1. Acampado vs.

Cosmilla (required notice and hearing)

Facts:
 A Petition for the Declaration of the Nullity of Document was filed by respondents against petitioners before the
RTC of Kalibo, Aklan, Branch 6
 In their Amended Complaint, respondents Spouses Cosmilla alleged that the sale of their share on the subject
property was effected thru a forged Special Power of Attorney (SPA) and is therefore null and void.
 RTC rendered a Decision dismissing the complaint of the respondents for failure to prove by preponderance of
evidence that the signatures of the respondents in the SPA were forged
 Aggrieved, respondents filed a Motion for Reconsideration
 For failure of the respondents, however, to comply with the requirement of notice of hearing as required under
Sections 4 and 5 of Rule 15 of the Revised Rules of Court, the court a quo denied the Motion for Reconsideration
in Order11 dated 16 May 2005
 Hence, this PETITION for review on certiorari

Issue:
Is a Motion for Reconsideration a contentious motion that needs to comply with the required notice and hearing and
service to the adverse party?

Ruling:
 YES
 RULE 15, SEC. 4. Hearing of motion
o Except for motions which the court may act upon without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the applicant
o Every written motion required to be heard and the notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter notice.
 SEC. 5. Notice of hearing
o The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of
the hearing which must not be later than ten (10) days after the filing of the motion.
 SEC. 6. Proof of service necessary
o No written motion set for hearing shall be acted upon by the court without proof of service thereof
 The foregoing requirements — that the notice shall be directed to the parties concerned, and shall state the time
and place for the hearing of the motion — are mandatory, and if not religiously complied with, the motion
becomes pro forma
 A motion that does not comply with the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is a
worthless piece of paper which the clerk of court has no right to receive and which the court has no authority to
act upon
 The logic for such requirement is simple: a motion invariably contains a prayer which the movant makes to the
court which is usually in the interest of the adverse party to oppose
 The notice of hearing to the adverse party is therefore a form of due process; it gives the other party the
opportunity to properly vent his opposition to the prayer of the movant
 In keeping with the principles of due process, therefore, a motion which does not afford the adverse party a
chance to oppose should simply be disregarded. Principles of natural justice demand that a right of a party should
not be affected without giving it an opportunity to be heard

 Exception to the General Rule above:

o Nevertheless, the three-day requirement is not a hard and fast rule. Where a party has been given an
opportunity to be heard, the time to study the motion and oppose it, there is compliance with the rule.
The test is the presence of the opportunity to be heard, as well as to have time to study the motion and
meaningfully oppose or controvert the grounds upon which it is based.
Application:
 We here follow the rule and so pronounce that contrary to the findings of the appellate court, petitioners were
not given ample opportunity to vent their side on the issue since they were not able to promptly receive a copy
of the notice of hearing impinging the latter’s right to due process
 We consulted the records and we found that no notice of hearing was appended to the Motion for
Reconsideration of the respondent
 As discussed above, a motion for reconsideration is a litigated motion where the right of the adverse party will be
affected by its admission
 The adverse party in this case had the right to resist the motion because it may result to the reversal of a prior
favorable decision
 The proof of service was therefore indispensable in order to avoid surprises on the opposite party
 The absence thereof is fatal to the motion
 It bears stressing that a motion without notice and hearing, is pro forma, a mere scrap of paper that cannot be
acted by the court
 It presents no question that the court can decide
 The court has no reason to consider it and the clerk has no right to receive it
 Indisputably, any motion that does not contain proof of service and notice to the adverse party is not entitled to
judicial cognizance

2. Ellice Agro-Industrial Corp vs Young (purpose of summons in action in personam)

Facts:
 Respondents (EAIC), represented by Domingo entered into a Contract to Sell to the respondents of a parcel of
land
 respondents made a partial payment to Domingo, but EAIC failed to deliver to respondents the owner’s duplicate
certificate of title of the subject property and the corresponding deed of sale
 Then, respondents filed a Complaint for specific performance against EAIC and Domingo before the RTC
 consequently, respondents caused the annotation of a Notice of Lis Pendens in TCT
 the initial attempt to serve the summons and a copy of the complaint and its annexes on EAIC, through Domingo
was unsuccessful as EAIC could not be located in Rizal Street, Sariaya, Quezon
 Another attempt was made to serve the alias summons on EAIC at the residence of Domingo. SUCCESSFUL

 During pre-trial, Domingo or counsel did not appear, then respondents were allowed to present their evidence ex
parte. RTC ordered EAIC to deliver the owner’s duplicate copy of TCT and execute the deed of sale which became
final and executory
 7 months after finality, EAIC filed a petition for relief from judgment under Rule 38 before the same RTC on the
alleged fraud committed by Domingo in concealing the existence of both the contract to sell and civil case from
EAIC
 RTC denied petition as it was filed out of time
 EAIC filed a petition for annulment of judgment under Rule 47 before the CA
o Grounded on RTC’s lack of jurisdiction over EAIC and the extrinsic fraud committed by Domingo
 CA dismissed the petition for annulment of judgment
 Hence, this petition

Issue: What is the purpose of summons in action in personam?

Ruling:
 It is a settled rule that jurisdiction over the defendant is acquired either upon a valid service of summons or the
defendant’s voluntary appearance in court. When the defendant does not voluntarily submit to the court’s
jurisdiction or when there is no valid service of summons, any judgment of the court which has no jurisdiction
over the person of the defendant is null and void.
  The purpose of summons is not only to acquire jurisdiction over the person of the defendant, but also to give
notice to the defendant that an action has been commenced against it and to afford it an opportunity to be
heard on the claim made against it. The requirements of the rule on summons must be strictly followed,
otherwise, the trial court will not acquire jurisdiction over the defendant.

Other Court discussions:

 Section 13, Rule 14 of the 1964 Rules of Civil Procedure, the applicable rule on service of summons upon a private
domestic corporation then, provides:
o Sec. 13. Service upon private domestic corporation or partnership.―If the defendant is a corporation
organized under the laws of the Philippines or a partnership duly registered, service may be made on the
president, manager, secretary, cashier, agent, or any of its directors.

 Based on the above-quoted provision, for service of summons upon a private domestic corporation, to be effective
and valid, should be made on the persons enumerated in the rule. Conversely, service of summons on anyone
other than the president, manager, secretary, cashier, agent, or director, is not valid.

 The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an
action against it or to insure that the summons be served on a representative so integrated with the corporation
that such person will know what to do with legal papers served on him.

Application:
 In the present case, the 1996 GIS of EAIC, the pertinent document showing EAIC’s composition at the time the
summons was served upon it, through Domingo, will readily reveal that she was not its president, manager,
secretary, cashier, agent or director.
o Due to this fact, the Court is of the view that her honest belief that she was the authorized corporate
secretary was clearly mistaken because she was evidently not the corporate secretary she claimed to be.
 In view of Domingo’s lack of authority to properly represent EAIC, the Court is constrained to rule that there
was no valid service of summons binding on it.

 Granting arguendo that EAIC had actual knowledge of the existence of Civil Case No. 96-177 lodged against it, the
RTC still failed to validly acquire jurisdiction over EAIC.
o In Cesar v. Ricafort-Bautista, it was held that “x x x jurisdiction of the court over the person of the
defendant or respondent cannot be acquired notwithstanding his knowledge of the pendency of a case
against him unless he was validly served with summons. Such is the important role a valid service of
summons plays in court actions.”

