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RULE 6 SECTION 2-3

FIRST DIVISION

[G.R. No. 119088. June 30, 2000]

ZAIDA RUBY S. ALBERTO, petitioner, vs. COURT OF APPEALS, EPIFANIO J. ALANO, CECILIA P. ALANO, YOLANDA P. ALANO, and
NATALIA REALTY, INC., respondents.

DECISION

YNARES-SANTIAGO, J.:

Assailed in this Petition for Review on Certiorari is the Decision[1] of the Court of Appeals in CA-G.R. CV No. 38380 affirming the Omnibus
Order[2] of the lower court dismissing petitioners second Amended Complaint for insufficiency of cause of action.

Respondent spouses Epifanio and Cecilia Alano retained the legal services of petitioner Atty. Zaida Ruby S. Alberto to represent them before
the Securities and Exchange Commission (SEC) in an action to recover real properties, money and other assets that may pertain to them
by virtue of their stockholdings in the Natalia Realty, Inc. Both parties formalized their conformity in a retainer agreement[3] the salient feature
of which is for respondent-spouses to pay petitioner on a contingent basis the following: a) the equivalent in kind of ten percent (10%) of
whatever real estate may be awarded, and b) the sum of Two Hundred Thousand Pesos (P200,000.00).

In accordance with said Agreement, petitioner filed on behalf of respondent-spouses SEC Case No. 3054, an action for liquidation, accounting
and damages against Eugenio S. Baltao and five other persons of Natalia Realty, Inc., and appeared at the hearings thereof.

On January 3, 1989, petitioner learned that respondent-spouses moved to dismiss SEC Case No. 3054 which motion was confirmed in a
manifestation by Baltao and Natalia Realty, Inc. It appeared that during the pendency of the case, the opposing parties reached a settlement
without consulting petitioner. Petitioner only learned of the settlement on January 16, 1989 when she received a copy of a SEC order giving
Baltao and Natalia Realty, Inc. three days to comment on respondent-spouses motion to dismiss on account of said settlement. In effect,
Baltao and Natalia Realty, Inc. joined respondent-spouses in their motion to dismiss on account of a satisfactory settlement having been
reached between them in said SEC case. Accordingly, the said case was dismissed on January 19, 1989.

When confronted, respondent-spouses admitted that a settlement had indeed been reached and that they expected to receive 35 hectares
of land. Petitioner demanded the payment of the fees stipulated in their retainer agreement, however, respondent-spouses refused to pay
despite repeated demands.

Petitioner was thus constrained to file a Complaint for collection of sum of money with damages[4] against respondent-spouses. The Regional
Trial Court of Pasig, Branch 151 rendered a decision on November 17, 1989 in favor of petitioner the dispositive portion of which reads:

"WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant-spouses:

1.....Declaring plaintiff entitled to ten percent (10%) equivalent to three and a half (3 1/2) hectares of the thirty-five (35) hectares
awarded to and/or received by defendant-spouses from those lands and real properties involved in SEC Case No. 3054, located
at Sitio Banaba, Barrio No. 3, Antipolo, Rizal covered by Transfer Certificate of Title No. 31527 issued by the Register of Deeds
for the Province of Rizal; Transfer Certificate of Title No. 67845 issued by the Register of Deeds of Rizal, Marikina Branch; as well
as those subdivision lots certificates of title (segregated from Transfer Certificate of Title No. 31527) issued by the Register of
Deeds of Rizal, Marikina Branch numbered as follows:

(LISTING OF TITLES OMITTED)

and ordering defendant-spouses to transfer, cede, assign and deliver the same to the plaintiff; and,

2.....Ordering defendant-spouses to pay to plaintiff the following amounts:

(a)....P180,000.00 representing the balance of her monetary fee under their retainer agreement, with interest of 12% from the filing
of the complaint on February 22, 1989 until fully paid;

(b)....P30,000.00 as moral damages;


(c)....P10,000.00 as exemplary or corrective damages; and

(d)....P10,000.00 as attorneys fees and litigation expenses, all three (3) foregoing amounts with interest of 12% from date hereof
until fully paid."

In a subsequent Order, the lower court declared that the attorneys fees awarded in the above-cited decision constitute a lien on the properties
subject of the case and ordered the Register of Deeds of Rizal, Marikina Branch, to annotate said lien on the covering certificates of title and
their derivatives. When the above-cited decision became final and executory, petitioner caused the issuance of a writ of execution. However,
per Sheriffs Return,[5] only P3,500.00 of personal properties of respondent-spouses were levied.

Apparently, Natalia Realty, Inc. had sold to private respondent Yolanda Alano, respondent-spouses daughter, 230,090 square meters or a
little over 23 hectares out of the 32.4 hectares given to them as settlement of the SEC case.[6] The sale was executed on December 28, 1988
or six days before respondent-spouses moved to dismiss the SEC case on January 3, 1989. This discovery prompted petitioner to file a
complaint, and thereafter, a second Amended Complaint [7] to declare the deed of sale null and void ab initio on the ground that the transfer
of the subject parcels of land to Yolanda Alano was simulated. Petitioner likewise caused the annotation of a notice of lis pendens on the
transfer certificates of title.

The trial court, in an Omnibus Order,[8] dismissed petitioners Complaint for insufficiency of cause of action. As a matter of course, the
annotations of the notice of lis pendens as well as the attorneys lien on the transfer certificates of title were cancelled.

The Court of Appeals affirmed the dismissal of the complaint as well as the cancellation of the notice of lis pendens and the annotation of
attorneys lien. In affirming the lower courts Omnibus Order dismissing the Second Amended Complaint for insufficiency of cause of action,
the Court of Appeals held thus:

"The first assigned error is devoid of sustainable basis. Well-settled is the rule that in resolving a motion to dismiss on the ground
of failure to state a cause of action, only the averments of the complaint, and no other, are to be consulted. Extraneous matters
are irrelevant. We agree with the trial court, as opined in its Omnibus Order under attack, that the Deed of Sale, attached to the
Second Amended Complaint as Annex "C", was executed before the filing of the complaint for attorneys fees in C.C. No. 57023;
Plaintiff is not a party to subject Deed of Sale and the defendant movant, Yolanda P. Alano, was not a party in said C.C. No. 57023;
that the defendant spouses, Epifanio Alano and Cecilia Alano, were awarded by SEC thirty-five (35) hectares; that only twenty
three (23) hectares of the said 35 hectares was sold by the latter to defendant Yolanda P. Alano under the Deed of Sale sought to
be annulled here; and under the Judgment in Civil Case No. 57023, plaintiff was adjudged as entitled to 10% of the aforesaid
award of 35 hectares, as her attorneys fees. Such being the case, even assuming that plaintiff is entitled to receive from the
defendant spouses, Epifanio and Cecilia Alano, 3 1/2 hectares, as her earned professional fees, the same can be taken from the
remaining twelve (12) hectares not deeded out under the Deed of Sale in question. The claim of plaintiff for such attorneys fees is
not at all prejudiced or affected by the sale of twenty three (23) hectares to Yolanda P. Alano, which sale the present complaint of
plaintiff seeks to annul.

In the light of the foregoing facts and circumstances, it is therefore decisively clear that the lower court did right in dismissing the
Second Amended Complaint for failure to state a cause of action against defendant appellee Yolanda P. Alano, who was not a
party in Civil Case No. 57023 and consequently not bound by the judgment therein. The latter was never a client of plaintiff
appellant, and is a total stranger in Civil Case No. 57023. Undoubtedly, subject attorneys fees of plaintiff-appellant of 3 1/2 hectares
can not be enforced against the properties of Yolanda P. Alano which she validly purchased under the said Deed of Sale inked
prior to the institution of Civil Case No. 57023. Absent any allegation in the second Amended Complaint that Yolanda P. Alano
assumed her parents obligation to pay such attorneys fees of plaintiff-appellant or that her own properties would be used to satisfy
said obligation of her parents, plaintiff-appellant is without any cause of action against defendant-appellee Yolanda P. Alano. On
the basis of its allegation of ultimate facts, dismissal of the Second Amended Complaint under scrutiny is, therefore, inevitable.

What is more, as observed below, appellant is not a party to the Deed of Sale executed between Yolanda P. Alano and Natalia
Realty, Inc. A stranger to said contract, appellant has no legal right and personality to assail the same. To the fore, in this
connection, is the pertinent provision of Art. 1397 of the New Civil Code -- that "The action for annulment of contract may be
instituted by all those who are thereby obliged principally or subsidiarily."

Although the aforecited legal provision in point admits of an exception, as when a person not a party to the contract could show
that he would suffer damage or injury by reason of the contract, in connection with at least one of the contracting parties, x x x We
agree with the lower court that the case of appellant here is not within the contemplation of Article 1397 supra. So also, as pointed
out by appellees, there is no allegation in the Second Amended Complaint that appellant proceeded with the execution of the
Decision of the Pasig court in Civil Case No. 57023 and was unable to obtain satisfaction therefor that she had exhausted all
available remedies for the satisfaction of such judgment against the judgment debtors, spouses Epifanio Alano and Cecilia Alano."
Indeed, it is irrefutable that the Second Amended Complaint contains no allegation that plaintiff-appellants prayer for attorneys fees
equivalent to 3 1/2 hectares in Civil Case No. 57023 is bound to be prejudiced by the Deed of Sale executed by the said spouses
in favor of defendant-appellee Yolanda P. Alano. Appellants submission, that exhaustion of the properties of her said former clients
is not essential to the accrual of her cause of action, is untenable. To repeat: from the remaining twelve (12) hectares of her former
clients may be taken her (appellants) attorneys fees of 3 1/2 hectares."[9]

Hence, this petition. Petitioner submits that the Court of Appeals erred:

(A)....IN FINDING THAT PETITIONERS AMENDED COMPLAINT IN CIVIL CASE NO. 90-1798 DID NOT STATE A SUFFICIENT
CAUSE OF ACTION, AND THAT THE TRIAL COURT COMMITTED NO ERROR IN DISMISSING SAID COMPLAINT ON THAT
GROUND; AND

(B)........IN FINDING THAT CIVIL CASE NO. 90-1798 IS NOT AN ACTION AFFECTING TITLE TO OR POSSESSION OF REAL
PROPERTY UNDER SECTION 24 OF RULE 14, REVISED RULES OF COURT, HENCE NOT A PROPER SUBJECT OF A
NOTICE OF LIS PENDENS.

