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De Asis vs.

CA
GR No. 127578, February 15, 1999
FACTS:
Vircel Andres as legal guardian of Glen Camil Andres de Asis, filed an action in 1988 for
maintenance and support against the alleged father Manuel De Asis who failed to provide
support and maintenance despite repeated demands. Vircel later on withdrew the
complaint in 1989 for the reason that Manuel denied paternity of the said minor and due
to such denial, it seems useless to pursue the said action. They mutually agreed to move
for the dismissal of the complaint with the condition that Manuel will not pursue his
counter claim. However in 1995, Vircel filed a similar complaint against the alleged father,
this time as the minor’s legal guardian/mother. Manuel interposed maxim of res judicata
for the dismissal of the case. He maintained that since the obligation to give support is
based on existence of paternity between the child and putative parent, lack thereof
negates the right to claim support.
ISSUE: WON the minor is barred from action for support.
HELD: The right to give support cannot be renounced nor can it be transmitted to a third
person. The original agreement between the parties to dismiss the initial complaint was in
the nature of a compromise regarding future support, which is prohibited by law. With
respect to Manuel’s contention for the lack of filial relationship between him and the child
and agreement of Vircel in not pursuing the original claim, the Court held that existence of
lack thereof of any filial relationship between parties was not a matter which the parties
must decide but should be decided by the Court itself. While it is true that in order to
claim support, filiation or paternity must be first shown between the parties, but the
presence or lack thereof must be judicially established and declaration is vested in the
Court. It cannot be left to the will or agreement of the parties. Hence, the first dismissal
cannot bar the filing of another action asking for the same relief (no force and effect).
Furthermore, the defense of res judicata claimed by Manuel was untenable since future
support cannot be the subject of any compromise or waiver.

G.R. No. L-61549 May 27, 1985
FRANCISCO DE ASIS & CO., INC., FRANCISCO DE ASIS and LEOCADIO DE ASIS,
petitioners, vs.THE COURT OF APPEALS, and MERCEDES PRIETO DELGADO,
respondents.
Cruz, Durian, Agabin, Atienza & Alday for petitioners.
Efren C. Carag for private respondent.
RELOVA, J:
In this petition for review on certiorari, petitioners seek to reverse and/or modify the
decision, dated July 30, 1981, of respondent Court of Appeals affirming the decision of the
trial court, as well as the resolution, dated August 20, 1982, denying the motion for
reconsideration.
The facts of the case as aptly synthesized and adopted in toto by the respondent appellate
court are as follows:
Defendant Francisco de Asis & Co., Inc. was organized sometime in 1967 with Francisco de
Asis as its president and Leocadio de Asis as one of the members of the Board of
Directors, As a stock brokerage company, it did business in the Makati Stock Exchange
wherein one becomes a member upon the execution of an undertaking by at least 2
members of its Board of Directors who own 95% of the stocks to answer solidarily for the
corporation liabilities of the member company. Leocadio de Asis and Francisco de Asis who
owned 95% of the outstanding capital stock of the Francisco de Asis & Co., Inc. executed
a joint and several undertaking on July 25, 1967 wherein they jointly and severally
warrant the equitable payment of all valid and legitimate corporate liabilities of Francisco
de Asis & Co., Inc. in connection with its membership in the Makati Stock Exchange
(Exhibits A, A-1, and A-2).
Sometime in June, 1970 the defendant company thru its president Francisco de Asis
approached Mrs. Mercedes P. Delgado for assistance to secure a loan in the amount of
P200,000.00 from the Resource & Finance Corporation. Since Francisco de Asis was a
good friend and his father Leocadio de Asis was solvent and answerable in a joint and
solidarily undertaking of the company, she agreed to raise the amount of P200,000.00 as
requested. She was able to secure P100,000.00 from the Resource and Finance
Corporation for which she executed a promissory note (Exhibit F) and the amount of
P100,000.00 from her brother Benito Prieto, Jr. With this amount, she deposited it in the
Bank of Asia, Makati Branch in favor of Francisco de Asis & Co., Inc. under current account
of 2-001, in accordance with the instructions of its President Francisco de Asis (Exhibit B).