 In view of the fact that EAIC was not validly served with summons and did not voluntarily appear in Civil Case
No. 96-177, the RTC did not validly acquire jurisdiction over the person of EAIC. Consequently, the proceedings
had before the RTC and ultimately its November 11, 1999 Decision were null and void.

 The Court cannot likewise subscribe to respondents’ argument that by filing its answer with counterclaim, through
Domingo, with the RTC, EAIC is deemed to have voluntarily submitted itself to the jurisdiction of the RTC.
o In Salenga v. Court of Appeals, the Court stated:
 A corporation can only exercise its powers and transact its business through its board of directors
and through its officers and agents when authorized by a board resolution or its bylaws. The
power of a corporation to sue and be sued is exercised by the board of directors. The physical acts
of the corporation, like the signing of documents, can be performed only by natural persons duly
authorized for the purpose by corporate bylaws or by a specific act of the board

 In this case, at the time she filed the Answer with Counterclaim, Domingo was clearly not an officer of EAIC,
much less duly authorized by any board resolution or secretary’s certificate from EAIC to file the said Answer
 with Counterclaim in behalf of EAIC. Undoubtedly, Domingo lacked the necessary authority to bind EAIC to
Civil Case No. 96-177 before the RTC despite the filing of an Answer with Counterclaim. EAIC cannot be bound
or deemed to have voluntarily appeared before the RTC by the act of an unauthorized stranger.

Wherefore, petition is granted.

3. Valdevieso v Damalerio (summons in action in rem)

February 17, 2005
J. Chico-Nazario
Before this Court is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside the 25 September
1997 Decision and the 10 February 1998 Resolution of the Court of Appeals entitled, Candelario Damalerio and Aurea
Damalerio v. Honorable Antonio S. Alano, et al.

FACTS:
 Valdevieso (petitioner) bought from spouses Uy a parcel of land. The deed of sale was not registered, nor was
the title of the land transferred to petitioner.
 On 07 December 1995, the said property was immediately declared by petitioner for taxation purposes as Tax
Declaration No. l6205 with the City Assessors Office.
 spouses Candelario and Aurea Damalerio (respondents) filed with the Regional Trial Court (RTC) of General
Santos City, a complaint for a sum of money against spouses Lorenzo and Elenita Uy with application for the
issuance of a Writ of Preliminary Attachment.
 On 23 April 1996, the trial court issued a Writ of Preliminary Attachment by virtue of which the property, then
still in the name of Lorenzo Uy but which had already been sold to petitioner, was levied.
 The levy was duly recorded in the Register of Deeds of General Santos City and annotated upon TCT No. T-
30586.
 On 06 June 1996, TCT No. T-30586 in the name of Lorenzo Uy was cancelled and, in lieu thereof, TCT No. T-
74439 was issued in the name of petitioner.
o This new TCT carried with it the attachment in favor of respondents.
 On 14 August 1996, petitioner filed a third-party claim to discharge or annul the attachment levied on the
property covered by TCT No. T-74439 on the ground that the said property belongs to him and no longer to
Lorenzo and Elenita Uy.
 In a resolution dated 21 October 1996, the trial court ruled for the petitioner.
o it held that the levy of the property by virtue of attachment is lawful only when the levied property
indubitably belongs to the defendant.
o Defendant Lorenzo Uy remained the registered owner of the property attached, yet the fact was that he
was no longer the owner thereof as it was already sold earlier to petitioner, hence, the writ of
attachment was unlawful.
 Respondents sought reconsideration thereof which was denied by the trial court in a resolution dated 03
January 1997.
 Respondents appealed to the Court of Appeals.
 The appellate court reversed the resolution.
o It declared that an attachment or levy of execution, though posterior to the sale, but if registered before
the sale is registered, takes precedence over the sale.
o The writ of attachment in favor of the respondents, being recorded ahead of the sale to petitioner, will
therefore take precedence.
 Petitioner moved for reconsideration but this was denied by the Court of Appeals in its Resolution of 10
February 1998.
 Hence, this Petition for Review on Certiorari.
 CONTENTION OF PETITIONER
  The slight delay in the registration, he claims was not due to his fault but attributable to the process involved in
the registration of property such as the issuance of the Department of Agrarian Reform clearance which was
effected only after compliance with several requirements.
 CONTENTION OF RESPONDENT
o They aver that registration of a deed of sale is the operative act which binds the land and creates a lien
thereon. Before the registration of the deed, the property is not bound insofar as third persons are
concerned.
o Since the writ of attachment in favor of respondents was registered earlier than the deed of sale to
petitioner, respondents were of the belief that their registered writ of attachment on the subject
property enjoys preference and priority over petitioners earlier unregistered deed of sale over the same
property.
o
ISSUE: Whether or not attachment is a in rem proceeding?
RULING:
 Yes, an attachment is a in rem proceeding.
 The preference created by the levy on attachment is not diminished even by the subsequent registration of the
prior sale.
 This is so because an attachment is a proceeding in rem.
 It is against the particular property, enforceable against the whole world.
 The attaching creditor acquires a specific lien on the attached property which nothing can subsequently destroy
except the very dissolution of the attachment or levy itself.
 Such a proceeding, in effect, means that the property attached is an indebted thing and a virtual condemnation
of it to pay the owners debt.
 The lien continues until the debt is paid, or sale is had under execution issued on the judgment, or until the
judgment is satisfied, or the attachment discharged or vacated in some manner provided by law.
 Thus, in the registry, the attachment in favor of respondents appeared in the nature of a real lien when
petitioner had his purchase recorded.
 The effect of the notation of said lien was to subject and subordinate the right of petitioner, as purchaser, to the
lien.
 Petitioner acquired ownership of the land only from the date of the recording of his title in the register, and the
right of ownership which he inscribed was not absolute but a limited right, subject to a prior registered lien of
respondents, a right which is preferred and superior to that of petitioner.

ISSUE: whether or not a registered writ of attachment on the land is a superior lien over that of an earlier unregistered
deed of sale.
RULING:
 Yes, a registered writ of attachment on the land is a superior lien over that of an earlier unregistered deed of
sale.
 The act of registration shall be the operative act to convey or affect the land insofar as third persons are
concerned, and in all cases under this Decree, the registration shall be made in the office of the Register of
Deeds for the province or city where the land lies.
 It is to be noted that though the subject land was deeded to petitioner as early as 05 December 1995, it was not
until 06 June 1996 that the conveyance was registered, and, during that interregnum, the land was subjected to
a levy on attachment.
 It should also be observed that, at the time of the attachment of the property on 23 April 1996, the spouses Uy
were still the registered owners of said property.
 Under the cited law, the execution of the deed of sale in favor of petitioner was not enough as a succeeding step
had to be taken, which was the registration of the sale from the spouses Uy to him.
 Insofar as third persons are concerned, what validly transfers or conveys a person’s interest in real property is
the registration of the deed.
 Thus, when petitioner bought the property on 05 December 1995, it was, at that point, no more than a private
transaction between him and the spouses Uy.
 o It needed to be registered before it could bind third parties, including respondents.
 When the registration finally took place on 06 June 1996, it was already too late because, by then, the levy in
favor of respondents, pursuant to the preliminary attachment ordered by the General Santos City RTC, had
already been annotated on the title.

 The settled rule is that levy on attachment, duly registered, takes preference over a prior unregistered sale.
 This result is a necessary consequence of the fact that the property involved was duly covered by the Torrens
system which works under the fundamental principle that registration is the operative act which gives validity to
the transfer or creates a lien upon the land.