Petitioner submits that the Court of Appeals erred in ruling that she "had no legal right or personality to assail the deed of sale between
Natalia Realty, Inc. and Yolanda P. Alano"[10] as she was a stranger to the contract sought to be annulled, hence without sufficient cause of
action.

This contention is impressed with merit. In Paraaque Kings Enterprises, Inc. v. Court of Appeals,[11] this Court held:

"To determine the sufficiency of a cause of action, only the facts alleged in the complaint and no other should be considered; and
that the test of sufficiency of the facts alleged in a petition or complaint to constitute a cause of action is whether, admitting the
facts alleged, the court could render a valid judgment upon the same in accordance with the prayer of the petition or complaint.

A cause of action exists if the following elements are present: (1) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and
(3) an act or omission on the part of such defendant violative of the right of plaintiff or constituting a breach of the obligation of
defendant to the plaintiff for which the latter may maintain an action for recovery of damages.

In determining whether allegations of a complaint are sufficient to support a cause of action, it must be borne in mind that the
complaint does not have to establish or allege facts proving the existence of a cause of action at the outset; this will have to be
done at the trial on the merits of the case. To sustain a motion to dismiss for lack of cause of action, the complaint must show that
the claim for relief does not exist, x x x."

The sufficiency of petitioners cause of action in the second Amended Complaint is readily apparent. A right in her favor was created by virtue
of the retainer agreement executed between her and respondent-spouses. This right was confirmed and upheld by the Regional Trial Court
of Pasig when it ruled in favor of petitioner in Civil Case No. 57023 for collection of sum of money and damages.[12] Correspondingly,
respondent-spouses had the obligation to honor and not to violate the provisions of the retainer agreement it entered into with petitioner.
Unfortunately, respondent-spouses breached their obligation under the retainer agreement when they refused and failed to pay petitioners
attorneys fees in accordance with their agreement. Worse, when petitioner moved for the issuance of a writ of execution, she discovered to
her dismay that respondent-spouses had no more leviable properties except a few personal properties amounting to only P3,500.00. In fact,
by making it appear that it was Natalia Realty, Inc. which sold respondent-spouses 23 hectares to respondent Yolanda P. Alano, petitioner
not only had a cause of action against respondent-spouses but likewise against Yolanda P. Alano. Clearly, all these instances which were
alleged and enumerated in the second Amended Complaint constitute a sufficient cause of action on the part of petitioner.

The trial court and the Court of Appeals should not have been too rigid in applying the rule that in resolving a motion to dismiss on the ground
of failure to state a cause of action, only the averments in the complaint and no other are to be consulted. The rule admits of exceptions.

First: All documents attached to a complaint, the due execution and genuineness of which are not denied under oath by the defendant, must
be considered as part of the complaint without need of introducing evidence thereon. [13]

Attached to the second Amended Complaint is the Deed of Sale the due execution and genuineness of which were never denied by
respondents. While admittedly, petitioner is not a party to the Deed of Sale, nevertheless, she anchors her right upon the allegation that her
share in the 35 hectares of land awarded to respondent-spouses was prejudiced by the simulated sale to Yolanda P. Alano. The allegation
that the Deed of Sale was simulated does not have to be proved at the outset as it could be done during the trial on the merits of the case.
Second: Other pleadings submitted by the parties, in addition to the complaint, may be considered in deciding whether the complaint should
be dismissed for lack of cause of action.[14]

In City of Cebu v. Court of Appeals[15] this Court held thus -

"In the case of Tan v. Director of Forestry (125 SCRA 302), this court departed from the aforementioned rule and held that, x x x
although the evidence of the parties were on the question of granting or denying the petitioner-appellants application for a writ of
preliminary injunction, the trial court correctly applied said evidence in the resolution of the motion to dismiss. Likewise,
in Marcopper Mining Corporation v. Garcia (143 SCRA 178), we sanctioned the act of the trial court in considering, in addition to
the complaint, other pleadings submitted by the parties in deciding whether or not the complaint should be dismissed for lack of
cause of action. This Court deemed such course of action but logical where the trial court had the opportunity to examine the merits
of the complaint, the answer with counterclaim, the petitioners answer to the counterclaim and its answer to the request for
admission."

In the instant case, aside from the original and the amended complaint, the lower court had every opportunity to study the merits of the case
by examining the other pleadings submitted by the parties such as the Motion for Cancellation of the Notices of Lis Pendens and Attorneys
Lien, Answer to Interrogatories of Plaintiff, Opposition to Motion for Cancellation of the Notices of Lis Pendens and Attorneys Lien, Answer
with Counterclaim, Answer with Counterclaim and Special/Affirmative Defenses, Reply to Special/Affirmative Defenses and Answer to
Counterclaim of Defendant Spouses Epifanio and Cecilia Alano, Answer of Defendant Natalia Realty, Inc., Answer to Counterclaim of
Defendant Natalia Realty, Inc., Interrogatories to Defendant Natalia Realty, Inc., Amended Answer with Counterclaim to Defendant Yolanda
P. Alano and Opposition to Admit Amended Answer for Yolanda P. Alano.

It is only logical for the lower court to consider all these pleadings in determining whether there was a sufficient cause of action as the order
of dismissal is summary in nature.[16] So long as those attached pleadings are procedurally responsive to the complaint, then they may be
considered in evaluating the sufficiency of the cause of action in the complaint. In addition, since the dismissal of a complaint by virtue of a
motion to dismiss for failure to state or for insufficiency of cause of action would be tantamount to a summary judgment, the lower court
should at least have considered the attached documents and pleadings as a matter of due process. Strictly limiting the evaluation of the
merits of the complaint to its averments or allegations would be too constricting an interpretation of the rule. It must be remembered that the
complaint itself is accompanied by documentary evidence attached as annexes. The responsive pleadings, in addition, though not
attachments to the complaint, clarify its merits since they are already part of the records of the case and should therefore be considered.

What this Court finds unusual is the timing of the sale and the reason why the share of the respondent-spouses as part of the settlement
they had with Natalia Realty, Inc. had to be sold to their daughter Yolanda P. Alano by the said corporation. These questions immediately
manifested themselves from a reading of the two documents attached to the second Amended Complaint. The retainer agreement provided,
thus:

"This is to confirm in writing our agreement to retain your legal services to represent us in the Securities and Exchange Commission,
and until the Supreme Court, if necessary, in our action to recover whatever real properties, moneys, and other assets, plus
damages, as may be due or pertain to us by reason of our stockholdings in the Natalia Realty, Inc. under the following terms and
conditions:

x x x.............................x x x.............................x x x." (Emphasis supplied)

The above agreement resulted in the filing of SEC Case No. 3054, for liquidation, accounting and damages, with preliminary
injunction against Eugenio S. Baltao and five others of the Natalia Realty, Inc.

Apparently, on December 28, 1988, or six days before respondent-spouses filed their motion to dismiss the SEC case on January 3, 1989,
a deed of sale was already executed between Natalia Realty, Inc. and respondent-spouses daughter Yolanda Alano. In said deed, Natalia
Realty, Inc. sold 23 hectares, out of the total 32.4 hectares awarded to the Alano spouses, to Yolanda Alano for P500,000.00.

We cannot comprehend why 23 hectares awarded to the Alano spouses as their rightful share by virtue of their stockholdings in Natalia
Realty, Inc. were sold to their daughter. The SEC case was precisely initiated by the Alano spouses to recover their rightful share in said
company. In fact, a close perusal of the pleadings attached to the records of the case, particularly the Answer to Interrogatories of
Plaintiff, would reveal that there are not enough parcels of land to satisfy petitioners attorneys fees. In the Answer to the Interrogatories of
Plaintiff, it was disclosed that the remaining 12 hectares of land out of the 35 hectares awarded to respondent-spouses were already ceded
to Atty. Antonio Raquiza, respondent-spouses former lawyer. This only strengthens and lends credence to the suspicion that respondent-
spouses intended to defraud petitioner of her attorneys fees and that the Deed of Sale was indeed simulated.

In any case, this Court has held that where "the allegations in the complaint are ambiguous, indefinite or uncertain but, nevertheless, a cause
of action can, in any manner, be made out therefrom, and the plaintiff would be entitled to recover in any aspect of the facts or any combination
of the facts alleged, if they were to be proved, then the motion to dismiss should be denied." [17] In other words, a complaint should not be
dismissed for insufficiency of cause of action unless it appears clearly from the face of the complaint that the plaintiff is not entitled to any
relief under any state of facts which could be proved within the facts alleged therein. [18] A reading of said complaint plus the attached
documents and pleadings show that petitioner is entitled to relief.

With regard to the second assigned error, petitioner submits that the Court of Appeals erred in ordering the cancellation of the notice of lis
pendens on the grounds that it is not necessary for the protection of petitioners rights and that the complaint is not an action affecting title
and possession of real property.

Petitioner maintains that the annotation of the notice of lis pendens is necessary to protect her claim inasmuch as -

a)....the respondent spouses had in fact no leviable properties when levy on execution was attempted by the sheriff to satisfy the
decision in Civil Case No. 57023, proof thereof being the sheriffs return;

b)....although 32.4 hectares were given to the respondent spouses by virtue of the compromise agreement with respondent Natalia
Realty, Inc. in SEC Case No. 3054, 30% of said area was, at the instance of said respondent spouses, directly transferred to their
creditor, Antonio Raquiza, by Natalia Realty, Inc., and that the remaining area due the respondent spouses was "rounded off" to
23 hectares, these then being simulated conveyance to their daughter, respondent Yolanda P. Alano.

Petitioner further argues that based on Section 14, Rule 13 of the Revised Rules of Court and Section 76 of the Property Registration Decree,
"the whole point of the action initiated by that complaint was and is to vindicate petitioners right to an undivided portion of the lands subject
of the questioned sale, of which she had been deprived by the fraudulent machinations of private respondents." Such is a real action affecting
title or possession of real property in which a notice of lis pendens is proper and justified.