Thereafter, on or about August, 1973 Francisco de Asis informed her that he had
P100,000.00 to be made as partial payment of their loan and suggested that she invest it

Inc. The deposit slip (Exhibit "B") of the Bank of Asia showing the deposit of P200. He was an original Director of the defendant corporation and at one time chairman of the board for a short period. remained unpaid. The corporation had never pass any resolution authorizing Francisco de Asis to secure a loan of P200. (pp. and it was unduly delivered through mistake. Inc.00 to the bank account of defendant corporation at the Bank of Asia. The claim of the corporation that it had not authorized Francisco de Asis to obtain loan for the company from the private respondent is belied by the fact that upon deposit of the sum of P200. Record on Appeal). Rollo). then plaintiff could have simply written out a check in the latter's name or deposited the amount of the loan in his personal account. Rollo). WE do not agree.00 was not to meet the personal need of Francisco de Asis as there is no showing that he was in financial difficulties but to resolve the cash flow problems of Francisco de Asis and Co. Mr. 8. Inc. He had no direct participation in the management of the corporation to attend the board meetings. who was a good friend. 1970 in the current account of defendant corporation at the Makati Branch of the Bank of Asia. He was compelled to execute this joint and several undertaking which in his opinion is null and void especially considering that a nominal stock member like himself wig be held liable because no license will be issued unless this condition is first satisfied.00 is not totally without any document. Thus. Considering the relationship between the parties. Inc.000. He was a nominal stockholder of the Francisco de Asis & Co. (pages 30-32. i. This loan she extended to Francisco de Asis & Co. Inc... and not a personal loan of Francisco de Asis with the private respondent. 34-37.. this supposed partial payment which was to be invested in shares of Philex was not carried out because Francisco de Asis & Co.000. promissory notes and/or real estate or chattel mortgages. To this suggestion. She Called up Mr. Unfortunately." encountering cash flow problems. If the transaction contemplated by the parties herein is that of a personal loan to Francisco de Asis. was suspended by the Makati Stock Exchange from trading... As a matter of fact. 2-0017 of defendant corporation indicates the receipt of said amount. have been denied and proved to be false.e. Jr.000. jointly and severally. As a result. On the part of the defendants only Leocadio de Asis testified. assuming that it had not really authorized Francisco de Asis to borrow money from private respondent.by buying shares of Philex Mining. plaintiff deposited the P200.00 from Mercedes P. Asis to settle the loan and she was assured of settlement as Mr. 1970. negate the existence of the loan.000. defendant Francisco de Asis and Co. Makati Branch (pages 32-33. for and in consideration of the foregoing premises. She is married but separated from her husband. He ceased to be an officer of this corporation sometime in 1970. defendant. their liability is spelled out by Exhibit "A" as follows: 4.000. was to answer for obligation in favor of the Makati Stock Exchange in connection with the operation of said exchange and not in favor of any other party (Exhibit I). His testimony substantially established that he is a lawyer and had fully understood the effects and circumstances of executing the joint and several undertaking. she agreed. there was a rush of claims against the company resulting in its collapse...000. Inc. and informed her that he was in need of P200. We are in affirmance of the findings of respondent appellate court that— The necessity and urgency for the loan of P200. Rollo). Leocadio de Asis is solvent and answerable for the debts of the company.00 on July 2.. the company is still obliged to return the same under Article 2154 of the Civil Code which provides: If something is received when there is no right to demand it. Exhibit A. with petitioners Francisco de Asis and Francisco de Asis & Co. On July 2. Exhibit A. was NOW. The records are negative of any evidence which would show that the corporate nature of the transaction alleged in paragraphs 4 and 8 of the complaint which read: Relative to the argument that Francisco and Leocadio de Asis' liability under their "Joint and Several Undertaking" is limited to the obligation of the corporation in connection with its membership at the Makati Stock Exchange. as well as with her brother Benito Prieto. 97% of the capital stock of which he owned.00 in its current account. And. he had no knowledge of this transaction except when the instant suit was filed. Francisco de Asis approached plaintiff. the Owners hereby jointly and severally warrant the equitable payment of all valid and legitimate corporate . 1970. she had been paying on her own the loan with the Resource & Finance Corp. of which 97% of the subscribed capital belong to his son Francisco while the remaining 3% was subscribed by him This joint and several undertaking. Neither would the absence of the usual documents. But the loan of P200. the obligation to return it arises. de Asis even sent her a cable assuring her that the loan would be settled (Exhibits C and C-1). in Current Account No. THEREFORE. being very good friends.000. Delgado. which was made in accomodation to his son Francisco de Asis.000. it had retained and disbursed the said amount. plaintiff-appellee dispensed with the customary documentation in her desire to bail out a friend from the difficulties that his corporation is facing. under the "Joint and Several Undertakings. and (2) in holding petitioner Leocadio de Asis liable. And the record is bereft of any evidence disclosing that said funds were used other than for corporate purposes.00 on July 2. for which plaintiffappellee deposited the amount of P200. Sometime in June of 1970. Inc. (page 33. On the other hand.00 because the stock brokerage firm bearing his name. Petitioners raised the same assignments of errors presented and passed upon by the appellate court that the latter erred (1) in declaring that the obligation sued upon was corporate loan of Francisco de Asis and Co.