Issue: Whether or not the case of Manliguez v. Court of Appealsand Santos v. Bayhon,
applies in the instant case?
RULING:
 Anent petitioners reliance on the rulings laid down in Manliguez v. Court of Appeals and Santos v. Bayhon, we
find the same to be misplaced.
 These cases did not deal at all with the dilemma at hand, i.e. the question of whether or not a registered writ of
attachment on land is superior to that of an earlier unregistered deed of sale.
 In Santos, what was involved were machinery and pieces of equipment which were executed upon pursuant to
the favorable ruling of the National Labor Relations Commission.
 A third party claimed that the machinery were already sold to her, but it does not appear in the facts of the case
if such sale was ever registered.
 Manliguezis similar to Santos, except that the former involved buildings and improvements on a piece of land.
 To stress, in both cited cases, the registration of the sale, if any, of the subject properties was never in issue.
Issue: Whether or not the doctrine of equity applies in the instant case?
RULING:
 As to petitioners invocation of equity, we cannot, at this instance, yield to such principle in the presence of a
law clearly applicable to the case.
 We reiterate that this Court, while aware of its equity jurisdiction, is first and foremost, a court of law.
 While equity might tilt on the side of one party, the same cannot be enforced so as to overrule positive
provisions of law in favor of the other.
 Equity cannot supplant or contravene the law.
 The rule must stand no matter how harsh it may seem. Dura lex sed lex.

DISPOSITIVE PORTION: WHEREFORE, the appealed Decision of the Court of Appeals in CA-G.R. SP No. 43082 dated 25
September 1997, and its Resolution dated 10 February 1998, are hereby AFFIRMED. No costs. SO ORDERED.

4. Sunrise Garden Corporation v CA (voluntary appearance of defendant)

FACTS:
 On November 11, 2002, K-9 Security Agency, joined by First Alliance Real Estate Development, Inc. and
represented by the same counsel, opposed the Motion to cite them in contempt, raising the defense of lack of
jurisdiction over their persons, since they were not bound by the Amended Writ of Preliminary Injunction. The
Opposition stated that:
1.3 The purpose of the Writ of Injunction is to preserve the relation between the parties during the pendency
of the suit. This cannot be applied to K-9 and the Security Guards who are not parties in the case. Neither did
they claim authority from the defendant, for which reason this Honorable Court did not acquire jurisdiction
over them and could not validly enforce the Amended Writ of Injunction against them. . .
 On November 29, 2002, Sunrise Garden Corporation filed a Motion to cite Forefront Security Agency and First
Alliance Real Estate Development, Inc. in contempt. Sunrise Garden Corporation alleged that First Alliance Real
Estate Development, Inc. was notified and voluntarily submitted to the jurisdiction of the court. Sunrise Garden
 Corporation also alleged that First Alliance Real Estate Development, Inc. adopted K-9 Security Agency’s
Opposition.
 On January 29, 2003, the trial court issued an Order stating that since First Alliance Real Estate Development, Inc.
could not prove ownership over the properties, then First Alliance Real Estate Development, Inc. or any of its hired
security agencies must comply with the Amended Writ of Preliminary Injunction.
o K-9 Security Agency and First Alliance Real Estate Development, Inc. filed a Motion for Reconsideration76
reiterating their arguments that since the trial court did not acquire jurisdiction over them, the Writ of
Preliminary Injunction could not be enforced against them.
o First Alliance Real Estate Development, Inc. and K-9 Security Agency’s Motion for Reconsideration was
denied.
 First Alliance Real Estate Development, Inc. thus filed a Petition for Certiorari with prayer for preliminary injunction
and temporary restraining order before the Court of Appeals.
 In a Resolution dated March 7, 2003, the Court of Appeals issued ex parte a temporary restraining order valid for
60 days and later on ordered a writ of preliminary injunction.
 While the Petitions for Certiorari and Prohibition were pending before this court, the Court of Appeals,
on November 5, 2003, granted First Alliance Real Estate Development, Inc.’s Petition for Certiorari and
annulled the Amended Writ of Preliminary Injunction issued by the trial court.

ISSUE: WON First Alliance (defendant) voluntarily appeared in court.

RULING: NO
 Petitioner Sunrise Garden Corporation additionally argues that the trial court acquired jurisdiction because
respondent First Alliance Real Estate Development, Inc. voluntarily appeared in court to argue why it should not
be cited in contempt.
 While Rule 14, Section 20 of the Rules of Court provides that voluntary appearance is equivalent to service of
summons, the same rule also provides that “[t]he inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.”
 In Philippine Commercial International Bank v. Spouses Dy Hong Pi, et al.,214 this court discussed that:
voluntary appearance in court may not always result in submission to the jurisdiction of a court.
o Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the coercive power of
legal processes exerted over his person, or his voluntary appearance in court.
o As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court.
o It is by reason of this rule that we have had occasion to declare that the filing of motions to admit answer,
for additional time to file answer, for reconsideration of a default judgment, and to lift order of default
with motion for reconsideration, is considered voluntary submission to the court’s jurisdiction.
 This, however, is tempered by the concept of conditional appearance, such that a party who makes a special
appearance to challenge, among others, the court’s jurisdiction over his person cannot be considered to have
submitted to its authority.
Prescinding from the foregoing, it is thus clear that:
(1) Special appearance operates as an exception to the general rule on voluntary appearance;
(2) Accordingly, objections to the jurisdiction of the court over the person of the defendant must
be explicitly made, i.e., set forth in an unequivocal manner; and
(3) Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in
instances where a pleading or motion seeking affirmative relief is filed and submitted to the court
for resolution.

APPLICATION:
 The appearance of respondent First Alliance Real Estate Development, Inc. and K-9 Security Agency should not be
deemed as a voluntary appearance because it was for the purpose of questioning the jurisdiction of the trial court.
The records of this case show that the defense of lack of jurisdiction was raised at the first instance and repeatedly
argued by K-9 Security Agency and respondent First Alliance Real Estate Development, Inc. in their pleadings.
DISPOSITION:
WHEREFORE, premises considered, the Petitions in G.R. Nos. 158836 and 158967 are DISMISSED for being
moot and academic. The Petitions in G.R. Nos. 160726 and 160778 are DENIED, and the Decision of the Court
of Appeals in C.A.-G.R. S.P. No. 75758 is AFFIRMED. SO ORDERED.

5. Manotoc vs. Court of Appeals, G.R. No. 130974. August 16, 2006 [Substituted service of summons]
Ponente: Velasco, Jr., J.
Nature of the Case: This case is a petition for review on certiorari of the decision and resolution of the Court of Appeals.
Petitioner Manotoc claims the court a quo (CA) should have annulled the proceedings in the trial court for want of
jurisdiction due to irregular and ineffective service of summons.