Petitioners argument is well-taken. The notice of lis pendens is an announcement to the whole world that a particular real property is in
litigation, and serves as a warning that one who acquires an interest over said property does so at his own risk, or that he gambles on the
result of the litigation over said property.[19]

In Viewmaster Construction Corporation v. Reynaldo Y. Maulit and Edgardo Castro,[20] this Court did not confine the availability of lis
pendens only to cases involving the title to or possession of real property when it held that:

"According to Section 24, Rule 14 of the Rules of Court and Section 76 of Presidential Decree No. 1529, a notice of lis pendens is
proper in the following cases, viz.:

a)....An action to recover possession of real estate;

b)....An action to quiet title thereto;

c)....An action to remove clouds thereon;

d)....An action for partition; and

e)....Any other proceedings of any kind in Court directly affecting the title to the land or the use or occupation thereof or the buildings
thereon." (Italics supplied)

Granting that petitioners action is not, actually, one directly affecting title to or possession of real property, still, in the Viewmaster case, the
perception of this Court is that the rule of lis pendens likewise pertained to the following:

"x x x all suits or actions which directly affect real property and not only those which involve the question of title, but also those
which are brought to establish an equitable estate, interest, or right, in specific real property or to enforce any lien, charge, or
encumbrance against it, there being in some cases a lis pendens, although at the commencement of the suit there is no present
vested interest, claim, or lien in or on the property which it seeks to charge. It has also been held to apply in the case of a proceeding
to declare an absolute deed of mortgage, or to redeem from a foreclosure sale, or to establish a trust, or to suits for the settlement
and adjustment of partnership interests." (Italics supplied)

In this case, petitioner claimed an interest or right in the property specifically subject of the alleged simulated sale. In fact, the object of the
complaint is not only to enforce a lien or encumbrance against the subject property but to enforce a valid claim as clearly shown in the prayer.
Verily, petitioners prayer in her second Amended Complaint is more than adequate to justify the registration of a notice of lis pendens when
it prayed for the following reliefs:

"(a)....Declaring the deed of sale executed by Defendant Natalia Realty Inc. in favor of Defendant Yolanda P. Alano, Annex "C" of
this complaint, null and void ab initio as well as the corresponding transfer certificates of title issued by the Register of Deeds for
Marikina, Metro Manila, in the name of Defendant Yolanda P. Alano as a consequence of the same, as follows:

Transfer Certificate of Title Book No.

No. 178579 T-891

Nos. 162863 to T-813

163034 inclusive T-814

Nos. 160691 to T-802

160941 inclusive T-803

T-804

Nos. 175404 to T-875

175433 inclusive

(b)....Ordering defendants to transfer, cede and assign to plaintiff 23,609 square meters of the land subject of said void and
inexistent sale, in partial payment of the attorneys fees due her for services rendered to Defendants-Spouses Epifanio J. Alano
and Cecilia P. Alano in SEC Case No. 3054;

(c)....Ordering the defendants, jointly and severally, to pay plaintiff attorneys fees in the amount of Fifty Thousand Pesos
(P50,000.00), moral damages in the amount of Two Hundred Thousand Pesos (P200,000.00), and exemplary damages in the
amount of One Hundred Thousand Pesos (P100,000.00), plus costs of suit."

The above-cited prayer in the second Amended Complaint shows that it directly affects the title to or possession of said real properties. It is
specific enough as it refers to a portion covered by the above-mentioned Transfer Certificates of Title covering 23,609 square meters of the
subject real property. The Notice of Lis Pendens is necessary to protect petitioners right especially since respondents allegedly intended to
defraud petitioner as shown by the sale under suspicious circumstances of the respondent-spouses settlement share of subject property by
Natalia Realty, Inc. to the formers daughter, respondent Yolanda P. Alano.

Plainly, the lower courts and the Court of Appeals misapplication of the rule on lis pendens will leave petitioners claim unprotected. As this
Court has stated in the Viewmaster case:

"The Court is not here saying that petitioner is entitled to the reliefs prayed for in its Complaint pending in the RTC. Verily, there is
no requirement that the right to or the interest in the property subject of a lis pendens be proven by the applicant. The Rule merely
requires that an affirmative relief be claimed. A notation of lis pendens neither affects the merits of a case nor creates a right or a
lien. It merely protects the applicants rights, which will be determined during the trial."

In Ginete v. Court of Appeals,[21] this Court held that [w]hat should guide judicial action is the principle that a party-litigant is to be given the
fullest opportunity to establish the merits of his complaint or defense rather than for him to lose life, liberty, honor or property on technicalities.
In the same case, this Court emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must
always be eschewed.

WHEREFORE, the petition is GRANTED and the Decision dated August 19, 1994 of the Court of Appeals in CA-G.R. CV 38380 is
REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Antipolo, Rizal, which is ordered to proceed with the
trial of Civil Case No. 90-1798. The Register of Deeds of the Province of Rizal and the Register of Deeds of Rizal, Marikina Branch are
directed to maintain the annotation of lis pendens in the certificates of title to the properties subject of said case until final judgment therein.
No costs.

SO ORDERED.
RULE 6 SECTION 11

G.R. No. L-53969 February 21, 1989

PURIFICACION SAMALA and LEONARDO ESGUERRA, petitioners,


vs.
HON. LUIS L. VICTOR, CFI of Cavite, Br. II, EMERITA C. JUMANAN and RICARDO JUMANAN, respondents.

Franco L. Loyola for petitioners.

Jose T Cajulis for respondents.

FERNAN, C.J.:

This is a petition for review on certiorari seeking the reversal of the decision of the Court of First Instance of Cavite, Branch II, Cavite City, in Civil Case
No. N-2411 entitled: "Emerita C. Jumanan, et al., plaintiffs, v. Felisa R. Garcia, et al, defendants; Felisa R. Garcia, et al., third-party plaintiffs, v.
Purificacion Samala, et al., third-party defendants; Purificacion Samala, fourth-party plaintiff, v. The Imperial Insurance, Inc., fourth-party defendant",
absolving the defendants from any liability and ordering the third party defendants and fourth party plaintiffs, Purificacion Samala and Leonardo
Esguerra (petitioners herein) and the fourth party defendant Imperial Insurance, Inc., jointly and severally to pay to plaintiffs (respondent herein) the
damages mentioned in the decision. 1

The factual background of this case as found by the trial court is as follows:

At approximately 6:30 o'clock in the morning of February 7, 1976, plaintiff Emerita C. Jumanan was riding a passenger jeepney on
her way from her residence at Binakayan, Kawit, Cavite to her place of work at the Department (now Ministry) of Public Information
in Intramuros, Manila, where she was employed. The said passenger jeepney, which is owned by defendants Felisa and Tomas
Garcia, was then being driven by defendant Virgilio Profeta and was bound for Manila carrying about twelve passengers.

While the aforesaid passenger jeepney where Emerita C. Jumanan was riding was about to make a left turn on the road just below
the bridge at Barrio Mabolo, Bacoor, Cavite, a delivery panel of the Luau restaurant bearing plate No. UH- 41373, driven by
Domingo Medina was approaching from the opposite direction from Manila, followed by the Saint Raphael Transit passenger bus,
owned by third party defendant Purificacion Samala and being driven by third party defendant Leonardo Esguerra. The Saint
Raphael Transit passenger bus was running fast and after overtaking a vehicle the Saint Raphael Transit bumped the back portion
of the delivery panel so violently and strongly causing the delivery panel to swerve abruptly to the path of the oncoming passenger
jeepney in which plaintiff Emerita C. Jumanan was on board. So forceful was the impact of the collision between the delivery panel
and the passenger jeepney that several passengers of the jeepney were injured, including plaintiff Emerita C. Jumanan.

Taken to the National Orthopedic Hospital, after an emergency treatment at the Katigbak clinic at Binakayan, Kawit, Cavite, Emerita
C. Jumanan was examined and found to be suffering from tenderness and swelling of the right thigh, tenderness over the left hip,
tenderness over the nape and back of the neck of the right shoulder; limitation of left extremity, light limitation of motion of right
extremity; contusion left hip right thigh and fracture of left inferior ramus of ischium Exhibits D and D-1). Admitted and treated at
the National Orthopedic Hospital on February 7, 1976, Emerita C. Jumanan was discharged on a wheel chair on February 20,
1976 and advised to have complete bed rest for thirty days. 2

Emerita C. Jumanan, assisted by her husband Ricardo Jumanan, filed before the CFI of Cavite a complaint for damages arising from physical injuries
suffered by her as a passenger of the jeepney bearing plate No. PUJ-VY-542 '75 allegedly owned and operated by the four-named defendants, spouses
Felisa and Tomas Garcia, Emetiquio M. Jarin and Juanita Madlangbayan, and driven by the last named defendant, Virgilio Profeta.

In their separate answers, both Jarin and Madlangbayan denied liability, claiming they no longer owned the passenger jeepney at the time of the
incident in question, said ownership having been transferred to the spouses Garcia. While admitting to be the owners of the passenger jeepney, the
spouses Garcia nonetheless denied liability, alleging that the vehicular collision complained of was attributable to the fault and negligence of the owner
and driver of the Saint Raphael Transit passenger bus with plate No. XGY-297 PUB- Phil. '75. Consequently, a third-party complaint was filed by
defendants spouses Garcia and Virgilio Profeta against Purificacion Samala and Leonardo Esguerra, owner and driver, respectively, of the Saint
Raphael Transit Bus. The latter defendants, in turn, filed a fourth-party complaint against the insurer of the Saint Raphael Transit Bus, Imperial
Insurance, Inc., which was declared in default for failure to appear at the pre-trial conference.

After trial, respondent Judge rendered a decision in favor of the defendants, the dispositive portion of which reads:

PREMISES CONSIDERED, judgment is hereby rendered -

1. Absolving defendants Felisa and Tomas Garcia, Virgilio Profeta, Juanita Madlangbayan and Emetiquio Jarin from any liability;

2. Ordering the third party defendants and fourth party plaintiffs, Purificacion Samala and Leonardo Esguerra, and the fourth party
defendant Imperial Insurance, Inc., jointly and severally, to pay to plaintiffs Emerita C. Jumanan and Ricardo Jumanan the
following-.

