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RULE 13 (Filing and Service of Pleadings)

Private respondent Peter Cosalan was the General Manager of Petitioner Benguet Electric Cooperative, Inc.
respondent Cosalan received Audit Memorandum No. 1 issued by the ("COA"). This Memorandum noted that cash
advances received by officers and employees of petitioner Beneco had been virtually written off in the books of
Beneco.COA directed petitioner Beneco to secure the approval of the National Electrification Administration ("NEA")
before writing off or condoning those cash advances, and recommended the adoption of remedial measures.
another Memorandum was issued by COA Audit Memorandum No. 2 addressed to respondent Peter Cosalan,
inviting attention to the fact that the audit of per diems and allowances received by officials and members of the Board
of Directors of Beneco showed substantial inconsistencies with the directives of the NEA. The Audit Memorandum
once again directed the taking of immediate action in conformity with existing NEA regulations.
Having been made aware of the serious financial condition of Beneco and what appeared to be mismanagement,
respondent Cosalan initiated implementation of the remedial measures recommended by the COA. The respondent
members of the Board of Beneco reacted by adopting a series of resolutions. These Board Resolutions abolished the
housing allowance of respondent Cosalan; reduced his salary and his representation and commutable allowances;
directed him to hold in abeyance all pending personnel disciplinary actions; and struck his name out as a principal
signatory to transactions of petitioner Beneco.
The respondent Beneco Board members adopted another series of resolutions which resulted in the ouster of
respondent Cosalan as General Manager of Beneco and his exclusion from performance of his regular duties as
such, as well as the withholding of his salary and allowances.
respondent Cosalan requested petitioner Beneco to release the compensation due him. Beneco, acting through
respondent Board members, denied the written request of respondent Cosalan.
Respondent Cosalan then filed a complaint with the National Labor Relations Commission ("NLRC") against
respondent members of the Beneco Board, challenging the legality of the Board resolutions which ordered his
suspension and termination from the service and demanding payment of his salaries and allowances. the Labor
Arbiter rendered a decision (a) confirming Cosalan's reinstatement; (b) ordering payment to Cosalan of his
backwages and allowances by petitioner Beneco and respondent Board members, jointly and severally.
Respondent Board members appealed to the NLRC, and there filed a Memorandum on Appeal. Petitioner Beneco did
not appeal, but moved to dismiss the appeal filed by respondent Board members and for execution of judgment. By
this time, petitioner Beneco had a new set of directors.
In a decision, public respondent NLRC modified the award rendered by the Labor Arbiter by declaring that petitioner
Beneco alone, and not respondent Board members, was liable for respondent Cosalan's backwages and allowances.

W/N the NLRC had acted with grave abuse of discretion in accepting and giving due course to respondent Board
members' appeal although such appeal had been filed out of time

Respondent Board member's contention runs counter to the established rule that transmission through a private
carrier or letter-forwarder instead of the Philippine Post Office is not a recognized mode of filing pleadings.
5The established rule is that the date of delivery of pleadings to a private letter-forwarding agency is not to be
considered as the date of filing thereof in court, and that in such cases, the date of actual receipt by the court, and not
the date of delivery to the private carrier, is deemed the date of filing of that pleading. 6
There, was, therefore, no reason grounded upon substantial justice and the prevention of serious miscarriage of
justice that might have justified the NLRC in disregarding the ten-day reglementary period for perfection of an appeal
by the respondent Board members. Accordingly, the applicable rule was that the ten-day reglementary period to
perfect an appeal is mandatory and jurisdictional in nature, that failure to file an appeal within the reglementary period
renders the assailed decision final and executory and no longer subject to review. 7 The respondent Board members
had thus lost their right to appeal from the decision of the Labor Arbiter and the NLRC should have forthwith
dismissed their appeal memorandum.
*Respondent Board members, however, insist that their Memorandum on Appeal was filed on time because it was
delivered for mailing on 1 May 1988 to the Garcia Communications Company, a licensed private letter carrier. The
Board members in effect contend that the date of delivery to Garcia Communications was the date of filing of their
appeal memorandum.