• The Solicitor General filed a notice of appeal. CA May 6. Exhibit "A" ". that if the 95% outstanding capital stock is owned by only one person another stockholder shall be required to execute with him the said public instrument or guaranty. Subdivision 2. in connection with its membership at the Makati Stock Exchange Exhibit "A" (page 33.liabilities of the Francisco de Asis & Co.. for lack of merit. SO ORDERED. therefore. hence. G.R. which was granted by the RTC of Catbalogan. the filling of only a notice of appeal from the trial court’s order suffices to perfect the appeal therefrom. Republic vs. the spouse present must institute a summary proceeding as provided in said Code for the declaration of the presumptive death of the absentee. FACTS: • A filed for a judicial declaration of presumptive death for the purpose of contracting a subsequent valid marriage. however. ACCORDINGLY. "Leocadio and Francisco de Asis knowingly and voluntarily executed and signed the Joint and Several Undertaking. Republic vs. Court of Appeals. the petition is hereby DISMISSED. but was disapproved by the Court of Appeals. . The execution of the foregoing instrument is a requirement for membership in the Makati Stock Exchange. 41 of the Family Code provides that for the purpose of contracting a subsequent marriage where one of the spouses has been absent for the periods and under the circumstances therein. as pointed out by respondent appellate court. (page 34. Such summary proceeding is not a special proceeding under the Rules of Court. More so. And. 2005 ISSUE: • Petition for judicial declaration of presumptive death in the nature of a summary proceeding. without prejudice to the effect of the reappearance of the absent spouse. 2005 Art. ruling that the declaration of presumptive death is a special proceeding. in the case of Leocadio de Asis who is a lawyer and. Rollo). LESSONS: • Article 41 (2) of the Family Code: For the purpose of contracting a valid subsequent marriage during the subsistence of a previous marriage where the prior spouse has been absent for four consecutive years. (Emphasis supplied). knew the legal import and far-reaching consequences of the document he signed. Inc. 163604 May 6. Rollo). No. Section 1 of Article XIII of the Constitution of the Makati Stock Exchange clearly states: that stockholders owning at least 95% of the outstanding capital stock of the applicant corporation shall execute a public instrument making themselves jointly and severally liable without limitation for all the transactions and dealings of said corporation and a copy of said document shall be filed with the Commission provided. the spouse present must institute summary proceedings for the declaration of presumptive death of the absentee spouse.