(a) Actual or compensatory damages in the amount of P 7,958.83;

(b) Moral damages in the amount of P 5,000.00;

(c) Exemplary damages in the amount of P 3,000.00; and

(d) Attorney's fees and expenses of litigation in the amount of P 2,000.00.

Plus costs of this suit.

SO ORDERED. 3

Third party defendants Purificacion Samala and Leonardo Esguerra moved to reconsider said decision, but to no avail. Hence, this appeal by certiorari,
therein third party defendants (petitioners herein) contending that:

1. The lower court erred in holding that the third-party defendants and fourth party plaintiff and the fourth party defendant are jointly
and severally liable to pay the claim of plaintiffs.

2. The third-party defendant and fourth-party plaintiff should be absolved from any liability since the principal defendants have been
absolved from the claim of plaintiffs, a matter not appreciated by the lower court;

3. The lower court erred in not holding that since plaintiffs' cause of action is based on culpa contractual against the defendants
only, they cannot recover from the third- party defendants fourth-party plaintiffs on a cause of action based on tort or quasi-delict. 4

At issue in this case is the nature and office of a third-party complaint.

Appellants argue that since plaintiffs filed a complaint for damages against the defendants on a breach of contract of carriage, they cannot recover
from the third-party defendants on a cause of action based on quasi-delict. The third party defendants, they allege, are never parties liable with respect
to plaintiff s claim although they are with respect to the defendants for indemnification, subrogation, contribution or other reliefs. Consequently, they
are not directly liable to the plaintiffs. Their liability commences only when the defendants are adjudged liable and not when they are absolved from
liability as in the case at bar. 5

Quite apparent from these arguments is the misconception entertained by appellants with respect to the nature and office of a third party complaint.

Section 16, Rule 6 of the Revised Rules of Court defines a third party complaint as a "claim that a defending party may, with leave of court, file against
a person not a party to the action, called the third-party defendant, for contribution, indemnification, subrogation, or any other relief, in respect of his
opponent's claim." In the case of Viluan vs. Court of appeals, et al., 16 SCRA 742 [1966], this Court had occasion to elucidate on the subjects covered
by this Rule, thus:

... As explained in the Atlantic Cost Line R. Co. vs. U.S. Fidelity & Guaranty Co., 52 F. Supp. 177 (1943:)

'From the sources of Rule 146 and the decisions herein cited, it is clear that this rule, like the admiralty rule,
'covers two distinct subjects, the addition of parties defendant to the main cause of action, and the bringing in
of a third party for a defendant's remedy over'. ...
'If the third party complaint alleges facts showing a third party's direct liability to plaintiff on the claim set out in
plaintiffs petition, then third party 'shall' make his defenses as provided in Rule 12 and his counterclaims against
plaintiff as provided in Rule 13. In the case of alleged direct liability, no amendment (to the complaint) is
necessary or required. The subject-matter of the claim is contained in plaintiff's complaint, the ground of third
party's liability on that claim is alleged in third party complaint, and third party's defense to set up in his answer
to plaintiff's complaint. At that point and without amendment, the plaintiff and third party are at issue as to their
rights respecting the claim.

The provision in the rule that, 'The third-party defendant may assert any defense which the third-party plaintiff
may assert to the plaintiffs claim,' applies to the other subject, namely, the alleged liability of third party
defendant. The next sentence in the rule, 'The third-party defendant is bound by the adjudication of the third
party plaintiffs liability to the plaintiff, as well as of his own to the plaintiff or to the third- party plaintiff applies to
both subjects. If third party is brought in as liable only to defendant and judgment is rendered adjudicating
plaintiff's right to recover against defendant and defendant's rights to recover against third party, he is bound
by both adjudications. That part of the sentence refers to the second subject. If third party is brought in as liable
to plaintiff, then third party is bound by the adjudication as between him and plaintiff. That refers to the first
subject. If third party is brought in as liable to plaintiff and also over to defendant, then third party is bound by
both adjudications. ....

Under this Rule, a person not a party to an action may be impleaded by the defendant either (a) on an allegation of liability to the latter; (b) on the
ground of direct liability to the plaintiff-, or, (c) both (a) and (b). The situation in (a) is covered by the phrase "for contribution, indemnity or subrogation;"
while (b) and (c) are subsumed under the catch all "or any other relief, in respect of his opponent's claim."

The case at bar is one in which the third party defendants are brought into the action as directly liable to the plaintiffs upon the allegation that "the
primary and immediate cause as shown by the police investigation of said vehicular collision between (sic) the Above-mentioned three vehicles was
the recklessness and negligence and lack of imprudence (sic) of the third-party defendant Virgilio (should be Leonardo) Esguerra y Ledesma then
driver of the passenger bus." 7 The effects are that "plaintiff and third party are at issue as to their rights respecting the claim" and "the third party is
bound by the adjudication as between him and plaintiff." It is not indispensable in the premises that the defendant be first adjudged liable to plaintiff
before the third-party defendant may be held liable to the plaintiff, as precisely, the theory of defendant is that it is the third party defendant, and not
he, who is directly liable to plaintiff. The situation contemplated by appellants would properly pertain to situation (a) above wherein the third party
defendant is being sued for contribution, indemnity or subrogation, or simply stated, for a defendant's "remedy over".

Anent appellant's claim that plaintiff who sued on contractual breach cannot recover on the basis of quasi-delict, suffice it to say that as the primary
purpose of this rule is to avoid circuity of action and to dispose of in one litigation, the entire subject matter arising from a particular set of fact 8 it is
immaterial that the third-party plaintiff asserts a cause of action against the third party defendant on a theory different from that asserted by the plaintiff
against the defendant. 9 It has likewise been held that "a defendant in a contract action may join as third-party defendants those liable to him in tort for
the plaintiff s claim against him or directly to the plaintiff. 10

The incident complained of having been found to have been caused by the negligence of appellant Leonardo Esguerra, driver and employee of co-
appellant Purificacion Samala, no reversible error was committed by the trial court in adjudging the latter liable to plaintiffs-appellees.

WHEREFORE, the instant appeal by certiorari is hereby DISMISSED with costs against appellants. This decision is immediately executory.

SO ORDERED.
RULE 8 SECTION 1

SECOND DIVISION
JESSE U. LUCAS, G.R. No. 190710
Petitioner,
Present:

CARPIO, J.,
Chairperson,
- versus - NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

Promulgated:
JESUS S. LUCAS,
Respondent. June 6, 2011

x----------------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review on certiorari, we address this question to
guide the Bench and the Bar in dealing with a relatively new evidentiary tool. Assailed in this petition are the Court of Appeals (CA) Decision[1] dated
September 25, 2009 and Resolution dated December 17, 2009.

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the Submission of Parties to DNA
Testing)[2] before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie),
migrated to Manila from Davao and stayed with a certain Ate Belen (Belen) who worked in a prominent nightspot in Manila. Elsie would oftentimes
accompany Belen to work. On one occasion, Elsie got acquainted with respondent, Jesus S. Lucas, at Belens workplace, and an intimate relationship
developed between the two. Elsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of petitioners
father was not stated in petitioners certificate of live birth. However, Elsie later on told petitioner that his father is respondent. On August 1, 1969,
petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and petitioner for a
period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to accept respondents offer of support and decided to
raise petitioner on her own. While petitioner was growing up, Elsie made several attempts to introduce petitioner to respondent, but all attempts were
in vain.

Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal certificate; (c) petitioners college diploma,
showing that he graduated from Saint Louis University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation from the same
school; (e) Certificate of Recognition from the University of the Philippines, College of Music; and (f) clippings of several articles from different
newspapers about petitioner, as a musical prodigy.
Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establish filiation. His counsel therefore went
to the trial court on August 29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the RTC, finding the petition to be sufficient
in form and substance, issued the Order[3] setting the case for hearing and urging anyone who has any objection to the petition to file his opposition.
The court also directed that the Order be published once a week for three consecutive weeks in any newspaper of general circulation in the Philippines,
and that the Solicitor General be furnished with copies of the Order and the petition in order that he may appear and represent the State in the case.

On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special Appearance and Comment. He
manifested inter alia that: (1) he did not receive the summons and a copy of the petition; (2) the petition was adversarial in nature and therefore
summons should be served on him as respondent; (3) should the court agree that summons was required, he was waiving service of summons and
making a voluntary appearance; and (4) notice by publication of the petition and the hearing was improper because of the confidentiality of the subject
matter.[4]

On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the Case. Respondent
reiterated that the petition for recognition is adversarial in nature; hence, he should be served with summons.
After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration. [5] Respondent averred that the petition was not in due
form and substance because petitioner could not have personally known the matters that were alleged therein. He argued that DNA testing cannot be
had on the basis of a mere allegation pointing to respondent as petitioners father. Moreover, jurisprudence is still unsettled on the acceptability of DNA
evidence.
On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an Order[6] dismissing the case. The court remarked that, based
on the case of Herrera v. Alba,[7] there are four significant procedural aspects of a traditional paternity action which the parties have to face: a prima
facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and the child. The court opined that
petitioner must first establish these four procedural aspects before he can present evidence of paternity and filiation, which may include incriminating
acts or scientific evidence like blood group test and DNA test results. The court observed that the petition did not show that these procedural aspects
were present. Petitioner failed to establish a prima facie case considering that (a) his mother did not personally declare that she had sexual relations
with respondent, and petitioners statement as to what his mother told him about his father was clearly hearsay; (b) the certificate of live birth was not
signed by respondent; and (c) although petitioner used the surname of respondent, there was no allegation that he was treated as the child of
respondent by the latter or his family. The court opined that, having failed to establish a prima facie case, respondent had no obligation to present any
affirmative defenses. The dispositive portion of the said Order therefore reads:
WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a traditional
paternity action in his petition, his motion for the submission of parties to DNA testing to establish paternity and filiation is
hereby DENIED. This case is DISMISSED without prejudice.
SO ORDERED.[8]

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in his favor. Thus, on October 20,
2008, it issued the Order[9] setting aside the courts previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set aside.
Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on January 22, 2009 at
8:30 in the morning.

xxxx

SO ORDERED.[10]

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is premature considering that a full-blown trial has
not yet taken place. The court stressed that the petition was sufficient in form and substance. It was verified, it included a certification against forum
shopping, and it contained a plain, concise, and direct statement of the ultimate facts on which petitioner relies on for his claim, in accordance with
Section 1, Rule 8 of the Rules of Court. The court remarked that the allegation that the statements in the petition were not of petitioners personal
knowledge is a matter of evidence. The court also dismissed respondents arguments that there is no basis for the taking of DNA test, and that
jurisprudence is still unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA Evidence[11] allows the conduct of DNA testing,
whether at the courts instance or upon application of any person who has legal interest in the matter in litigation.

Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Petition, [12] reiterating that (a) the
petition was not in due form and substance as no defendant was named in the title, and all the basic allegations were hearsay; and (b) there was
no prima facie case, which made the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing. [13]

Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 and January 19, 2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed Orders dated
October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch 172 of Valenzuela City in SP. Proceeding
Case No. 30-V-07 are REVERSED and SET ASIDE. Accordingly, the case docketed as SP. Proceeding Case No. 30-V-07 is
DISMISSED.[14]

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had been served on him. Respondents
special appearance could not be considered as voluntary appearance because it was filed only for the purpose of questioning the jurisdiction of the
court over respondent. Although respondent likewise questioned the courts jurisdiction over the subject matter of the petition, the same is not equivalent
to a waiver of his right to object to the jurisdiction of the court over his person.

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testing order to abbreviate the
proceedings. It noted that petitioner failed to show that the four significant procedural aspects of a traditional paternity action had been met. The CA
further held that a DNA testing should not be allowed when the petitioner has failed to establish a prima facie case, thus:

While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really have been intended to trample on the
substantive rights of the parties. It could have not meant to be an instrument to promote disorder, harassment, or extortion. It could have not
been intended to legalize unwarranted expedition to fish for evidence. Such will be the situation in this particular case if a court may at any
time order the taking of a DNA test. If the DNA test in compulsory recognition cases is immediately available to the petitioner/complainant
without requiring first the presentation of corroborative proof, then a dire and absurd rule would result. Such will encourage and promote
harassment and extortion.
xxxx

At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an absolute DNA testing to a compulsory
recognition test even if the plaintiff/petitioner failed to establish prima facie proof. x x x If at anytime, motu proprio and without pre-conditions,
the court can indeed order the taking of DNA test in compulsory recognition cases, then the prominent and well-to-do members of our society
will be easy prey for opportunists and extortionists. For no cause at all, or even for [sic] casual sexual indiscretions in their younger years
could be used as a means to harass them. Unscrupulous women, unsure of the paternity of their children may just be taking the chances-
just in case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and unconditional taking of DNA test for
compulsory recognition case opens wide the opportunities for extortionist to prey on victims who have no stomach for scandal. [15]

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit. [16]
In this petition for review on certiorari, petitioner raises the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER
THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER RAISED IN THE PETITION FOR CERTIORARI.

I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION WAS NOT
ACQUIRED OVER THE PERSON OF THE RESPONDENT.

I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT THE
RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OF THE COURT A
QUO.

I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT THE TITLE
OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING.

II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE PETITION BY REASON
OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO) FOR THE CONDUCT OF DNA TESTING.

II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA
TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF
FILIATION.

III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE CASE OF HERRERA
VS. ALBA,

ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY


ACTION.[17]

Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of jurisdiction over his person. Hence, the CA had
no legal basis to discuss the same, because issues not raised are deemed waived or abandoned. At any rate, respondent had already voluntarily
submitted to the jurisdiction of the trial court by his filing of several motions asking for affirmative relief, such as the (a) Motion for Reconsideration of
the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion
for Reconsideration of the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly admitted
that he has waived his right to summons in his Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the Case. Hence, the
issue is already moot and academic.
Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state respondents name, the body of the petition
clearly indicates his name and his known address. He maintains that the body of the petition is controlling and not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition since it is not a legal ground for the
dismissal of cases. If the CA entertained any doubt as to the propriety of DNA testing, it should have simply denied the motion.[18]Petitioner points out
that Section 4 of the Rule on DNA Evidence does not require that there must be a prior proof of filiation before DNA testing can be ordered. He adds
that the CA erroneously relied on the four significant procedural aspects of a paternity case, as enunciated in Herrera v. Alba.[19] Petitioner avers that
these procedural aspects are not applicable at this point of the proceedings because they are matters of evidence that should be taken up during the
trial.[20]

In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and merely reiterates his previous arguments.
However, on the issue of lack of jurisdiction, respondent counters that, contrary to petitioners assertion, he raised the issue before the CA in relation
to his claim that the petition was not in due form and substance. Respondent denies that he waived his right to the service of summons. He insists that
the alleged waiver and voluntary appearance was conditional upon a finding by the court that summons is indeed required. He avers that the assertion
of affirmative defenses, aside from lack of jurisdiction over the person of the defendant, cannot be considered as waiver of the defense of lack of
jurisdiction over such person.

The petition is meritorious.

Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondents motion to dismiss the petition for
illegitimate filiation. 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 a number
of cases, the court has granted the extraordinary remedy of certiorari on the denial of the motion to dismiss but only when it has been tainted with
grave abuse of discretion amounting to lack or excess of jurisdiction.[21] In the present case, we discern no grave abuse of discretion on the part of the
trial court in denying the motion to dismiss.

The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over his person due to the absence of summons,
and (b) defect in the form and substance of the petition to establish illegitimate filiation, which is equivalent to failure to state a cause of action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired jurisdiction over the
person of respondent, or whether respondent waived his right to the service of summons. We find that the primordial issue here is actually whether it
was necessary, in the first place, to serve summons on respondent for the court to acquire jurisdiction over the case. In other words, was the service
of summons jurisdictional? The answer to this question depends on the nature of petitioners action, that is, whether it is an action in personam, in
rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of
the person; while an action quasi in rem names a person as defendant, but its object is to subject that person's interest in a property to a corresponding
lien or obligation. A petition directed against the "thing" itself or the res, which concerns the status of a person, like a petition for adoption, annulment
of marriage, or correction of entries in the birth certificate, is an action in rem.[22]

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a
proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided that
the latter has jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby it is
brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made
effective. [23]

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to establish illegitimate filiation before
the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the latter thereby acquired jurisdiction over the case. An in
rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort to the right sought to be established.[24] Through publication, all interested parties
are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with jurisdiction, but merely for
satisfying the due process requirements.[25] This is but proper in order to afford the person concerned the opportunity to protect his interest if he so
chooses.[26] Hence, failure to serve summons will not deprive the court of its jurisdiction to try and decide the case. In such a case, the lack of summons
may be excused where it is determined that the adverse party had, in fact, the opportunity to file his opposition, as in this case. We find that the due
process requirement with respect to respondent has been satisfied, considering that he has participated in the proceedings in this case and he has
the opportunity to file his opposition to the petition to establish filiation.

To address respondents contention that the petition should have been adversarial in form, we further hold that the herein petition to establish
filiation was sufficient in form. It was indeed adversarial in nature despite its caption which lacked the name of a defendant, the failure to implead
respondent as defendant, and the non-service of summons upon respondent. A proceeding is adversarial where the party seeking relief has given
legal warning to the other party and afforded the latter an opportunity to contest it.[27] In this petitionclassified as an action in remthe notice requirement
for an adversarial proceeding was likewise satisfied by the publication of the petition and the giving of notice to the Solicitor General, as directed by
the trial court.

The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, which requires the complaint to
contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff bases his claim. A fact is essential if it cannot be stricken
out without leaving the statement of the cause of action inadequate. [28] A complaint states a cause of action when it contains the following elements:
(1) the legal right of plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right.[29]

The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent. Respondent, however,
contends that the allegations in the petition were hearsay as they were not of petitioners personal knowledge. Such matter is clearly a matter of
evidence that cannot be determined at this point but only during the trial when petitioner presents his evidence.
In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determination is the sufficiency of the
allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are true, for said motion must hypothetically
admit the truth of the facts alleged in the complaint. [30]
The inquiry is confined to the four corners of the complaint, and no other. [31] The test of the sufficiency of the facts alleged in the complaint is whether
or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer of the complaint.[32]

If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are assailed, it is incumbent upon the court to
deny the motion to dismiss and require the defendant to answer and go to trial to prove his defense. The veracity of the assertions of the parties can
be ascertained at the trial of the case on the merits.[33]

The statement in Herrera v. Alba[34] that there are four significant procedural aspects in a traditional paternity case which parties have to face
has been widely misunderstood and misapplied in this case. A party is confronted by these so-called procedural aspects during trial, when the parties
have presented their respective evidence. They are matters of evidence that cannot be determined at this initial stage of the proceedings, when only
the petition to establish filiation has been filed. The CAs observation that petitioner failed to establish a prima faciecasethe first procedural aspect in a
paternity caseis therefore misplaced. A prima facie case is built by a partys evidence and not by mere allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for DNA testing since no evidence
has, as yet, been presented by petitioner. More essentially, it is premature to discuss whether, under the circumstances, a DNA testing order is
warranted considering that no such order has yet been issued by the trial court. In fact, the latter has just set the said case for hearing.

At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative proof is well taken and deserves the Courts
attention. In light of this observation, we find that there is a need to supplement the Rule on DNA Evidence to aid the courts in resolving motions for
DNA testing order, particularly in paternity and other filiation cases. We, thus, address the question of whether a prima facie showing is necessary
before a court can issue a DNA testing order.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system.
It provides the prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory
reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the probative value of
DNA evidence. It seeks to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effectively and properly, [and] shall
not be misused and/or abused and, more importantly, shall continue to ensure that DNA analysis serves justice and protects, rather than prejudice the
public.[35]

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and integrity
of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any
person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice
to the parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;


(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the
case; and

(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity
of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law
enforcement agencies, before a suit or proceeding is commenced.