FACTS:
 The petitioner is the defendant in Civil Case No. 63337 entitled Agapita Trajano, pro se, and on behalf of the Estate
of Archimedes Trajano v. Imelda ‘Imee’ R. Marcos-Manotoc for Filing, Recognition and/or Enforcement of Foreign
Judgment
 Private respondent Trajano seeks the enforcement of a foreign court’s judgment rendered on May 1, 1991 by the
United States District Court of Honolulu, Hawaii, USA, in a case entitled Agapita Trajano, et al. v. Imee Marcos-
Manotoc a.k.a. Imee Marcos, Civil Case No. 86-0207 for wrongful death of deceased Archimedes Trajano
committed by military intelligence officials of the Philippines allegedly under the command, direction, authority,
supervision, tolerance, sufferance and/or influence of defendant Manotoc

 On July 6, 1993, the trial court issued Summons addressed to petitioner at Alexandra Condominium Corporation
or Alexandra Homes, E2 Room 104, at No. 29 Meralco Avenue, Pasig City
 On July 15, 1993, the Summons and a copy of the Complaint were allegedly served upon Mr. Macky de la Cruz,
an alleged caretaker of petitioner at the condominium unit
 When petitioner failed to file her Answer, the trial court declared her in default through an Order dated October
13, 1993
 On October 19, 1993, petitioner, by special appearance of counsel, filed a Motion to Dismiss on the ground of
lack of jurisdiction of the trial court over her person due to an invalid substituted service of summons.
 Grounds to support the motion, includes, among others, that the procedure prescribed by the Rules on personal
and substituted service of summons was ignored
 Other grounds raised:
o That address indicated in the Complaint (Alexandra Homes) was not her dwelling, residence, or regular
place of business as provided in Section 8, Rule 14 of the Rules of Court
o The party (Macky de la Cruz), who was found in the unit, was neither a representative, employee, nor a
resident of the place
o That she was a resident of Singapore, and
o Whatever judgment rendered in this case would be ineffective and futile

Trial court’s Ruling:

 Rejected Manotoc’s Motion to Dismiss
 Among others, it relied on the presumption that the sheriff’s substituted service was made in the regular
performance of official duty, and such presumption stood in the absence of proof to the contrary
 On December 21, 1994, trial court discarded Manotoc’s plea for reconsideration for lack of merit

CA Ruling:
 Dismissed the petitioner’s Petition for Certiorari and Prohibition
 It adopted the findings of the trial court
  Among others, it ruled that the trial court had acquired jurisdiction over petitioner as there was a valid substituted
service pursuant to Section 8, Rule 14 of the old Revised Rules of Court
 MR was also denied
Hence, this petition

ISSUE: Was there a valid substituted service of summons on petitioner for the trial court to acquire jurisdiction?

RULING:
 No. There was no valid substituted service of summons on petitioner for the trial court to acquire jurisdiction.
 Section 8 of Rule 14 of the old Revised Rules of Court [now Section 7, Rule 14 of the 1997 Rules of Civil Procedure]
which applies to this case provides:
o Section 8. Substituted service. — If the defendant cannot be served within a reasonable time as provided
in the preceding section [personal service on defendant], service may be effected (a) by leaving copies of
the summons at the defendant’s residence with some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendant’s office or regular place of business with some
competent person in charge thereof.

Breakdown of the requirements to effect a valid substituted service:

(1) Impossibility of Prompt Personal Service
 The party relying on substituted service or the sheriff must show that defendant cannot be served promptly
or there is impossibility of prompt service.
 Section 8, Rule 14 provides that the plaintiff or the sheriff is given a “reasonable time” to serve the summons
to the defendant in person, but no specific time frame is mentioned.
 “Reason-able time” is defined as “so much time as is necessary under the circumstances for a reasonably
prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having
a regard for the rights and possibility of loss, if any[,] to the other party.”
 Under the Rules, the service of summons has no set period. However, when the court, clerk of court, or the
plaintiff asks the sheriff to make the return of the summons and the latter submits the return of summons,
then the validity of the summons lapses.
 The plaintiff may then ask for an alias summons if the service of summons has failed. What then is a
reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt
service?
o To the plaintiff, “reasonable time” means no more than seven (7) days since an expeditious processing
of a complaint is what a plaintiff wants.
o To the sheriff, “reasonable time” means 15 to 30 days because at the end of the month, it is a practice
for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the
sheriff for service.
 The Sheriff’s Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases
to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month.
o Thus, one month from the issuance of summons can be considered “reasonable time” with regard to
personal service on the defendant. Sheriffs are asked to discharge their duties on the service of
summons with due care, utmost diligence, and reasonable promptness and speed so as not to
prejudice the expeditious dispensation of justice.
o Thus, they are enjoined to try their best efforts to accomplish personal service on defendant.
o On the other hand, since the defendant is expected to try to avoid and evade service of summons, the
sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant.
 For substituted service of summons to be available, there must be several attempts by the sheriff to
personally serve the summons within a reasonable period [of one month] which eventually resulted in failure
to prove impossibility of prompt service.
o “Several attempts” means at least three (3) tries, preferably on at least two different dates.
o In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility
of service can be confirmed or accepted.
 (2) Specific Details in the Return
 The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted
personal service.
 The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail
in the Return.
 The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s
of the occupants of the alleged residence or house of defendant and all other acts done, though futile, to
serve the summons on defendant must be specified in the Return to justify substituted service.
 The form on Sheriff’s Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs
published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant
personally and the fact of failure.
 Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that “impossibility of prompt
service should be shown by stating the efforts made to find the defendant personally and the failure of such
efforts,” which should be made in the proof of service.

(3) A Person of Suitable Age and Discretion

 If the substituted service will be effected at defendant’s house or residence, it should be left with a person
of “suitable age and discretion then residing therein.”
 A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and
is considered to have enough discernment to understand the importance of a summons.
 “Discretion” is defined as “the ability to make decisions which represent a responsible choice and for which
an understanding of what is lawful, right or wise may be presupposed.”
 Thus, to be of sufficient discretion, such person must know how to read and understand English to
comprehend the import of the summons, and fully realize the need to deliver the summons and complaint
to the defendant at the earliest possible time for the person to take appropriate action.
 Thus, the person must have the “relation of confidence” to the defendant, ensuring that the latter would
receive or at least be notified of the receipt of the summons.
 The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is
of legal age, what the recipient’s relationship with the defendant is, and whether said person comprehends
the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at
least notify the defendant of said receipt of summons. These matters must be clearly and specifically described
in the Return of Summons.

(4) A Competent Person in Charge

 If the substituted service will be done at defendant’s office or regular place of business, then it should be
served on a competent person in charge of the place.
 Thus, the person on whom the substituted service will be made must be the one managing the office or
business of defendant, such as the president or manager; and such individual must have sufficient knowledge
to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects
arising from inaction on the summons.
 Again, these details must be contained in the Return.