Eliseo Alimpoos and Ciriaca Alimpoos - Petitioner
Pedro Baclay, Catalino Yamilo, Rafael Capangpangan, Dalmacio Ygot, Eufrocina Estores and Sgt. Millardo M. PatesWitnesses.
Reynaldo Mosquito - Respondent/Accused.
Matilde A. Mosquito is the Accuseds wife.
Court of Appeals - Appellate Tribunal;
Judge Montano A. Ortiz - Trial Judge, and the Municipal Judge
The Accused was detained by the Chief of Police of Bayugan, Agusan, by virtue of a Warrant of Arrest issued by the
Municipal Judge in the Criminal Case, which was a prosecution for Robbery with Less Serious Physical Injuries. The
place allegedly robbed belonged to the Offended Parties. Contending that the Warrant was issued without the
observance of the legal requirements for the issuance thereof, the Accused, then detained, and his wife instituted the

Habeas Corpus case before the Trial Court.

After due hearing in the Habeas Corpus case, respondent Trial Judge issued the appealed Order declaring the
detention of the Accused illegal
[The Offended Parties and the Witnesses, except Sgt. Pates, were represented by the law firm of Seno, Mendoza and
Associates, with offices located in Cebu City.
The Municipal Judge, the Chief of Police, and Patrolmen Libres and Galimba, who were represented by the Acting
Provincial Fiscal of Butuan City,
Sgt. Pates was represented by Capt. Igualdad Cunanan, and reiterated substantially the same defense.]
The Acting Provincial Fiscal of Agusan received copy of said ORDER on March 31, 1966, and on April 1, 1966,
moved for extension of time within which to appeal, but eventually desisted from doing so.
On April 4, 1966, counsel for the Offended Parties and the Witnesses mailed from Cebu City a Notice of Appeal to the
Court of Appeals stating that:
Undersigned counsel received a copy of the order only today cranad(April 4, 1966) which copy was handed to him by
defendant cranad(petitioner) Eliseo Alimpoos.
The appeal was opposed by the Accused on the ground that it was filed beyond the 48-hour reglementary period
within which to perfect an appeal in Habeas Corpus proceedings.
respondent Trial Judge dismissed their appeal thus:
The Offended Parties resorted to a Mandamus proceeding before the Court of Appeals seeking to compel respondent
Trial Judge to give due course to said appeal.
CA denied the mandamus
W/n the appeal was done beyond the reglementary period
Since the registered mail was received in Cebu City only on April 11, 1966, it is not unlikely that the law office and
addressee, as alleged by it, received the mail only three days after, or on April 14, 1966.
registered mail with Receipts #'s can not refer to personal receipt by the said law office for the obvious reason that its
office being at Cebu City, personal service would not have been possible in Agusan.
It is apparent then that both respondent Trial Judge and the Appellate Tribunal committed error in holding that the
Offended Parties appeal was beyond the reglementary period. Service on the Offended Party, Eliseo Alimpoos, on
March 31, 1966 cannot be deemed as notice in law to his counsel. 8 Under the circumstances, therefore, reliance
may be placed on the assertion of counsel that the Offended Party, Eliseo Alimpoos, had given him a copy of the
ORDER only on April 4, 1966, which must be deemed as the date of notice to said counsel of the ORDER. Counsel
lost no time in mailing his Notice of Appeal on the same day, April 4, 1966 from Cebu. 9 Procedurally, the appeal was
seasonably filed.