This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are
established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first
present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or good cause for the holding of the test. [36] In these
states, a court order for blood testing is considered a search, which, under their Constitutions (as in ours), must be preceded by a finding of probable
cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a
finding of probable cause. The Supreme Court of Louisiana eloquently explained

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still
applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made
before a court may order a compulsory blood test. Courts in various jurisdictions have differed regarding the kind of procedures
which are required, but those jurisdictions have almost universally found that a preliminary showing must be made before a court
can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as a preliminary matter, before the
court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity.
As explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily undergo a blood
test, a show cause hearing must be held in which the court can determine whether there is sufficient evidence to establish a prima
facie case which warrants issuance of a court order for blood testing.[37]

The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus, during
the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity.

Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon the court. The court may,
for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity and
the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated September 25, 2009 and Resolution
dated December 17, 2009 are REVERSED and SET ASIDE. The Orders dated October 20, 2008 and January 19, 2009 of
the Regional Trial Court of Valenzuela City are AFFIRMED.

SO ORDERED
RULE 9 SECTION 1

GEORGE KATON, petitioner, vs. MANUEL PALANCA JR., LORENZO AGUSTIN, JESUS GAPILANGO and JUAN FRESNILLO, respondents.

DECISION
PANGANIBAN, J.:

Where prescription, lack of jurisdiction or failure to state a cause of action clearly appear from the complaint filed with the trial court, the action
may be dismissed motu proprio by the Court of Appeals, even if the case has been elevated for review on different grounds. Verily, the dismissal of
such cases appropriately ends useless litigations.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing the December 8, 2000 Decision[2] and the November 20, 2001
Resolution[3] of the Court of Appeals in CA-GR SP No. 57496. The assailed Decision disposed as follows:

Assuming that petitioner is correct in saying that he has the exclusive right in applying for the patent over the land in question, it appears that his action
is already barred by laches because he slept on his alleged right for almost 23 years from the time the original certificate of title has been issued to
respondent Manuel Palanca, Jr., or after 35 years from the time the land was certified as agricultural land. In addition, the proper party in the annulment
of patents or titles acquired through fraud is the State; thus, the petitioners action is deemed misplaced as he really does not have any right to assert
or protect. What he had during the time he requested for the re-classification of the land was the privilege of applying for the patent over the same
upon the lands conversion from forest to agricultural.

WHEREFORE, the petition is hereby DISMISSED. No pronouncement as to cost.[4]

The assailed Resolution, on the other hand, denied the Motion for Reconsideration filed by petitioner. It affirmed the RTCs dismissal of his
Complaint in Civil Case No. 3231, not on the grounds relied upon by the trial court, but because of prescription and lack of jurisdiction.

The Antecedent Facts

The CA narrates the antecedent facts as follows:

On August 2, 1963, herein [P]etitioner [George Katon] filed a request with the District Office of the Bureau of Forestry in Puerto Princesa, Palawan, for
the re-classification of a piece of real property known as Sombrero Island, located in Tagpait, Aborlan, Palawan, which consists of approximately 18
hectares. Said property is within Timberland Block of LC Project No. 10-C of Aborlan, Palawan, per BF Map LC No. 1582.

Thereafter, the Bureau of Forestry District Office, Puerto Princesa, Palawan, ordered the inspection, investigation and survey of the land subject of the
petitioners request for eventual conversion or re-classification from forest to agricultural land, and thereafter for George Katon to apply for a homestead
patent.

Gabriel Mandocdoc (now retired Land Classification Investigator) undertook the investigation, inspection and survey of the area in the presence of the
petitioner, his brother Rodolfo Katon (deceased) and his cousin, [R]espondent Manuel Palanca, Jr. During said survey, there were no actual occupants
on the island but there were some coconut trees claimed to have been planted by petitioner and [R]espondent Manuel Palanca, Jr. (alleged overseer
of petitioner) who went to the island from time to time to undertake development work, like planting of additional coconut trees.

The application for conversion of the whole Sombrero Island was favorably endorsed by the Forestry District Office of Puerto Princesa to its main office
in Manila for appropriate action. The names of Felicisimo Corpuz, Clemente Magdayao and Jesus Gapilango and Juan Fresnillo were included in the
endorsement as co-applicants of the petitioner.

In a letter dated September 23, 1965, then Asst. Director of Forestry R.J.L. Utleg informed the Director of Lands, Manila, that since the subject land
was no longer needed for forest purposes, the same is therefore certified and released as agricultural land for disposition under the Public Land Act.
Petitioner contends that the whole area known as Sombrero Island had been classified from forest land to agricultural land and certified available for
disposition upon his request and at his instance. However, Mr. Lucio Valera, then [l]and investigator of the District Land Office, Puerto
Princesa, Palawan, favorably endorsed the request of [R]espondents Manuel Palanca Jr. and Lorenzo Agustin, for authority to survey on November
15, 1965. On November 22, a second endorsement was issued by Palawan District Officer Diomedes De Guzman with specific instruction to survey
vacant portions of Sombrero Island for the respondents consisting of five (5) hectares each. On December 10, 1965, Survey Authority No. R III-342-
65 was issued authorizing Deputy Public Land Surveyor Eduardo Salvador to survey ten (10) hectares of Sombrero Island for the respondents. On
December 23, 1990, [R]espondent Lorenzo Agustin filed a homestead patent application for a portion of the subject island consisting of an area of 4.3
hectares.

Records show that on November 8, 1996, [R]espondent Juan Fresnillo filed a homestead patent application for a portion of the island comprising 8.5
hectares. Records also reveal that [R]espondent Jesus Gapilango filed a homestead application on June 8, 1972. Respondent Manuel Palanca, Jr.
was issued Homestead Patent No. 145927 and OCT No. G-7089 on March 3, 1977[5] with an area of 6.84 hectares of Sombrero Island.

Petitioner assails the validity of the homestead patents and original certificates of title covering certain portions of Sombrero Island issued in favor of
respondents on the ground that the same were obtained through fraud. Petitioner prays for the reconveyance of the whole island in his favor.

On the other hand, [R]espondent Manuel Palanca, Jr. claims that he himself requested for the reclassification of the island in dispute and that on or
about the time of such request, [R]espondents Fresnillo, Palanca and Gapilango already occupied their respective areas and introduced numerous
improvements. In addition, Palanca said that petitioner never filed any homestead application for the island. Respondents deny that Gabriel Mandocdoc
undertook the inspection and survey of the island.

According to Mandocdoc, the island was uninhabited but the respondents insist that they already had their respective occupancy and improvements
on the island. Palanca denies that he is a mere overseer of the petitioner because he said he was acting for himself in developing his own area and
not as anybodys caretaker.

Respondents aver that they are all bona fide and lawful possessors of their respective portions and have declared said portions for taxation purposes
and that they have been faithfully paying taxes thereon for twenty years.

Respondents contend that the petitioner has no legal capacity to sue insofar as the island is concerned because an action for reconveyance can only
be brought by the owner and not a mere homestead applicant and that petitioner is guilty of estoppel by laches for his failure to assert his right over
the land for an unreasonable and unexplained period of time.

In the instant case, petitioner seeks to nullify the homestead patents and original certificates of title issued in favor of the respondents covering certain
portions of the Sombrero Island as well as the reconveyance of the whole island in his favor. The petitioner claims that he has the exclusive right to
file an application for homestead patent over the whole island since it was he who requested for its conversion from forest land to agricultural land.[6]

Respondents filed their Answer with Special and/or Affirmative Defenses and Counterclaim in due time. On June 30, 1999, they also filed a
Motion to Dismiss on the ground of the alleged defiance by petitioner of the trial courts Order to amend his Complaint so he could thus effect a
substitution by the legal heirs of the deceased, Respondent Gapilango. The Motion to Dismiss was granted by the RTC in its Order dated July 29,
1999.
Petitioners Motion for Reconsideration of the July 29, 1999 Order was denied by the trial court in its Resolution dated December 17, 1999, for
being a third and prohibited motion. In his Petition for Certiorari before the CA, petitioner charged the trial court with grave abuse of discretion on the
ground that the denied Motion was his first and only Motion for Reconsideration of the aforesaid Order.

Ruling of the Court of Appeals

Instead of limiting itself to the allegation of grave abuse of discretion, the CA ruled on the merits. It held that while petitioner had caused the
reclassification of Sombrero Island from forest to agricultural land, he never applied for a homestead patent under the Public Land Act. Hence, he
never acquired title to that land.
The CA added that the annulment and cancellation of a homestead patent and the reversion of the property to the State were matters between
the latter and the homestead grantee. Unless and until the government takes steps to annul the grant, the homesteaders right thereto stands.
Finally, granting arguendo that petitioner had the exclusive right to apply for a patent to the land in question, he was already barred by laches
for having slept on his right for almost 23 years from the time Respondent Palancas title had been issued.
In the Assailed Resolution, the CA acknowledged that it had erred when it ruled on the merits of the case. It agreed with petitioner that the trial
court had acted without jurisdiction in perfunctorily dismissing his September 10, 1999 Motion for Reconsideration, on the erroneous ground that it was
a third and prohibited motion when it was actually only his first motion.
Nonetheless, the Complaint was dismissed motu proprio by the challenged Resolution of the CA Special Division of five members with two
justices dissenting pursuant to its residual prerogative under Section 1 of Rule 9 of the Rules of Court.
From the allegations of the Complaint, the appellate court opined that petitioner clearly had no standing to seek reconveyance of the disputed
land, because he neither held title to it nor even applied for a homestead patent. It reiterated that only the State could sue for cancellation of the title
issued upon a homestead patent, and for reversion of the land to the public domain.
Finally, it ruled that prescription had already barred the action for reconveyance. First, petitioners action was brought 24 years after the issuance
of Palancas homestead patent. Under the Public Land Act, such action should have been taken within ten years from the issuance of the homestead
certificate of title. Second, it appears from the submission (Annex F of the Complaint) of petitioner himself that Respondents Fresnillo and Palanca had
been occupying six hectares of the island since 1965, or 33 years before he took legal steps to assert his right to the property. His action was filed
beyond the 30-year prescriptive period under Articles 1141 and 1137 of the Civil Code.
Hence, this Petition.[7]

Issues

In his Memorandum, petitioner raises the following issues:

1. Is the Court of Appeals correct in resolving the Petition for Certiorari based on an issue not raised (the merits of the case) in the Petition?