APPLICATION
 In this case, the substituted service was INVALID.
 A meticulous scrutiny of the full text of the Sheriff’s Return readily reveals the absence of material data on the
serious efforts to serve the Summons on petitioner Manotoc in person.
 There is no clear valid reason cited in the Return why those efforts proved inadequate, to reach the conclusion
that personal service has become impossible or unattainable outside the generally couched phrases of “on many
occasions several attempts were made to serve the summons x x x personally,” “at reasonable hours during the
day,” and “to no avail for the reason that the said defendant is usually out of her place and/or residence or
premises.”
 Wanting in detailed information, the Return deviates from the ruling— in Domagas v. Jensen and other related
cases— that the pertinent facts and circumstances on the efforts exerted to serve the summons personally must
be narrated in the Return
 It cannot be determined how many times, on what specific dates, and at what hours of the day the attempts were
made.
 Given the fact that the substituted service of summons may be assailed, as in the present case, by a Motion to
Dismiss, it is imperative that the pertinent facts and circumstances surrounding the service of summons be
described with more particularity in the Return or Certificate of Service.
 Apart from the allegation of petitioner’s address in the Complaint, it has not been shown that respondent Trajano
or Sheriff Cañelas, who served such summons, exerted extraordinary efforts to locate petitioner.
 Certainly, the second paragraph of the Complaint only states that respondents were “informed, and so they
allege” about the address and whereabouts of petitioner.
 Before resorting to substituted service, a plaintiff must demonstrate an effort in good faith to locate the defendant
through more direct means.
 More so, in the case in hand, when the alleged petitioner’s residence or house is doubtful or has not been clearly
ascertained, it would have been better for personal service to have been pursued persistently
 In view of in view of the numerous claims of irregularities in substituted service which have spawned the filing
of a great number of unnecessary special civil actions of certiorari and appeals to higher courts, resulting in
prolonged litigation and wasteful legal expenses, the Court rules in the case at bar that the narration of the
efforts made to find the defendant and the fact of failure written in broad and imprecise words will not suffice.
o The facts and circumstances should be stated with more particularity and detail on the number of
attempts made at personal service, dates and times of the attempts, inquiries to locate defendant, names
of occupants of the alleged residence, and the reasons for failure should be included in the Return to
satisfactorily show the efforts undertaken.
o That such efforts were made to personally serve summons on defendant, and those resulted in failure,
would prove impossibility of prompt personal service.
 Moreover, to allow sheriffs to describe the facts and circumstances in inexact terms would encourage routine
performance of their precise duties relating to substituted service—for it would be quite easy to shroud or conceal
carelessness or laxity in such broad terms.
 LASTLY, considering that monies and properties worth millions may be lost by a defendant because of an irregular
or void substituted service, it is but only fair that the Sheriff’s Return should clearly and convincingly show the
impracticability or hopelessness of personal service.

As to other requirements:
 Granting that such a general description be considered adequate, there is still a serious nonconformity from the
requirement that the summons must be left with a “person of suitable age and discretion” residing in
defendant’s house or residence.
 Thus, there are two (2) requirements under the Rules: (1) recipient must be a person of suitable age and discretion;
and (2) recipient must reside in the house or residence of defendant.
 Both requirements were not met.
 In this case, the Sheriff’s Return lacks information as to residence, age, and discretion of Mr. Macky de la Cruz,
aside from the sheriff’s general assertion that de la Cruz is the “resident caretaker” of petitioner as pointed out
by a certain Ms. Lyn Jacinto, alleged receptionist and telephone operator of Alexandra Homes.
o It is doubtful if Mr. de la Cruz is residing with petitioner Manotoc in the condominium unit considering
that a married woman of her stature in society would unlikely hire a male caretaker to reside in her
dwelling.
o With the petitioner’s allegation that Macky de la Cruz is not her employee, servant, or representative, it
is necessary to have additional information in the Return of Summons.
o Besides, Mr. Macky de la Cruz’s refusal to sign the Receipt for the summons is a strong indication that he
did not have the necessary “relation of confidence” with petitioner.
 To protect petitioner’s right to due process by being accorded proper notice of a case against her, the substituted
service of summons must be shown to clearly comply with the rules.
  It has been stated and restated that substituted service of summons must faithfully and strictly comply with the
prescribed requirements and in the circumstances authorized by the rules.
 Further, respondent Trajano failed to demonstrate that there was strict compliance with the requirements of the
then Section 8, Rule 14 (now Section 7, Rule 14 of the 1997 Rules of Civil Procedure).
 Due to non-compliance with the prerequisites for valid substituted service, the proceedings held before the trial
court perforce must be annulled.

 As to the presumption of regularity in the performance:

o For the presumption of regularity in the performance of official duty by a sheriff, the Sheriff’s Return must
show that serious efforts or attempts were exerted to personally serve the summons and that said efforts
failed;
o The presumption of regularity in the performance of official functions by the sheriff is not applicable
where it is patent that the sheriff’s return is defective

Disposition: Petition for Review is granted. RTC Decision and Resolution were reversed and set aside.

NOTES:
Acquisition of Jurisdiction
 Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant’s voluntary
appearance in court.
 When the defendant does not voluntarily submit to the court’s jurisdiction or when there is no valid service of
summons, “any judgment of the court which has no jurisdiction over the person of the defendant is null and void.”
 In an action strictly in personam, personal service on the defendant is the preferred mode of service, that is, by
handing a copy of the summons to the defendant in person.
 If defendant, for excusable reasons, cannot be served with the summons within a reasonable period, then
substituted service can be resorted to.
 While substituted service of summons is permitted, “it is extraordinary in character and in derogation of the
usual method of service.”
 Hence, it must faithfully and strictly comply with the prescribed requirements and circumstances authorized by
the rules.
 Indeed, “compliance with the rules regarding the service of summons is as much important as the issue of due
process as of jurisdiction.”

 The court’s jurisdiction over a defendant is founded on a valid service of summons. Without a valid service, the
court cannot acquire jurisdiction over the defendant, unless the defendant voluntarily submits to it. The defendant
must be properly apprised of a pending action against him and assured of the opportunity to present his defenses
to the suit. Proper service of summons is used to protect one’s right to due process.

6. Republic of the Philippines vs. Sandiganbayan and Ferdinand Marcos Jr.

G.R. No. 148154, December 17, 2007
QUISUMBING, J.:
Principle: Bill of Particulars, when proper

Facts:
- This special civil action for certiorari assails two resolutions of the Sandiganbayan (anti-graft court or court) issued during
the preliminary legal skirmishes in this 20-year case: (1) the January 31, 2000 Resolution which granted the motion for a
bill of particulars filed by executor Ferdinand R. Marcos, Jr. (respondent) on behalf of his fathers estate and (2) the March
27, 2001 Resolution which denied the governments motion for reconsideration.
- During the pre-trial of the case against the Marcoses, respondent asked for three extensions totaling 35 days to file an
answer. The court granted the motions and gave him until July 17, 1999 to file an answer. But instead of filing an answer,
respondent filed on July 16, 1999, a Motion For Bill of Particulars, praying for clearer statements of the allegations which
he called mere conclusions of law, too vague and general to enable defendants to intelligently answer.
- The PCGG opposed the motion, arguing that the requested particulars were evidentiary matters; that the motion was
dilatory; and that it contravened the May 28, 1999 Resolution granting respondents Motion for Leave to File a Responsive
Pleading.
- The anti-graft court, however, upheld respondent, explaining that the allegations against former President Marcos were
vague, general, and were mere conclusions of law. It pointed out that the accusations did not specify the ultimate facts of
former President Marcos participation in Cruzs alleged accumulation of ill-gotten wealth, effectively preventing
respondent from intelligently preparing an answer. It noted that this was not the first time the same issue was raised
before it, and stressed that this Court had consistently ruled in favor of the motions for bills of particulars of the defendants
in the other ill-gotten wealth cases involving the Marcoses.
- Not convinced by petitioners Motion for Reconsideration, the court ruled that the motion for a bill of particulars was not
dilatory considering that the case was only at its pre-trial stage and that Section 1, Rule 12 of the 1997 Rules of Civil
Procedure allows its filing. Hence, this petition.

Issue: Did the court commit grave abuse of discretion amounting to lack or excess of jurisdiction in granting respondents
motion for a bill of particulars as executor of former President Marcos estates considering that the deceased defendant
was then a defaulting defendant when the motion was filed?

Ruling: No.
In this case, former President Marcos was declared in default for failure to file an answer. He died in Hawaii as an exile
while this case was pending, since he and his family fled to Hawaii in February 1986 during a people-power revolt in Metro
Manila. His representatives failed to file a motion to lift the order of default. Nevertheless, respondent, as executor of his
fathers estate, filed a motion for leave to file a responsive pleading, three motions for extensions to file an answer, and a
motion for bill of particulars all of which were granted by the anti-graft court.

