to appear when
so required pursuant to the next preceding section shall be cause for dismissal
of the action. The dismissal shall be with prejudice, unless otherwise ordered
by the court. A similar failure on the part of the defendant shall be cause to
allow the plaintiff to present his evidence ex parte and the court to render
judgment on the basis thereof.
Section 4 imposes the duty on litigating parties and their respective counsel
during pre-trial. The provision also provides for the instances where the non-
appearance of a party may be excused. Nothing, however, in Section 4 provides for a
sanction should the parties or their respective counsel be absent during pre-trial.
Instead, the penalty is provided for in Section 5. Notably, what Section 5 penalizes is
the failure to appear of either the plaintiff or the defendant, and not their respective
counsel.
Indeed, the Court has not hesitated to affirm the dismissals of complaints or
the allowance of plaintiffs to present evidence ex parte on account of the absence of a
party during pre-trial. In United Coconut Planters Bank v. Magpayo, the complaint was
dismissed because although the counsel for complainant was present during the pre-
trial hearing, the Court affirmed such dismissal on account of said counsel's failure to
present any special power of attorney authorizing him to represent the complainant
during pre-trial.28 In Jonathan Landoil International Co. v. Mangudadatu, the defendant
and its counsel failed to appear during pre-trial, and the complainants were allowed to
present evidence ex parte. After an adverse decision was rendered against the
defendant, it filed a motion for new trial in which it cited the illness of defendant's
counsel as the reason for his non-appearance during pre-trial. While the Court
acknowledged that such argument was not a proper ground for a motion for new trial,
it also noted that the appearance of the defendant during pre-trial was also mandatory,
and that the defendant failed to justify its own absence during pre-trial.
There are two cases which, at first blush, may seem to affirm the action of the
RTC. In the disbarment case of Miwa v. Medina, a lawyer was suspended from the
practice for one (1) month for, among others, failing to appear during pre-trial, thus
leading to the declaration of his client, the defendant, in default. At the same time, the
Court in Miwadid take the defendant herself to task for also failing to appear during pre-
trial, observing that "the failure of a party to appear at pre-trial, given its mandatory
character, may cause her to be non-suited or considered as in default."32
In Social Security System v. Chaves, the Social Security System (SSS) itself
was named as the defendant in a complaint filed with the RTC of Cagayan de Oro City.
The pre-trial brief was filed by the acting assistant branch manager of the SSS in
Cagayan de Oro City, who happened to be a lawyer and who also entered his
appearance as counsel for the SSS. However, said lawyer was not present during pre-
trial, and the SSS was declared in default and the complainants allowed to present their
evidence ex parte. The Court affirmed such order of default, noting other procedural
violations on the part of SSS, such as the fact that the motion for reconsideration to lift
the order of default lacked verification, notice of hearing and affidavit of merit.
 Notwithstanding, the Court is not convinced that SSS is ample precedent to
affirm an order of default where even though the defendant was present during pre-
trial, defendant's counsel failed to appear for the same hearing. The Court in SSS did
not make any categorical declaration to this effect. Moreover, it can be observed that
in SSS, the counsel himself, the acting assistant branch manager of the SSS, would
have been in addition, the representative of the SSS itself, a juridical person which can
only make an appearance during pre-trial through a natural person as its duly
authorized representative. The Court of Appeals decision upheld in SSS, cited
extensively in our decision therein, expressly affirmed the order of default on the ground
that "it is the discretion of the trial judge to declare a party-defendant as in default for
failure to appear at a pre-trial conference." However, in SSS, neither the Court of
Appeals nor this Court expressly laid relevance to the fact that the counsel himself, as
opposed to the defendant, had not attended the pre-trial.
Upon the other hand, Africa v. Intermediate Appellate Court illuminates the
proper standard within which to view the instant petition. It appeared therein that on the
day of the pre-trial, counsel for the defendant (therein petitioner) had arrived ten
minutes after the case was called. Within that ten-minute span, the trial court had issued
an order in open court declaring the defendant in default and authorizing the plaintiff to
present its evidence ex parte. A mere two days later, the trial court rendered judgment
in favor of plaintiff. The Court reversed the trial court, holding that the order of default
was issued with grave abuse of discretion. The reasoning of the Court was grounded
primarily on the doctrinal rule that frowned against "the injudicious and often impetuous
issuance of default orders,"35 which led in that case to "a deni[al of the defendant's]
basic right to be heard, even after his counsel had promptly explained the reason for
his tardiness at the pre-trial."