2. Is the Court of Appeals correct in invoking its alleged residual prerogative under Section 1, Rule 9 of the 1997 Rules of Civil Procedure in resolving
the Petition on an issue not raised in the Petition? [8]

The Courts Ruling

The Petition has no merit.


First Issue:
Propriety of Ruling on the Merits

This is not the first time that petitioner has taken issue with the propriety of the CAs ruling on the merits. He raised it with the appellate court
when he moved for reconsideration of its December 8, 2000 Decision. The CA even corrected itself in its November 20, 2001 Resolution, as follows:

Upon another review of the case, the Court concedes that it may indeed have lost its way and been waylaid by the variety, complexity and seeming
importance of the interests and issues involved in the case below, the apparent reluctance of the judges, five in all, to hear the case, and the volume
of the conflicting, often confusing, submissions bearing on incidental matters. We stand corrected.[9]

That explanation should have been enough to settle the issue. The CAs Resolution on this point has rendered petitioners issue moot. Hence,
there is no need to discuss it further. Suffice it to say that the appellate court indeed acted ultra jurisdictio in ruling on the merits of the case when the
only issue that could have been, and was in fact, raised was the alleged grave abuse of discretion committed by the trial court in denying petitioners
Motion for Reconsideration. Settled is the doctrine that the sole office of a writ of certiorari is the correction of errors of jurisdiction. Such writ does not
include a review of the evidence,[10] more so when no determination of the merits has yet been made by the trial court, as in this case.
Second Issue:
Dismissal for Prescription
and Lack of Jurisdiction

Petitioner next submits that the CA erroneously invoked its residual prerogatives under Section 1 of Rule 9 of the Rules of Court when it motu
proprio dismissed the Petition for lack of jurisdiction and prescription. According to him, residual prerogative refers to the power that the trial court, in
the exercise of its original jurisdiction, may still validly exercise even after perfection of an appeal. It follows that such powers are not possessed by an
appellate court.
Petitioner has confused what the CA adverted to as its residual prerogatives under Section 1 of Rule 9 of the Rules of Court with the residual
jurisdiction of trial courts over cases appealed to the CA.
Under Section 1 of Rule 9 of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed
waived, except when (1) lack of jurisdiction over the subject matter, (2) litis pendentia, (3) res judicata and (4) prescription are evident from the
pleadings or the evidence on record. In the four excepted instances, the court shall motu proprio dismiss the claim or action. In Gumabon v. Larin[11] we
explained thus:

x x x [T]he motu proprio dismissal of a case was traditionally limited to instances when the court clearly had no jurisdiction over the subject matter and
when the plaintiff did not appear during trial, failed to prosecute his action for an unreasonable length of time or neglected to comply with the rules or
with any order of the court. Outside of these instances, any motu proprio dismissal would amount to a violation of the right of the plaintiff to be
heard. Except for qualifying and expanding Section 2, Rule 9, and Section 3, Rule 17, of the Revised Rules of Court, the amendatory 1997 Rules of
Civil Procedure brought about no radical change. Under the new rules, a court may motu proprio dismiss a claim when it appears from the pleadings
or evidence on record that it has no jurisdiction over the subject matter; when there is another cause of action pending between the same parties for
the same cause, or where the action is barred by a prior judgment or by statute of limitations. x x x.[12] (Italics supplied)

On the other hand, residual jurisdiction is embodied in Section 9 of Rule 41 of the Rules of Court, as follows:

SEC. 9. Perfection of appeal; effect thereof. A partys appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal
in due time.

A partys appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal
filed in due time.

In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the
time to appeal of the other parties.

In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due
time and the expiration of the time to appeal of the other parties.

In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Section 2 of Rule 39, and allow withdrawal of the appeal. (Italics supplied)

The residual jurisdiction of trial courts is available at a stage in which the court is normally deemed to have lost jurisdiction over the case or the
subject matter involved in the appeal. This stage is reached upon the perfection of the appeals by the parties or upon the approval of the records on
appeal, but prior to the transmittal of the original records or the records on appeal.[13] In either instance, the trial court still retains its so-called residual
jurisdiction to issue protective orders, approve compromises, permit appeals of indigent litigants, order execution pending appeal, and allow the
withdrawal of the appeal.
The CAs motu proprio dismissal of petitioners Complaint could not have been based, therefore, on residual jurisdiction under Rule
41. Undeniably, such order of dismissal was not one for the protection and preservation of the rights of the parties, pending the disposition of the case
on appeal. What the CA referred to as residual prerogatives were the general residual powers of the courts to dismiss an action motu proprio upon the
grounds mentioned in Section 1 of Rule 9 of the Rules of Court and under authority of Section 2 of Rule 1 [14] of the same rules.
To be sure, the CA had the excepted instances in mind when it dismissed the Complaint motu proprio on more fundamental grounds directly
bearing on the lower courts lack of jurisdiction [15] and for prescription of the action. Indeed, when a court has no jurisdiction over the subject matter,
the only power it has is to dismiss the action.[16]
Jurisdiction over the subject matter is conferred by law and is determined by the allegations in the complaint and the character of the relief
sought.[17] In his Complaint for Nullification of Applications for Homestead and Original Certificate of Title No. G-7089 and for Reconveyance of
Title,[18]petitioner averred:

2. That on November 10, 1965, without the knowledge of [petitioner, Respondent] Manuel Palanca Jr., [petitioners] cousin, in connivance with his co-
[respondent], Lorenzo Agustin, x x x fraudulently and in bad faith:

2.1. x x x made the request for authority to survey as a pre-requisite to the filing of an application for homestead patent in his name and that of his Co-
[Respondent] Agustin, [despite being] fully aware that [Petitioner] KATON had previously applied or requested for re-classification and certification of
the same land from forest land to agricultural land which request was favorably acted upon and approved as mentioned earlier; a clear case of intrinsic
fraud and misrepresentation;

xxxxxxxxx

2.3. In stating in his application for homestead patent that he was applying for the VACANT PORTION of Sombrero Island where there was none, the
same constituted another clear case of fraud and misrepresentation;
3. That the issuance of Homestead Patent No. 145927 and OCT No. G-7089 in the name of [Respondent] Manuel Palanca Jr. and the filing of
Homestead Patent Applications in the names of [respondents], Lorenzo Agustin, Jesus Gapilango and Juan Fresnillo[,] having been done fraudulently
and in bad faith, are ipso facto null and void and of no effect whatsoever.[19]

xxxxxxxxx

x x x. By a wrongful act or a willful omission and intending the effects with natural necessity arise knowing from such act or omission, [Respondent
Palanca] on account of his blood relation, first degree cousins, trust, interdependence and intimacy is guilty of intrinsic fraud [sic]. x x x.[20]

Thereupon, petitioner prayed, among others, for a judgment (1) nullifying the homestead patent applications of Respondents Agustin, Fresnillo
and Gapilango as well as Homestead Patent No. 145927 and OCT No. G-7089 in the name of Respondent Palanca; and (2) ordering the director of
the Land Management Bureau to reconvey the Sombrero Island to petitioner.[21]
The question is, did the Complaint sufficiently allege an action for declaration of nullity of the free patent and certificate of title or, alternatively,
for reconveyance? Or did it plead merely for reversion?
The Complaint did not sufficiently make a case for any of such actions, over which the trial court could have exercised jurisdiction.
In an action for nullification of title or declaration of its nullity, the complaint must contain the following allegations: 1) that the contested
land was privately owned by the plaintiff prior to the issuance of the assailed certificate of title to the defendant; and 2) that the defendant
perpetuated a fraud or committed a mistake in obtaining a document of title over the parcel of land claimed by the plaintiff. [22] In
these cases, the nullity arises not from fraud or deceit, but from the fact that the director of the Land Management Bureau h ad no
jurisdiction to bestow title; hence, the issued patent or certificate of title was void ab initio.[23]
In an alternative action for reconveyance, the certificate of title is also respected as incontrovertible, but the transfer of the property or title thereto
is sought to be nullified on the ground that it was wrongfully or erroneously registered in the defendants name. [24] As with an annulment of title, a
complaint must allege two facts that, if admitted, would entitle the plaintiff to recover title to the disputed land: (1) that the plaintiff was the owner of the
land, and (2) that the defendant illegally dispossessed the plaintiff of the property.[25] Therefore, the defendant who acquired the property through
mistake or fraud is bound to hold and reconvey to the plaintiff the property or the title thereto.[26]
In the present case, nowhere in the Complaint did petitioner allege that he had previously held title to the land in question. On the contrary, he
acknowledged that the disputed island was public land,[27] that it had never been privately titled in his name, and that he had not applied for a homestead
under the provisions of the Public Land Act.[28] This Court has held that a complaint by a private party who alleges that a homestead patent was
obtained by fraudulent means, and who consequently prays for its annulment, does not state a cause of action; hence, such complaint must be
dismissed. [29]
Neither can petitioners case be one for reversion. Section 101 of the Public Land Act categorically declares that only the solicitor general or the
officer in his stead may institute such an action.[30] A private person may not bring an action for reversion or any other action that would have the effect
of canceling a free patent and its derivative title, with the result that the land thereby covered would again form part of the public domain. [31]
Thus, when the plaintiff admits in the complaint that the disputed land will revert to the public domain even if the title is canceled or amended,
the action is for reversion; and the proper party who may bring action is the government, to which the property will revert. [32] A mere homestead
applicant, not being the real party in interest, has no cause of action in a suit for reconveyance.[33] As it is, vested rights over the land applied for under
a homestead may be validly claimed only by the applicant, after approval by the director of the Land Management Bureau of the formers final proof of
homestead patent. [34]
Consequently, the dismissal of the Complaint is proper not only because of lack of jurisdiction, but also because of the utter absence of a cause
of action,[35] a defense raised by respondents in their Answer.[36] Section 2 of Rule 3 of the Rules of Court[37] ordains that every action must be
prosecuted or defended in the name of the real party in interest, who stands to be benefited or injured by the judgment in the suit. Indeed, one who
has no right or interest to protect has no cause of action by which to invoke, as a party-plaintiff, the jurisdiction of the court.[38]
Finally, assuming that petitioner is the proper party to bring the action for annulment of title or its reconveyance, the case should still be dismissed
for being time-barred.[39] It is not disputed that a homestead patent and an Original Certificate of Title was issued to Palanca on February 21,
1977,[40] while the Complaint was filed only on October 6, 1998. Clearly, the suit was brought way past ten years from the date of the issuance of the
Certificate, the prescriptive period for reconveyance of fraudulently registered real property.[41]
It must likewise be stressed that Palancas title -- which attained the status of indefeasibility one year from the issuance of the patent and the
Certificate of Title in February 1977 -- is no longer open to review on the ground of actual fraud. Ybanez v. Intermediate Appellate Court[42] ruled that
a certificate of title, issued under an administrative proceeding pursuant to a homestead patent, is as indefeasible as one issued under a judicial
registration proceeding one year from its issuance; provided, however, that the land covered by it is disposable public land, as in this case.
In Aldovino v. Alunan,[43] the Court has held that when the plaintiffs own complaint shows clearly that the action has prescribed, such action may
be dismissed even if the defense of prescription has not been invoked by the defendant. In Gicano v. Gegato,[44] we also explained thus:
"x x x [T]rial courts have authority and discretion to dismiss an action on the ground of prescription when the parties' pleadings or other facts on record
show it to be indeed time-barred; (Francisco v. Robles, Feb. 15, 1954; Sison v. McQuaid, 50 O.G. 97; Bambao v. Lednicky, Jan. 28, 1961; Cordova v.
Cordova, Jan. 14, 1958; Convets, Inc. v. NDC, Feb. 28, 1958; 32 SCRA 529; Sinaon v. Sorongan, 136 SCRA 408); and it may do so on the basis of a
motion to dismiss (Sec. 1,f, Rule 16, Rules of Court), or an answer which sets up such ground as an affirmative defense (Sec. 5, Rule 16), or even if
the ground is alleged after judgment on the merits, as in a motion for reconsideration (Ferrer v. Ericta, 84 SCRA 705); or even if the defense has not
been asserted at all, as where no statement thereof is found in the pleadings (Garcia v. Mathis, 100 SCRA 250; PNB v. Pacific Commission House,
27 SCRA 766; Chua Lamco v. Dioso, et al., 97 Phil. 821); or where a defendant has been declared in default (PNB v. Perez, 16 SCRA 270). What is
essential only, to repeat, is that the facts demonstrating the lapse of the prescriptive period be otherwise sufficiently and satisfactorily apparent on the
record; either in the averments of the plaintiff's complaint, or otherwise established by the evidence."[45](Italics supplied)