Branch 35. . sought to appeal the trial court’s order by filing a Notice of Appeal. Rule 41." disapproved the Notice of Appeal. March 2. the Court resolves to delve deeper into the substantive issue of the validity/nullity of the assailed order. through the Office of the Solicitor General. a record on appeal in accordance with Section 19 of the Interim Rules and Guidelines to Implement BP Blg. the petition questioned the [trial court’s] Order dated August 15. As defined in Section 3(a). who had left his petitioner-wife nine years earlier. In granting the petition. 3.. HON. On this score alone. respondents.1 granted the petition on the basis of the Commissioner’s Report2 and accordingly declared the absentee spouse. Judge Fortunito L. vs. the present case being a special proceeding. MADRONA. 2005 REPUBLIC OF THE PHILIPPINES. "a civil action is one by which a party sues another for the enforcement or protection of a right. 1999). 129 and Section 2(a). DECISION CARPIO-MORALES. It does not seek the enforcement or protection of a right or the prevention or redress of a wrong. Said article provides that for the purpose of contracting a valid subsequent marriage during the subsistence of a previous marriage where the prior spouse had been absent for four consecutive years.THE HON. without prejudice to the effect of the reappearance of the absent spouse. 1999. No. petitioner." the Ormoc City. 1999. . 2004. 2000 [denying its Motion for Reconsideration of the November 22. noting that no record of appeal was filed and served "as required by and pursuant to Sec. in addition to its Notice of Appeal. the petition should have been dismissed outright in accordance with Sec. 124320. It failed to attach to its petition a certified true copy of the assailed Order dated January 13.G. 2 of the Family Code. 35 and APOLINARIA MALINAO JOMOC. 2(a). (Emphasis and underscoring supplied) The Republic (petitioner) insists that the declaration of presumptive death under Article 41 of the Family Code is not a special proceeding involving multiple or separate appeals where a record on appeal shall be filed and served in like manner. Rule 1 of the Rules of Court. 163604 May 6. 1999 disapproving its Notice of Appeal was correctly issued. if the petition is an ordinary action. the period to appeal is 30 days and the party appealing must.R. et al. The principal issue in this case is whether a petition for declaration of the presumptive death of a person is in the nature of a special proceeding. 1999s. Del Rosario. the trial judge. being in the nature of a special proceeding.3 By Order of November 22. et al. or the prevention of redress of a wrong" while a special proceeding under Section 3(c) of the same rule is defined as "a remedy by which a party seeks to establish a status. 2000. The Republic. Neither does it involve a demand of right or a cause of action that can be enforced against any person. this Court finds that the instant petition is in the nature of a special proceeding and not an ordinary action . J. Regional Trial Court. If it is. 7 the Court of Appeals denied the Republic’s petition on procedural and substantive grounds in this wise: At the outset. Otherwise. v. despite the procedural lapses. not even a copy could be found in the records. the period to appeal is 15 days from notice or decision or final order appealed from and the appeal is perfected by filing a notice of appeal (Section 3. On the basis of the foregoing discussion.: In "In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P. by Order of September 29. a right or a particular fact (Heirs of Yaptinchay. The Republic’s Motion for Reconsideration of the trial court’s order of disapproval having been denied by Order of January 13. file with the trial court a record on appeal to perfect its appeal. The petition merely seeks for a declaration by the trial court of the presumptive death of absentee spouse Clemente Jomoc. 1999 Order disapproving its Notice of Appeal]. Rule 46 of the Rules of Court. Moreover. G.R.5 it filed a Petition for Certiorari6 before the Court of Appeals.4 the trial court. it contending that the declaration of presumptive death of a person under Article 41 of the Family Code is not a special proceeding or a case of multiple or separate appeals requiring a record on appeal. RTC-BR. . OSG should have filed. No. However. The instant petition. which declared Clemente Jomoc presumptively dead. cited Article 41. Madrona. it must be stressed that the petition is not sufficient in form. PRESIDING JUDGE FORTUNITO L. 2000 denying OSG’s Motion for Reconsideration of the Order dated November 22. the spouse present must institute summary proceedings for the declaration of presumptive death of the absentee spouse. yet. COURT OF APPEALS (Twentieth Division). in addition to a notice of appeal. Apolinaria Malinao Jomoc. Rules of Court). Considering the aforementioned distinction. likewise for having been issued with grave abuse of discretion amounting to lack of jurisdiction. By Decision of May 5. Jomoc. the subject Order dated January 13. par. petitioner. presumptively dead. Rule 41 of the Rules of Court . Rule 41 of the 1997 Rules of Civil Procedure.