Given the existence of the default order then, what is the legal effect of the granting of the motions to file a responsive
pleading and bill of particulars? In our view, the effect is that the default order against the former president is deemed
lifted.

Considering that a motion for extension of time to plead is not a litigated motion but an ex parte one, the granting of
which is a matter addressed to the sound discretion of the court; that in some cases we have allowed defendants to file
their answers even after the time fixed for their presentation; that we have set aside orders of default where defendants
failure to answer on time was excusable; that the pendency of the motion for a bill of particulars interrupts the period to
file a responsive pleading; and considering that no real injury would result to the interests of petitioner with the granting
of the motion for a bill of particulars, the three motions for extensions of time to file an answer, and the motion with leave
to file a responsive pleading, the anti-graft court has validly clothed respondent with the authority to represent his
deceased father. The only objection to the action of said court would be on a technicality. But on such flimsy foundation,
it would be erroneous to sacrifice the substantial rights of a litigant. Rules of procedure should be liberally construed to
promote their objective in assisting the parties obtain a just, speedy and inexpensive determination of their case.

Issue: When is bill of particular proper?

Ruling: As understood under Section 1 of Rule 12, mentioned above, a motion for a bill of particulars must be filed within
the reglementary period for the filing of a responsive pleading to the pleading sought to be clarified. This contemplates
pleadings which are required by the Rules to be answered under pain of procedural sanctions, such as default or implied
admission of the facts not responded to.

7. Degayo vs Magbanua-Dinglasan (res judicata as a ground for a motion to dismiss)

Facts:
 Lot No. 861 is a 36,864 sq. m. parcel registered in the name of Degayo’s deceased parents, spouses Marcelo Olmo
and Rosalia Labana
  On the other side of Jalaud River, opposite Lot No. 861, lies a 153,028-square-meter parcel of land, designated as
Lot No. 7328 of the Cadastre of Pototan, Iloilo, collectively owned by the respondents
 Sometime in the 1970’s the Jalauad River steadily changed its course and moved southwards towards the banks
of Pototan, where Lot No. 7328 lies, leaving its old riverbed dry. Eventually, the course of the Jalaud River
encroached on Lot No. 7328.
o As a result, Lot No. 7328 progressively decreased in size while the banks adjacent to Lot No. 861
gradually increased in land area.
 Degayo and the tenants believed that the area was an accretion to Lot No. 861. As a result, her tenants,
commenced cultivating and tilling that disputed area with corn and tobacco.
 The respondents, on the other hand, argued that the disputed property was an abandoned riverbed, which should
rightfully belong to them to compensate for the erstwhile portion of Lot No 7328
 the respondents filed a complaint for ownership and damages against the tenants with RTC Iloilo (Civil Case No
16047) (1st civil case)
o Degayo sought to intervene but was denied
o Degayo participated as witness for the defense alleging same matters and arguments in her civil case
18328 (refer below)
 Instead, Degayo initiated the present suit against respondents for declaration of ownership with damages (Civil
case No 18328) (2nd civil case)
o Degayo alleged to have acquired Lot No. 861 by inheritance by virtue of a Quitclaim Deed and that she
had been in possession of that land since 1954.
 RTC decided in favor of respondents in civil case 16047
o The tenants promptly filed an appeal but they failed to file an appeal brief, resulting to a dismissal of their
appeal per resolution dated June 20, 1999
 In civil case 18328, court found in favor of Degayo and declared property in question as an accretion to Lot No
861, hence, an appeal to CA
 CA granted respondents’ appeal and reversed RTC decision in civil case 18328
o Properties are abandoned riverbeds which rightfully belongs to respondents
o The CA likewise noted that the previous RTC Branch decision in Civil Case No. 16047 is conclusive to the
title of the thing, being an aspect of the rule on conclusiveness of judgment
 Degayo filed the present petition for review on certiorari under Rule 45
o The CA erred in declaring the RTC Branch 27 decision in Civil Case No. 16047 conclusive upon Degayo
when she was not even a party in the said Civil Case.

Respondents’ argument: decision in Civil case no 16047 constitutes res judicata

Issue: Whether or not the court’s decision in Civil Case No 16047 constituted res judicata?

Ruling: YES.

Res judicata
 Res judicata literally means “a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled
by judgment.” It also refers to the “rule that a final judgment or decree on the merits by a court of competent
jurisdiction is conclusive of the rights of the parties or their privies in all later suits on points and matters
determined in the former suit.”
 It rests on the principle that parties should not to be permitted to litigate the same issue more than once; that,
when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an
opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be
conclusive upon the parties and those in privity with them in law or estate.

 This judicially created doctrine exists as an obvious rule of reason, justice, fairness, expediency, practical necessity,
and public tranquility. Moreover, public policy, judicial orderliness, economy of judicial time, and the interest of
litigants, as well as the peace and order of society, all require that stability should be accorded judgments, that
controversies once decided on their merits shall remain in repose, that inconsistent judicial decision shall not be
 made on the same set of facts, and that there be an end to litigation which, without the doctrine of res judicata,
would be endless.

 The doctrine of res judicata is set forth in Section 47 of Rule 39 of the Rules of Court This provision comprehends
two distinct concepts of res judicata: (1) bar by former judgment and (2) conclusiveness of judgment.
o The first aspect is the effect of a judgment as a bar to the prosecution of a second action upon the same
claim, demand or cause of action. In traditional terminology, this aspect is known as merger or bar; in
modern terminology, it is called claim preclusion.
o The second aspect precludes the re-litigation of a particular fact of issue in another action between the
same parties on a different claim or cause of action. This is traditionally known as collateral estoppel; in
modern terminology, it is called issue preclusion.

2nd aspect: Conclusiveness of judgment

 Conclusiveness of judgment finds application when a fact or question has been squarely put in issue, judicially
passed upon, and adjudged in a former suit by a court of competent jurisdiction. The fact or question settled by
final judgment or order binds the parties to that action (and persons in privity with them or their successors-in-
interest), and continues to bind them while the judgment or order remains standing and unreversed by proper
authority on a timely motion or petition;
 the conclusively settled fact or question furthermore cannot again be litigated in any future or other action
between the same parties or their privies and successors-in-interest, in the same or in any other court of
concurrent jurisdiction, either for the same or for a different cause of action. Thus, only the identities of parties
and issues are required for the operation of the principle of conclusiveness of judgment.
 While conclusiveness of judgment does not have the same barring effect as that of a bar by former judgment
that proscribes subsequent actions, the former nonetheless estops the parties from raising in a later case the
issues or points that were raised and controverted, and were determinative of the ruling in the earlier case

Application:
 In the present case, it is beyond dispute that the judgment in Civil Case No. 16047 has attained finality in view of
the tenant’s abandonment of their appeal to the CA.
 Moreover, records show that that decision was adjudicated on the merits, i.e., it was rendered after a
consideration of the evidence or stipulations submitted by the parties at the trial of the case by a court which had
jurisdiction over the subject matter and the parties.

 We likewise find that there is an identity of parties in Civil Case No. 16047 and the present case.
o There is identity of parties where the parties in both actions are the same, or there is privity between
them, or they are “successors-in-interest by title subsequent to the commencement of the action,
litigating for the same thing and under the same title and in the same capacity.”
 Absolute identity of parties is not required, shared identity of interest is sufficient to invoke the coverage of this
principle. Thus, it is enough that there is a community of interest between a party in the first case and a party in
the second case even if the latter was not impleaded in the first case.