Civil Case No. A-413 is an action for Partition of Certain Properties and for Damages, filed by private respondents
against petitioners. In a Decision the lower court ordered the partition of the properties subject of the complaint.
Petitioners appealed to the Court of Appeals w/c affirmed the decision of the lower court.
Notice of the decision was sent to petitioners' counsel Atty. Atinidoro B. Sison at his given mailing address which is 33
B.M.A. Ave., Tatalon, Quezon City. The same, however, was returned to the court with the certification of the
postmaster "Return to sender, Reason moved."
the Court Resolved to resend the said copy of the Decision to the appellants themselves at Alaminos, Pangasinan,
and the appellants are hereby informed that the fifteen (15) days period within which to file for reconsideration will be
counted from the receipt of the decision herewith attached.
A copy of this Resolution was sent to petitioners themselves addressed as follows Mr. Teofilo Magno et al.,
Patricio, Alaminos, Pangasinan. It is not disputed that this address is the address on record of petitioners. But again
the enveloped addressed to them was returned to the court with the notation deceased.
The respondent court issued its now assailed Resolution ordering the issuance of the entry of judgment.
Petitioners' motion for reconsideration was denied hence, they filed the present petition.
No merit.
It is well-settled that when a party is represented by counsel, notice should be made upon the counsel of record at his
given address to which notices of all kinds emanating from the court should be sent in the absence of a proper and
adequate notice to the court of a change of address.
In the case now before Us, the records show that the notice and copy of the decision of respondent Court of Appeals
were sent to petitioners's counsel of record Atty. Atinidoro E. Sison at his given mailing address. The first notice to him
by the Postmaster to claim his mail was on July 9, 1981. The rule is that service of notice becomes effective at the
expiration of the five-day period upon failure of the address to claim his mail within five (5) days from the date of first
notice Sec. 8, Rule 13 Rules of Court Therefore in this case the service became effective five days after July 9, 1981
which is July 14, 1981. The decision became final on August 13, 1981.
The Adamson Ozanam Educational Institution, Inc. (Adamson University)was granted by the then Ministry of
Education, Culture & Sports (MECS), the authority to increase their tuition fees.. The Adamson University Faculty and
Employees Association (AUFEA) believing that under P.D. No. 451 60% thereof should be allocated for the increase
in salaries and wages of the members of the faculty and other members of the school filed a complaint in the Ministry
of Labor & Employment (MOLE) against the AU for the recovery of the said 60%.
The contention of the AU is that P.D. No. 451 was repealed by the Educational Act of 1982, which took effect on
September 12, 1982, and that assuming that B.P. No. 451 was not repealed, complainant is not entitled to any benefit

considering that there was no actual increment proceeds in the tuition fee increase for the school year 1983-84 upon
which to base the 60% allocation.
In a decision of the labor arbiter the complaint was dismissed for lack of merit. The AUFEA appealed therefrom to the
(NLRC) wherein in a decision was rendered setting aside the appealed decision and ordering the AU to remit to the
members of AUFEA the amount of P1,298,160.00 representing the 60% share in the increment proceeds of the
tuition fees collected. A motion for reconsideration of the said decision filed by the AU was denied for having been
filed out of time.
the petition for certiorari filed by the AU was dismissed by the court for failure to sufficiently show that respondent
commission had committed a grave abuse of discretion in rendering its questioned judgment. A motion for
reconsideration was filed by petitioner to which respondents were required to file their comment. The desired
comments having been submitted and the reply thereto filed by petitioner, the court finds a cogent basis to grant the
motion for reconsideration based on one of the following arguments:
whether the service of the copy of the decision upon the security guard of the building where the former office of
petitioner's counsel was located was sufficient compliance with the requirements of the law.
Section 4. Personal Service. Service of the papers may be made by delivering personally a copy to the party or his
attorney, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his
office, or his office is not known, then by leaving the copy, between the hours of eight in the morning and six in the
evening, at the party's or attomey's residence, if known, with a person of sufficient discretion to receive the same.
(Emphasis supplied)

Under the foregoing rule, service of papers should be delivered personally to the party or attorney or by leaving it at
his office with his clerk or with a person having charge thereof. The service of the court's order upon any person other
than the party's counsel is not legally effective. 1 Where the copy of the decision is served on a person who is neither
a clerk or one in charge of the attorney's office, such service is invalid and the decision does not therefore become
executory. 2 The security guard of the building where the attorney is holding office is neither the office clerk nor a
person in charge thereof as contemplated in the rules. In PLDT vs. NLRC, 3 this Court ruled that the service of the
decision at the ground floor of a party's building when the office is at the 9th floor is not a valid service.
From the foregoing, it is clear that the service of the decision dated October 11, 1988 on the security guard of the
building where the then counsel for petitioner was holding office was an invalid service and the running of the period
within which to appeal therefrom or file a motion for reconsideration cannot be deemed to commence thereby.