Sec. (k) Judicial approval of voluntary recognition of minor natural children. After an absence of seven years. (h) Habeas corpus. The pertinent provisions on the General Provisions on Special Proceedings. (f) Rescission and revocation of adoption. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void. 8 this Court. provides: Sec. read: RULE 72SUBJECT MATTER AND APPLICABILITYOF GENERAL RULES Section 1. the rules provided for in ordinary actions shall be." Resolved to consider that copy deemed served upon her. applicable in special proceedings. it being unknown whether or not the absentee still lives. 41. as far as practicable. (Underscoring supplied) The pertinent provision of the Civil Code on presumption of death provides: Art. (b) Escheat. except for those of succession. 2. the spouses present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee. x x x (Emphasis and underscoring supplied) Upon the other hand. Article 41 of the Family Code. 2. . (e) Adoption. Modes of appeal. For the purpose pf contracting the subsequent marriage under the preceding paragraph. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code. (m) Declaration of absence and death. on Modes of Appeal. – In the absence of special provisions. Applicability of rules of civil actions. 2004 Resolution9 requiring respondent to file her comment on the petition was returned unserved with postmaster’s notation "Party refused. invoked by the trial court in disapproving petitioner’s Notice of Appeal. (Emphasis and underscoring supplied) Rule 41. By Resolution of December 15. Part II of the Revised Rules of Court entitled SPECIAL PROCEEDINGS. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. (a) Ordinary appeal. unless before the celebration of the subsequent marriage. (l) Constitution of family home. petitioner contends that a mere notice of appeal suffices. (j) Voluntary dissolution of corporations. The petition for the declaration of presumptive death of an absent spouse not being included in the enumeration. 390. Subject matter of special proceedings. upon which the trial court anchored its grant of the petition for the declaration of presumptive death of the absent spouse. noting that copy of the September 27. (Emphasis and underscoring supplied) . without prejudice to the effect of a reappearance of the absent spouse. provides: Art. (c) Guardianship and custody of children. (g) Hospitalization of insane persons. (d) Trustees.Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases wherein multiple appeals are allowed and a record on appeal is required for an appeal to be perfected.The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. In such cases. – Rules of special proceedings are provided for in the following: (a) Settlement of estate of deceased persons. (n) Cancellation or correction of entries in the civil registry. the record on appeal shall be filed and served in like manner. an absence of only two years shall be sufficient. (i) Change of name. 2004. he shall be presumed dead for all purposes. Section 2 of the Revised Rules of Court. the prior spouses had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouses was already dead.

. as amended. and is. entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW. 2004 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. VII. the procedural rules in this Title shall apply in all cases provided for in this Codes requiring summary court proceedings. the filing of a Notice of Appeal from the trial court’s order sufficed. 254. 386." following above-quoted Art. Let the case be REMANDED to it for appropriate action in light of the foregoing discussion. Ergo. 254. not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. 238. VI. what the appellate court should have done was to direct petitioner to comply with the rule. VIII. or parts thereof. Art. (Emphasis and underscoring supplied). SO ORDERED. Art. Unless modified by the Supreme Court. 29. 41 and 42 of Presidential Decree No. 30. 27. Petitioner’s failure to attach to his petition before the appellate court a copy of the trial court’s order denying its motion for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal. Given the issue raised before it by petitioner. the petition for that purpose is a "summary proceeding. 31. it merely having assailed the order disapproving the Notice of Appeal. As for petitioner’s failure to submit copy of the trial court’s order granting the petition for declaration of presumptive death. petitioner’s 8-page petition 10 filed in said court does not so reflect. as amended. inter alia: xxx Art. executive orders. therefore. and Articles 17. (Emphasis and underscoring supplied) x x x. otherwise known as the Civil Code of the Philippines. and all laws. a summary proceeding under the Family Code. proclamations rules and regulations. Such cases shall be decided in an expeditious manner without regard to technical rules. 19.xxx By the trial court’s citation of Article 41 of the Family Code. provides as follows: Finally. That the Family Code provision on repeal. 603. on the alleged procedural flaw in petitioner’s petition before the appellate court. 18. IV. paragraph 2 of the Family Code. contrary to the appellate court’s observation that petitioner was also assailing it. XI and XV of Book I of Republic Act No. decrees. 41. 28. the assailed May 5. Since Title XI of the Family Code. for the rules of procedure are not to be applied in a technical sense. V. IX. It being a summary ordinary proceeding. contains the following provision. seals the case in petitioner’s favor. 40. Titles III. there is no doubt that the petition of Apolinaria Jomoc required. WHEREFORE. otherwise known as the Child and Youth Welfare Code. it is gathered that the petition of Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent marriage. 39. inconsistent therewith are hereby repealed.