 It is not disputed that respondents were the plaintiffs in Civil Case No. 16047. Degayo, however insists that she
is not bound by the decision in Civil Case No. 16047 as she was not made a party in that case.

 We, however, refuse to subscribe to this technical interpretation of the Rules. In Torres v. Caluag, we held that a
real litigant may be held bound as a party even if not formally impleaded because he had his day in court and
because her substantial rights were not prejudiced.

 In the present case, Degayo had the fullest opportunity to ventilate her accretion claim Civil Case No. 16047. In
her testimony, she asserted that she inherited Lot No. 861 from her parents and that she has been in possession
of that parcel of land since 1954.
o She further stressed that the disputed parcel of land has been occupied and tilled by her tenants and that
it was the result of the gradual and continuous deposit of the river. Notably, these are the same
 allegations that Degayo asserted in the present case, which have been previously considered and
evaluated by the RTC Branch 27 in Civil Case No. 16047.

 Likewise, there exists a community of interest between Degayo and her tenants, who were respondents in Civil
Case No. 16047. One test to determine substantial identity of interest would be to see whether the success or
failure of one party materially affects the other.
o In the present case, Degayo is suing for the ownership of the disputed land. Degayo’s rights over the
disputed land is predicated on the same defenses that his alleged tenants interposed in Civil Case No.
16047, that is, their perceived rights which emanated from the disputed accretion to Lot No. 861. The
interests of Degayo and the tenants in relation to the two cases are inextricably intertwined in that both
their claims emanate from a singular fundamental allegation of accretion.

 Moreover, Degayo and the respondents are litigating the same properties subject of the antecedent cases
inasmuch as they claim better right of ownership.
o Degayo even admitted this in her petition wherein she stated that “the land subject of Civil Case No.
16047 is the same property subject of the case at bench.” Notably, the ownership of the disputed parcel
of land has been unequivocally settled in Civil Case No. 16047.

 The fact that the present cause of action is based on an accretion claim does not prevent the application of res
judicata. For, res judicata, under the concept of conclusiveness of judgment, operates even if no absolute
identity of causes of action exists.
o Res judicata, in its conclusiveness of judgment concept, merely requires identity of issues. We thus agree
with the uniform view of the CA — on the application of conclusiveness of judgment to the present case.

Wherefore, we deny the petition for lack of merit.

8. Douglas Lu Ym vs. Gertrudes Nabua

G.R. No. 161309. February 23, 2005
TINGA, J.:
Principle: dismissal not granted, certiorari as remedy

Facts:
- The instant petition stemmed from an Amended Complaint filed by the private respondents against the petitioner, for
Accounting with TRO and Injunction, on May 15, 2002.
- On August 16, 2002, the petitioner filed an Omnibus Motion to Dismiss the Amended Complaint.
-On August 29, 2002, the private respondents filed their Opposition to the Omnibus Motion to Dismiss Amended
Complaint.
- After the filing of petitioners Reply to the Opposition to the Motion to Dismiss Amended Complaint, the incident was
submitted for resolution pursuant to the August 30, 2002 Order of the court a quo.
- In resolving the Omnibus Motion to Dismiss the Amended Complaint, the lower court ruled as follows:
There are justiciable questions raised in the pleadings of the herein parties which are proper subject of a full blown
trial. The Omnibus Motion to Dismiss Amended Complaint is hereby denied.
- The MR filed by the petitioner was resolved by the trial court.
- Petitioner filed a Petition for Certiorari and Prohibition Under Rule 65 With Prayer for the Issuance of Temporary
Restraining Order and/or Writ of Preliminary Injunction, contending that the trial court committed grave abuse of
discretion in denying his motion to dismiss.
- The appellate court dismissed the petition holding that the assailed orders may only be reviewed in the ordinary course
of law by an appeal from the judgment after trial. Thus, the proper recourse was for petitioner to have filed an answer
and proceeded to trial since the issues raised in his motion to dismiss require presentation of evidence aliunde. An
exception is when the trial court acts with grave abuse of discretion in denying the motion to dismiss, in which case a
petition for certiorari under Rule 65 may be proper. This, the trial court did not commit.
- Moreover, the CA declared that although the assailed orders were briefly phrased, the trial court complied with the
requirements set forth under Rule 16 of the 1997 Rules of Civil Procedure (Rules) on the resolution of motions to dismiss.
- With the denial of his Motion for Reconsideration, petitioner is now before this Court seeking a review of the appellate
courts Decision and Resolution.

Issue: whether the Court of Appeals erred in dismissing the petition for certiorari and in holding that the trial court did
not commit grave abuse of discretion in denying petitioners motion to dismiss.

Ruling: No.

An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as
it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is
that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed
to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of
an appeal unless and until a final judgment or order is rendered. In order to justify the grant of the extraordinary remedy
of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction.

Accordingly, considering that the order of the trial court is a patent nullity for failure to comply with a mandatory
provision of the Rules, petitioner was correct in directly assailing the order on certiorari before the Court of Appeals.

However, while it was error for the appellate court to rule that the trial court did not commit grave abuse of discretion in
denying petitioners motion to dismiss, it does not necessarily follow that the motion to dismiss should have been granted.
The instant petition raises significant factual questions as regards petitioners claim that the Amended Complaint should
have been dismissed which are properly addressed to the trial court. Moreover, it cannot be gainsaid that the trial court
should be given the opportunity to correct itself by evaluating the evidence, applying the law and making an appropriate
ruling. A remand of the case to the trial court for further proceedings is, therefore, in order.

9. Roasters Philippines, Inc. vs. Gaviola, G.R. No. 191874, September 2, 2015 [Dismissal with prejudice, non prosequitor]

Ponente: Perez, J.

Nature of the Case: This case is a special civil action in the Supreme Court. This petition for Certiorari seeks o reverse the
Decision and Resolution of CA, which annulled the Orders of the RTC that the complaint be dismissed for failure of
respondents to prosecute the case.

FACTS:
 On April 9, 2003, respondents George Gaviola and Maria Leisa M. Gaviola (Maria Leisa), together with their
children Karla Helene, Kashmeer Georgia and Klaire Marlei, filed a Complaint for Damages against Roasters
Philippines before the RTC of Las Piñas City
 The family was hospitalized due to “acute gastroenteritis and possible food poisoning” when they dined at Kenny
Rogers Roasters restaurant Duty-Free Branch in Parañaque
 Petitioner filed a Motion to Dismiss on the ground of failure to state a cause of action
 The trial court denied the motion to dismiss, as well as the subsequent motion for reconsideration filed by
petitioner.
 Petitioner alleged the following that:
o The complaint states no cause of action;
o It is not the direct and real owner of the said Kenny Rogers branch; and
o There was no valid demand made by respondents.
 Petitioner counterclaimed for damages.
 Meanwhile, petitioner filed a Petition for Certiorari before the Court of Appeals questioning the refusal of the
trial court to dismiss the complaint.
 CA Ruling:
 On March 14, 2005, it dismissed the petition
 On March 7, 2006, it issued a Resolution declaring the March 14, 2005 Decision to have become final and
executory as of 20 July 2005

 On April 26, 2007, petitioner filed a Motion to Dismiss on the ground of failure of respondents to prosecute the
pending case alleging that respondents had not filed any pleading to revive or reactivate their case since the
March 14, 2005 Decision of the CA has become final and executory
 In response to the Motion to Dismiss, respondents filed a Manifestation with Motion to Set the Case for Pre-Trial
 The trial court denied the Motion to Dismiss filed by petitioner and set the pretrial to August 6, 2007. And
eventually, the trial court set the hearing for May 19, 2008
 During the presentation of their evidence-in-chief on May 19, 2008, respondents failed to attend the hearing.
 Consequently, the trial court issued an Order dismissing the Complaint for failure to prosecute pursuant to
Section 3, Rule 17 of the Rules of Court
 Respondents’ filed a Motion for Reconsideration, which was likewise denied
o They changed their counsel and the new counsel filed a Motion for Leave to file a Second Motion for
Reconsiderations
o Filed a Notice of Appeal, but TC denied the appeal on the ground that the orders appealed from are mere
interlocutory orders
o Filed a petition for certiorari before the CA, alleging grave abuse of discretion on the part of the trial court
judge in dismissing the case for failure to prosecute, for affirming the dismissal of the case, and for denying
the appeal taken by respondents.
 CA annulled the orders of the TC and directed the reinstatement of the case.
 Hence, this petition.