The petitioners filed with the Court of First Instance of Albay an application for registration of lots.
The application for registration was opposed by the respondent, Concepcion R. Pea who prayed that she be
declared the owner of said lots. She filed with the same Court of First Instance of Albay an action for reivindicacion
with damages seeking to recover from the petitioners the two lots covered by the application for registration.
a decision was rendered by the Court of First Instance of Albay dismissing both cases. From said decision, the
respondent appealed to the Court of Appeals. the decision was REVERSED:
(1) Declaring plaintiff-appellant the absolute owner of the three lots in question;
(2) Ordering the defendants to vacate said lots and deliver the possession thereof to the plaintiffPetitioners-appellees now assail the decision of the Court of Appeals on the ground of lack of procedural due
process. They contend that they were deprived of their day in court when the appeal was submitted for decision
without their brief. Allegedly they were not able to file their brief because the respondent-appellant did not furnish
them with a copy of the appellant's brief. They further contend that they did not receive both the resolution of the
Court of Appeals dated September 23, 1971, which considered the case as submitted for decision without appellee's
brief, as well as the decision of said court dated December 28, 1978, and that it was only on May 9, 1979, that they
learned of the judgment of said court when the Deputy Provincial Sheriff of Albay served upon them a copy of the writ
of execution enforcing said judgment.

Respondents denied petitioners' claim of lack of procedural due process, respondents allege that the counsel for the
petitioners-appellees were furnished with copies of the appellant's brief per registry receipts nos. 6724 and 6725,
which were filed with the Court of Appeals along with the appellant's brief and were attached to the Rollo of the
appealed case. Respondents further noted that the counsel for petitioners-appellees likewise received copies of the
Court of Appeals' resolution per registry return cards attached to the Rollo of the case. Respondents finally contend
that since the petitioners-appellees did not appeal from the decision of the Court of Appeals nor move for
reconsideration thereof, said decision became final and executory and that, consequently, the execution of said
decision is in order and should not be restrained by this Court. Accordingly, respondents pray that the temporary
restraining order be lifted and that the petition be denied for lack of merit.
whether or not the herein petitioners were deprived of procedural due process
We are inclined to believe petitioners' allegation that they were not served with a copy of the appellant's brief. For it
must be observed that the duty of proving service of the appellant's brief upon the appellee lies with the appellant, the
private respondent herein, who, regretably, failed to comply with the same. Section 10, Rule 14 of the Rules of Court
SEC 10. PROOF OF SERVICE. Proof of personal service shall consist of a written admission of the party served,
or the affidavit of the party serving, containing a full statement of the date, place and manner of service, ... If service
is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office.