Still, it would not be proper to consider Africa as the governing precedent
herein, influential as it may be to our disposition. It was not clear from the narration
in Africa whether the defendant himself was absent during the pre-trial, a circumstance
which is determinative to this petition. Moreover, the Court's tone in Africa indicated
that it was animated by a liberal philosophy towards the procedural rule, implying that
the trial court's reversed action was nonetheless adherent to the strict letter of the rule.
Whether or not the trial court in Africa acted conformably with the rules depends upon
the presence or absence of the defendant therein during pre-trial. It can no longer be
discerned whether the Court so ruled in Africa notwithstanding the presence or
absence of the defendant therein. It would be disingenuous though to assume, as a
means of applying that case as precedent herein, that the defendant was actually
present during the pre-trial in Africa.
Hence, we pronounce that the absence of counsel for defendants at pre-
trial does not ipso facto authorize the judge to declare the defendant as in default
and order the presentation of evidence ex parte. It bears stressing that nothing
in the Rules of Court sanctions the presentation of evidence ex parte upon
instances when counsel for defendant is absent during pre-trial. The Rules do
not countenance stringent construction at the expense of justice and equity. As
the Court has previously enunciated:
We cannot look with favor on a course of action which would place
the administration of justice in a straightjacket for then the result would be a
poor kind of justice if there would be justice at all. Verily, judicial orders, such
as the one subject of this petition, are issued to be obeyed, nonetheless a
non-compliance is to be dealt with as the circumstances attending the case
may warrant. What should guide judicial action is the principle that a
party-litigant is to be given the fullest opportunity to establish the merits
of his complaint or defense rather than for him to lose life, liberty or
properties on technicalities.
Due process dictates that petitioners be deprived of their right to be heard and
to present evidence to support their allegations if, and only if, there exists sufficient
basis in fact and in law to do so. There being a manifest lack of such basis in this case,
petitioners would be unjustly denied of the opportunity to fully defend themselves
should the Court affirm the questioned orders which were evidently issued by the RTC
with grave abuse of discretion. The better and certainly more prudent course of action
in every judicial proceeding is to hear both sides and decide on the merits rather than
dispose of a case on technicalities.
While counsel is somewhat to blame for his non-attendance at pre-trial,
incidentally the operative act which gave birth to the controversy at bar, it would be
most unfair to penalize petitioners for what may be the deficiency of their lawyer when
the consequent penalty has no basis in law. Particularly mitigating in the instant case
is the fact that the counsel for private respondents intimated, at an earlier hearing, a
possibility of an amicable settlement to the case. Then, counsel for petitioners
submitted a manifestation requesting therein that the parties be given ample time to
respectively discuss their proposals and counter-proposals and that the hearing for 23
January 2004 be moved to a later date as may be agreed upon by the parties for
submission of their possible compromise agreement. It may well have been that
counsel for petitioners labored under the false understanding that a compromise
agreement was an imminent possibility. The Court nonetheless notes that counsel was
remiss in assuming that his motion to reset the scheduled hearing would necessarily
be granted by the court a quo.
Be that as it may, there is no clear demonstration that the acts of the
counsel of petitioners were intended to perpetuate delay in the litigation of the
case. Assuming arguendo that the trial court correctly construed the actions of the
counsel of petitioners to be dilatory, it cannot be said that the court was powerless and
virtually without recourse but to order the ex parte presentation of evidence by therein
plaintiffs. We are in some sympathy with the judge who was obviously aggrieved that
the case was dragging on for an undue length of time. But even so, there were other
remedies available to the court.
Among the inherent powers of the courts expressly recognized by the Rules
include the authority to enforce order in proceedings before it, to compel obedience to
its judgments, orders and processes, and to amend and control its process and orders
so as to make them conformable to law and justice. Moreover, the Code of Judicial
Conduct empowers the courts to judiciously take or initiate disciplinary measures
against lawyers for unprofessional conduct. A show cause order to counsel would
have been the more cautious and reasonable course of action to take under the
circumstances then prevailing. In failing to do so, the trial court impetuously deprived
petitioners of the opportunity to meaningfully present an effective defense and to
adequately adduce evidence in support of their contentions.