ISSUE: Should the case be dismissed for failure of respondents to prosecute?

RULING:
 Yes. The case should be dismissed for failure of respondents to prosecute.
 Section 3, Rule 17 of the 1997 Rules of Civil Procedure, provides:
o Sec. 3. Dismissal due to fault of plaintiff.— If, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his evidence-in-chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may
be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right
of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall
have the effect of an adjudication upon the merits, unless otherwise declared by the court.
 An action may be dismissed for failure to prosecute in any of the following instances:
1) If the plaintiff fails to appear at the time of trial; or
2) If he fails to prosecute the action for an unreasonable length of time; or
3) If he fails to comply with the Rules of Court or any order of the court.

 The fundamental test for NON PROSEQUITUR is whether, under the circumstances, the plaintiff is chargeable
with want of due diligence in failing to proceed with reasonable promptitude.
o There must be unwillingness on the part of the plaintiff to prosecute.

APPLICATION
 In this case, the basis of the Trial Court’s pronouncement of the dismissal of the case for failure to prosecute in
accordance with Section 3, Rule 17 of the 1997 Rules of Civil Procedure lies on the first of three instances
mentioned in the Rules, i.e., that plaintiffs failed to appear at the time of trial.
 The excuse proffered by respondents was not acceptable to the trial court
o Trial Court denied the motion for reconsideration by respondent
  The conclusion of the trial court is well-based.
o The factual antecedents were unrebutted.
o Furthermore, the actions exhibited by respondents demonstrate their lack of interest in prosecuting the
case.
o Almost two years had lapsed from finality of the CA Decision dated March 14, 2005, but respondents have
not filed any pleading to revive the case.
o Respondents acted only upon the behest of petitioner who filed a Motion to Dismiss.
o On the scheduled pretrial on August 6, 2007, respondents and counsel again failed to appear.
o Respondents failed to attend the mediation set by the trial court.
o And finally, on the May 19, 2008 hearing for the initial presentation of their evidence-in-chief,
respondents failed to appear.
 All told, the trial court correctly dismissed the case for failure of respondents to prosecute.

OTHER ISSUE: Was a second motion for reconsideration proper in this case?

RULING:
 No. A second motion for reconsideration was not proper in this case.
 As a rule, a second motion for reconsideration, is a prohibited pleading which shall not be allowed except for
extraordinarily persuasive reasons and only after an express leave shall have first been obtained
 In this case, SC affirmed that the trial court found no persuasive reason to grant the Second Motion for
Reconsideration.

Disposition: The petition is granted. Decision and Resolution of CA are reversed and set aside. RTC orders are reinstated
for the trial on petitioner’s counterclaim.

NOTES:
The trial court’s basis for dismissing the case is summed up a follow:
 In view of the objection interposed by [petitioner’s] counsel Atty. Chemtou Patricia B. Lamit for the postponement
of the hearing and considering that the [respondents] have been long notified of today’s hearing, and considering
further that none of the [respondents’] supposed ten (10) witnesses particularly the [respondents] themselves
appeared, the Court is constrained to DISMISS this case for failure to prosecute in accordance with Section 3, Rule
17 of the 1997 Rules of Civil Procedure.

Section 3, Rule 17 of the 1997 Rules of Civil Procedure is explicit that the dismissal of the complaint due to failure to
prosecute “shall have the effect of an adjudication upon the merits unless otherwise declared by the Court.”

10. Anti-Chinese League vs. Felix, (in relation to parties to a suit, Rule 3, Section 15 and service upon an entity without
a juridical personality under Rule 14, Section 8)

Facts:
 This is a petition for mandamus instituted by the "AntiChinese League of the Philippines" against the respondents
on the ground that the respondent Judge has refused and refuses to allow the petitioner to appear and oppose
the petition for naturalization filed by the other respondent Teodoro Lim pending in the Court of First Instance of
Manila.
 Section 3, Rule 67 of the Rules of Court provides:
o Petition for mandamus
o When any tribunal, corporation, board, or person unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy, and adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the fact with certainty and praying that judgment
 be rendered commanding the defendant, immediately or at some other specified time, to do the act
required to be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant, with costs
 From the foregoing provisions it clearly appears that a special civil action of mandamus may be instituted only by
the "person aggrieved" by the act of a tribunal that unlawfully excludes said person from the use and enjoyment
of a right to which he is legally entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law
 There is no doubt that if the petitioner herein were a person and has the legal right to intervene as party in the
naturalization proceeding above mentioned, and the respondent judge excluded him from the use and enjoyment
of his said right by refusing to allow him to intervene therein as oppositor, mandamus would lie

Issue No. 1:
Whether the petitioner is a person either natural or juridical

Ruling:
 NO
 From the pleadings and memoranda of the parties it appears evident that the petitioner is a civic organization or
association representing a group of Filipino citizens, but it does not constitute a juridical person or entity; and
since only natural or juridical persons may be parties, either in civil actions or special proceedings, according to
section 2, Rule 73, in connection with section 1, Rule 3, of the Rules of Court, the petitioner cannot be a party in
the said naturalization proceeding nor institute the present action of mandamus in this Court
 In case of association of natural persons not legally organized as a juridical entity, each and every one of the
members thereof must be made parties, and the only exceptions are, first, when the parties are so numerous that
it is impracticable to bring all of them in court, in which case one or more may be made parties if they represent
sufficiently the interest of all (section 12, Rule 3), and, second, when two or more persons associated in any
business transact such business under a common name, in which case they may be sued by such common name,
whether it comprises the names of such persons or not (section 15, Rule 3)
 And the petitioner does not fall under these two exceptions

Issue:
WON petitioner, assuming it is a natural or juridical person, has the legal right to appear as oppositor in the naturalization
proceeding instituted by Teodoro Lim, the other respondent

Ruling:
 NO
 It is plain that it has no right of action against the respondents, for the simple reason that it is not aggrieved by
the act of the respondent judge that refused to allow him to intervene as a party in the naturalization proceeding,
because there is no law granting the petitioner such right
 In other words, because the petitioner has no legal interest in opposing the application of the respondent Teodoro
Lim for naturalization
 The Solicitor General, personally or through his delegate, and the provincial fiscal, are the only officers or persons
authorized by law to appear on behalf of the government and oppose an application for naturalization or move
for the cancellation of a naturalization certificate already issued (sections 10,
 18, Commonwealth Act No. 473)
 The government as an agency of the people represents the public, and therefore the Solicitor-General who
appears on behalf of the government represents the public.