The registry return card shall be filed immediately upon receipt thereof by the sender, or in lieu thereof the letter
unclaimed together with the certified or sworn copy of the notice given by the postmaster to the addressee.
Conformably with the foregoing provision, sufficient proof of service of the appellant's brief upon the appellees, which
was allegedly effected thru registered mail, consists of: (1) the affidavit of the party serving, containing a full statement
of the date, place and manner of service; (2) the registry receipt issued by the mailing office; and (3) the registry
return card or, in lieu thereof, the letter unclaimed together with the certified or sworn copy of the notice given by the
postmaster to the addressee. The records of the case, however, reveal that only the registry receipts allegedly issued
by the mailing office were presented by the respondent-appellant as proof of service of her brief upon petitionersappellees. Such registry receipts cannot be considered as sufficient proof of service of the appellant's brief. Firstly, to
hold otherwise would be to disregard the explicit requirements of the aforequoted provision of the Rules of Court.
Secondly, said registry receipts are evidence of the posting of the mail matter with the post office of the sender not
of the delivery of said mail matter by the post office of the addressee. Thirdly, the date of actual delivery to the
addressee cannot be ascertained from such registry receipts, And, finally, the possibility of presenting registry
receipts covering mail matters different from those involved in the litigation cannot be discounted. (See: resolution of
the Supreme Court, Second Division, dated May 21, 1980, in G.R. No. 51378 entitled "American President Lines vs.
The Honorable Court of Appeals, et al.")
whether respondent judge committed grave abuse of discretion amounting to lack or excess of jurisdiction in denying
petitioner's motion to expunge private respondents' answer with counterclaims on the ground that said pleading was
not served personally; moreover, there was no written explanation as to why personal service was not accomplished,
as required by Section 11 of Rule 13 of the 1997 Rules of Civil Procedure.
petitioner, as plaintiff, filed before the Regional Trial Court (RTC) in Paraaque, Metro Manila, a complaint for recovery
of possession and damages with prayer for a writ of replevin 1 against herein private respondents. The case was
docketed as Civil Case No. 97-0304 and was assigned to Branch 260 of said court, presided over by public
respondent Judge Helen Bautista-Ricafort.
Summonses and copies of the complaint were served on private respondents., their counsel filed a notice of
appearance with urgent ex-parte motion for extension of time to plead, 2 which the court granted in its order
, private respondents, as defendants, filed their "Answer (with Counterclaims).'' 4 A copy thereof was furnished
counsel for petitioner by registered mail; however, the pleading did not contain any written explanation as to why
service was not made personally upon petitioner-plaintiff, as required by Section 11 of Rule 13 of the 1997 Rules of
Civil Procedure.
petitioner filed a motion to expunge the "Answer (with Counterclaims)" and to declare herein private respondents in
default, 5 alleging therein that the latter did not observe the mandate of the aforementioned Section 11.
private respondents filed their opposition 6 to the abovementioned motion, alleging that petitioner's "rigid and inflexible
reliance on the provisions of Section 11, Rule 13 . . . is an adventitious resort to technicality and is contrary to Section
6 of Rule 3 . . . which admonishes that said Rules 'shall be liberally construed in order to promote their objective in

securing a just, speedy and inexpensive disposition of [e]very action and proceeding;'" and that Section 11, Rule 13
notwithstanding, private respondents "religiously complied with [Section 5 of Rule 13] by personally present[ing] to the
clerk of court their said Answer . . . furnishing a copy thereof to the counsel for [petitioner] by way of registered mail."
public respondent Judge Bautista-Ricafort issued an order 7 stating that under Section 11 of Rule 13 "it is within the
discretion of the [trial court] whether to consider the pleading as filed or not," and denying, for lack of merit,
petitioner's motion to expunge the "Answer (with Counterclaims)" and to declare private respondents in default.
Sec. 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes two modes of service of pleadings, motions, notices,
orders, judgments and other papers, namely: (1) personal service; and (2) service by mail. The first is governed by
Section 6, while the second, by Section 7 of said Rule. If service cannot be done either personally or by mail,
substituted service may be resorted to under Section 8 thereof.
Pursuant, however, to Section 11 of Rule 13, service and filing of pleadings and other papers must, whenever
practicable, be done personally; and if made through other modes, the party concerned must provide a written
explanation as to why the service or filing was not done personally. The section reads:
Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and
other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other
modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of
this Rule may be cause to consider the paper as not filed. (n)
Note that Section 11 refers to both service of pleadings and other papers on the adverse party or his counsel as
provided for in Sections 6, 7 and 8; and to the filing of pleadings and other papers in court.
Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action or resolution on a
pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely to be incurred if service or
filing is done by mail, considering the inefficiency of the postal service. Likewise, personal service will do away with
the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices: (1)
serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to
prepare, for instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that the
registered parcel containing the pleading of or other paper from the adverse party may be claimed, unduly
procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the
disposition of such pleading or other papers.
We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure,
personalservice and filing is the general rule, and resort to other modes of service and filing, the exception.
Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person,
personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other
modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not
practicable to begin with.

Gojo vs Goyala
Facts: Goyala, with his deceased wife, sold a parcel of land to Gojo with a right to repurchase the same in one year.
Upon the lapse of the period without exercising the right to repurchase, Gojo filed for consolidation of ownership. In
his opposition, Goyala alleged that the real intention of the contract is not a pacto de retro sale; it a cash loan payable
in one year without interest, wherein the parcel of land was a mortgage to guarantee payment thereof. He also
alleged that he and his wife tendered payment but it was refused by Gojo. The same allegations were reiterated by
Goyala in a counterclaim. Upon Goyala's manifestation that his wife, who was named defendant, is now dead, the
court ordered an amendment to the complaint for the substitution of her successors in interest. After 43 days, Gojo
failed to file an amended complaint. Goyala filed a motion to dismiss based on this fact. The court dismissed the case.
A motion to declare Gojo in default was filed with regard to the counterclaim contained in the answer or opposition to
the dismissed complaint. The court declared Gojo in default. Goyala was directed to submit evidence and the clerk of
court to receive the same. Judgment was rendered in favor of Goyala. On appeal to the CA, the CA certified the same
to the SC as it involves purely questions of law. Gojo argues that the declaration of default is i proper because the
counterclaim was compulsory and as such does not call for an independent answer because the complaint already
denies the material allegations therein and the dismissal of the complaint carries with it the dismissal of the
Issue: WON Gojo was in default in respect to the counterclaim?
Held: No. The rule is that a plaintiff who fails or does not answer a compulsory counterclaim may not be declared in
default because the issues raised in the counterclaim are deemed automatically joined by the allegations of the
complaint. The counterclaim in this case is compulsory as it is necessarily connected to the transaction which is the
subject matter of the complaint. Hence, Gojo may not be declared in default.
On the dismissal of the complaint, while Sec. 3 of Rule 17 provides for dismissal when plaintiff fails to comply with a
court order, the rule does not apply when the order is, in the first place, void. The order directed the amended of the
complaint due to the death of a party. It is void because as held in Casenas vs Rosales, the proper course of action
by the court is not amendment but to order the appearance of the legal representatives of the deceased pursuant to
Sec. 17, Rule 3. And as held in Barrameda vs Barbara, an order to amend prior to the substitution of the parties is
Also, dismissal of a complaint when a compulsory counterclaim has been pleaded is not proper. Sec. 2, Rule 17
provides that if a counterclaim is pleaded prior to the service of plaintiff's motion to dismiss, the action shall not be
dismissed against the defendant's objection unless the counterclaim can remain pending for independent
adjudication. The SC held on this issue that the same applies when it is the defendant that moves for dismissal since
the provision is meant to avoid multiplicity of suits.

Ballecer vs Bernardo
Facts: Petitioners filed for damages against respondent for the destruction of a portion of the former's wall and for
recovery of possession which is allegedly encroached upon by Bernardo. Bernardo filed an answer stating that the
destruction occured within his property and set up a counterclaim wherein he alleged that it was petitioners who had
encroached on his property and that the complaint is premature, uncalled for and capricious. Petitioners' motion for
extension of time was denied, hence they were declared in default as to the counterclaim. Bernardo, upon order,

presented evidence. On the counterclaim, the court ruled in favor of Bernardo. Petitioners' motion for reconsideration
was denied. They also filed a petition for relief from judgment, which was denied. A motion for reconsideration by
petitioners was granted. But the court denied the same upon motion for reconsideration by Bernardo. Petitioners
rendered a notice of appeal. Their motion for extension was denied. A writ of execution was issued but it was stayed
pending trial on the complaint. On Bernardo's motion, the order staying the writ was set aside. A reconsideration on
this order was denied. Hence, this petition.
Issue: WON the declaration of default was improper?
Held: Yes. Apart from declaring that the motion for extension should have been granted because of the meritorious
ground that there was a typhoon and that it is a motion that may be heard ex parte, the Court held that the issues
raised in the counterclaim were inseperable from the ones raised in the complaint. The counterclaim cannot be
passed upon without deciding the truth of the allegations of the complaint. Hence, an answer to the counterclaim was
not necessary.
Calo vs Ajax International
Facts: Calo ordered from Ajax 1,200 ft. of John Shaw wire rope evidenced by Charge Order No. 37071 for P3,420.00.
Calo alleged that the delivered rope was short 300 ft. A complaint was filed with the Municipal Court by Benavides
who alleged that he acquired the outstanding credit account of Calo from Ajax. Calo was declared in default and a writ
of execution was issued. In Calo's petition to the SC, the order of default and writ of execution were set aside. Calo
filed with the CFI a complaint against Ajax asking to deliver the deficiency of the rope delivered or to relieve her from
paying P855.00 plus P12,000.00 for attorney's fees, damages and expenses of litigation Without filing an answer,
Ajax filed a motion to dismiss alleging that the subject matter thereof was intimately related to the first case. The
motion to dismiss was granted. Motion for reconsideration and new trial was denied. Hence, appeal.
Issue: WON dismissal was proper?
Held: No. Ajax' supposes that the subject matter of the second case is a compulsory counterclaim which should be
tried in the first case. However, the claim is not a compulsory counterclaim because it exceeds the jurisdictional limit
of the municipal court. It would be absurd to require the claim to be filed with the municipal court where the claim is
beyond its jurisdiction. The rule that bars a compulsory counterclaim not set up presupposes that the amount is within
the jurisdictional limit of the court. Since the purpose of the rule of to settle all related controversies in one sitting, a
different judgment would compel defendant who has a bigger claim from institute a separate action for the remaining
balance of his counterclaim to obtain positive relief. In such an absurd case, the previous litigation did not settle all
related controversies.


I find it difficult to agree with respondent Judge that under the above provision it is solely within the discretion of the
trial court whether to consider the pleading as filed or not. Section 11 requires that service and filing of pleadings and
other papers shall be done personally, whenever practicable. In other words, when personal service is not done, the
party who fails to comply with the requirement must explain why. This makes personal service and filing of pleadings
mandatory, especially as the rule specifically uses the word "shall," unless personal service and filing are shown to be
impractical. At this stage, the exercise of discretion by the judge does not yet come into play.

In case personal service and filing are neither practical nor feasible then and only then can the parties avail of
other modes of service and filing, e.g., by registered mail. But resort to other modes must be accompanied by a
written explanation why service and filing are not done personally. From that explanation, the judge will then
determine whether personal service and filing are indeed impractical so that resort to other modes may be made. It is
only at this stage when the judge may properly exercise his discretion and only upon the explanation given.
In the case before us, private respondents gave no explanation why they resorted to service by registered mail and
not by personal service. Absent any explanation, respondent judge was without any hypothesis on which to anchor
her finding and conclusion that personal service was not practicable. In such a situation, respondent judge could not
exercise any discretion and, consequently, could not deny petitioner's motion to expunge the answer "for lack of
merit." Respondent judge did not even cite a single reason why personal service was not availed of by private
respondents. Consequently, the conclusion that the motion to strike out private respondents' answer filed by petitioner
should be denied "for lack of merit," was without any basis, thus amounting to grave abuse of discretion on the part of
respondent judge.
To emphasize, the court's discretion can only be exercised soundly if there exists some factual basis for it. The
explanation required of the parties serves as the authority for the judge's exercise of discretion. Without any
explanation, the judge cannot wield any discretion, much less dismiss the motion to expunge by simply saying that it
lacks merit.

gustin vs Bacalan
Facts: Bacalan is a lessee in a building owned by Agustin, who is now deceased. Due to non-payment of rentals, an
ejectment case was filed against Bacalan, asking also for P2,300.00. Bacalan filed his answer which includes a
counterclaim alleging that the case is a malicious suit since the plaintiff allegedly knows that no rentals in arrears are
due, and he prayed for not less than P50,000.00 as moral damages P10,000.00 as exemplary damages, and
P3,500.00 as attorney's fees. The City Court ruled in favor of Agustin. The CFI, on appeal, reversed the judgment.
Said CFI decision became final. Plaintiff's counsel filed for reconsideration, confessing his fault in the failure to file a
timely appeal. The motion was denied. With the aid of new counsel, plaintiff filed a complaint with the CFI to declare
the nullity of the decision of the first CFI because it exceeded its appellate jurisdiction when it granted a relief beyond
the jurisdiction of the City Court and that in acted in excess of jurisdiction due to grave abuse of discretion when it
awarded moral damages without evidence to support it. A motion to dismiss was filed by defendant alleging lack of
cause of action and lack of jurisdiction. The court dismissed the case. Motion for reconsideration was denied. Hence,
Issue: WON moral damages were proper?
Held: Yes. The money judgment was in the form of a counterclaim and was not for the unlawful detention of property.
The Rules provide that a defending party may set up a claim for money or any other relief which he may have against
the opposing party in a counterclaim.
Issue: WON the CFI may award, in an appeal, an award an amount that exceeds the jurisdiction of the court of origin?
Held: No. A court has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction.
However, it may be that a counterclaim may be set up in excess of the jurisdiction of the court as a compulsory
counterclaim. In such a case, the excess is deemed waive. By submitting to the jurisdiction of the court, defendant

became bound by the jurisdictional limit, as if he had set up a counterclaim for P10,000.00 only.
The rule is that a counterclaim not presented in the inferior court cannot be entertained by the CFI on appeal. Hence
on appeal, a pleading or allegation which raises a question essentially distinct from that raised or decided in the
inferior court cannot be filed or raised. Because the excess is deemed to have not been brought before the inferior
court and since the inferior court did not acquire jurisdiction over the excess, the same may not be entertained on
appeal nor is jurisdiction over the excess acquired by the appellate court.
The nullity of the excess for lack of jurisdiction however, does not affect the conclusions of the main case for
ejectment. A counterclaim is a separate and independent cause of action.

Salita vs Magtolis
Issue: WON the Bill of Particulars was sufficient?
Facts: Erwin Espinosa filed for annulment against his wife, Joselita Salita on the ground of psychological incapacity.
The complaint stated that "respondent was psychologically incapacitated to comply with the essential marital
obligations of their marriage, which incapacity existed at the time of the marriage although the same became manifest
only thereafter." A motion for bill of particulars was filed which was granted. In the bill of particulars, it was stated that
"respondent was psychologically incapacitated to comply with the essential marital obligations of their marriage in that
she was unable to understand and accept the demands made by his profession - that of a newly qualified Doctor of
Medicine - upon petitioner's time and efforts so that she frequently complained of his lack of attention to her even to
her mother, whose intervention caused petitioner to lose his job." Joselita argued that the bill only made legal
conclusions and did not aver the ultimate facts. The court upheld the sufficiency of the bill and ordered Joselita to file
her responsive pleading. She filed for certiorari with SC but it was referred to the CA. Te CA denied the petition stating
that the call for specification of particular conduct corresponding with time, place, and person pertains already to
evidentiary matters. Hnce, this petition.
Held: Yes. The ultimate facts are those facts which the expected evidence will support. It refers to the facts which the
evidence on the trial will prove, and not the evidence which will be required to prove the existence of those facts.
Hence, a motion for bill of particulars may not call for matters which should form part of the proof of the complaint
upon trial. In the case, to require more details such as the particular acts or omissions would be to ask for evidentiary
matters. Evidentiary matters are not the function of a bill of particulars. The Court ruled that petitioner can already
prepare her responsive pleading on the allegations stated.
The case does not fall squarely with the Tantuico case because in that case, the illicit acts of plunder and
misappropriation, among others, should be fully documented. In a marital relationship, it would be unreasonable to
document every circumstance of marital disagreement.