Clearly then, the CA did not err in dismissing the present case. After all, if and when they are able to do so, courts must endeavor to settle entire
controversies before them to prevent future litigations.[46]
WHEREFORE, the Petition is hereby DENIED, and the assailed Resolution AFFIRMED. The dismissal of the Complaint in Civil Case No. 3231
is SUSTAINED on the grounds of lack of jurisdiction, failure to state a cause of action and prescription. Costs against petitioner.
SO ORDERED.
RULE 10 SECTION 5

G.R. No. 166857 September 11, 2009

D.M. WENCESLAO & Associates, INC., Petitioner,


vs.
FREYSSINET PHILIPPINES, INC., Respondent.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 of the 10 August 2004 Decision2 and 21 January 2005 Resolution3 of the Court of Appeals in CA-G.R. CV No. 58093. In
its 10 August 2004 Decision, the Court of Appeals affirmed the 17 April 1997 Decision 4 of the Regional Trial Court of Manila, Branch 34 (trial court),
with modification that only petitioner D.M. Wenceslao & Associates, Inc. (DMWAI) shall be liable to pay respondent Freyssinet Philippines, Inc.
(FPI) P322,413.15 with interest at 6% per annum from the date of the filing of the complaint. The Court of Appeals also deleted the awards of attorneys
fees and expenses of litigation. In its 21 January 2005 Resolution, the Court of Appeals denied DMWAIs motion for reconsideration.

The Facts

Sometime in January 1989, DMWAI undertook the construction of the National Historical Institute Building (NHI project). On 6 January 1989, Delfin J.
Wenceslao, Jr. (Wenceslao, Jr.) accepted the contract proposal submitted by FPI for the fabrication and delivery of pre-stressed piles for the NHI
project for P2,600,000.5 The contract provided for a 30% down payment upon the signing of the contract and the balance of 70% shall be by progress
payment based on work accomplished. The contract also provided for an interest rate of 18% per annum on delinquent accounts.

On 5 August 1993, FPI filed a complaint6 against Wenceslao, Jr. doing business under the name and style of D.M. Wenceslao & Associates and/or
D.M. Wenceslao Construction. According to FPI, the NHI project had been completed in November 1989 but Wenceslao, Jr. has not fully paid FPI for
the pre-stressed piles. FPI prayed that Wenceslao, Jr. be ordered to pay FPI P322,413.15 plus interest at 18% per annum from November 1989 until
full payment and 25% of the award as attorneys fees and the cost of the suit.

On 29 March 1994, FPI filed a motion with leave of court to admit amended complaint.7 In the amended complaint,8 FPI impleaded DMWAI as a party
defendant. Wenceslao, Jr. opposed the motion on the ground that the amended complaint sought to create a new cause of action against him. In its
12 July 1994 Order,9 the trial court admitted the amended complaint.

On 17 April 1997, the trial court rendered a decision in FPIs favor. The dispositive portion of the 17 April 1997 Decision provides:

WHEREFORE, in view of the above findings, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the latter to
jointly and severally pay the plaintiff the sum of P322,413.15 with interest at 18% per annum from November 1989 until full payment and to pay the
sum equivalent to 25% of the principal balance as litigation expenses and attorneys fees and to pay the cost of the suit.

The counterclaim interposed by the defendants is hereby DISMISSED for lack of merit.

SO ORDERED.10

DMWAI appealed to the Court of Appeals. DMWAI alleged that the trial court erred in admitting FPIs amended complaint. DMWAI also questioned the
trial courts ruling that DMWAI is liable for the IBRD account and in holding Wenceslao, Jr. severally and jointly liable with DMWAI for the monetary
awards. DMWAI added that the trial court erred in awarding interest at 18% per annum, attorneys fees, litigation expenses and the cost of the suit.

On 10 August 2004, the Court of Appeals affirmed with modification the trial courts 17 April 1997 Decision. The dispositive portion of the 10 August
2004 Decision provides:

WHEREFORE, the decision appealed from is MODIFIED by deleting the award of attorneys fees and expenses of litigation and holding defendant-
appellant D.M. Wenceslao & Associates, Inc. solely liable to plaintiff-appellee Freyssinet Philippines, Inc. for the payment of the amount of P322,413.15,
with interest at six percent (6%) per annum from the date of filing of the complaint. However, the interest rate shall be twelve percent (12%) per annum
from the time the judgment in this case becomes final and executory and until such amount is fully paid.

SO ORDERED.11

DMWAI filed a motion for reconsideration. In its 21 January 2005 Resolution, the Court of Appeals denied the motion.

Hence, this petition.

The Ruling of the Trial Court

While ruling that DMWAI had fully paid FPI for the NHI project, the trial court still found DMWAI liable to FPI for the International Bank for Reconstruction
and Development (IBRD) account. According to the trial court, even after the excess payments from the NHI project were applied, DMWAIs statement
of account showed a balance of P322,413.15 from the IBRD account. The trial court said that, based on Section 5, Rule 10 12 of the Rules of Court, it
acquired jurisdiction over the issue of the unpaid balance on the IBRD account when FPI presented evidence to prove its claim and Wenceslao, Jr.
admitted that he still had an outstanding account with FPI. The trial court added that DMWAI did not object when FPI presented evidence with respect
to the IBRD account.

The Ruling of the Court of Appeals

The Court of Appeals stated that the trial court did not err in admitting FPIs amended complaint because the amendment was only a matter of form
as it merely impleaded DMWAI as an additional defendant and did not change or add another issue in the case.

The Court of Appeals affirmed the trial courts ruling that while the NHI project has been fully paid, DMWAI is still liable to FPI for the IBRD account.
The Court of Appeals noted that DMWAI did not object to FPIs Exhibit "J" showing that DMWAI has an outstanding balance of P618,796 for the IBRD
account and even adopted the same as its Exhibit "7." According to the Court of Appeals, DMWAIs failure to object to the evidence presented by FPI
on the IBRD account meant that DMWAI gave its implied consent to have the trial court pass upon the issue.

The Court of Appeals also ruled that Wenceslao, Jr. should not be held jointly and severally liable with DMWAI because Wenceslao, Jr. signed the
contract, not in his personal capacity, but as President of DMWAI.

However, the Court of Appeals modified the interest rate from 18% to 6% per annum. The Court of Appeals said that the interest rate of 18% per
annum on delinquent accounts pertained only to the NHI project, which has been fully paid. Since the unpaid balance of P322,413.15 concerned the
IBRD account and no evidence was presented to show the interest rate on the IBRD account, the Court of Appeals ruled that the interest rate should
be 6% per annum pursuant to Article 220913 of the Civil Code to be computed from the date of the filing of the complaint. However, the interest rate
shall be 12% per annum from the time the judgment becomes final and executory until it is satisfied.

The Court of Appeals deleted the awards of attorneys fees and expenses of litigation because there was no proof that DMWAI acted in gross and
evident bad faith in denying its liability to FPI on the NHI project.

The Issues

DMWAI raises the following issues:

1. Whether the trial court had jurisdiction over the IBRD account; and

Whether DMWAI is liable to pay interest on the IBRD account.

The Ruling of the Court

The petition has no merit.

DMWAI argues that the trial courts application of Section 5, Rule 10 of the Rules of Court was misplaced. DMWAI insists that at no time during the
trial did FPI present any evidence or testimony to prove DMWAIs liability for the IBRD account. DMWAI adds that it had no opportunity to fully present
evidence on the matter or to refute FPIs claim. DMWAI argues that the IBRD account was "merely mentioned" during the trial to prove that an off-
setting agreement existed between the parties and that it should be applied to the NHI project. DMWAI adds that it should not be made liable to pay
interest on the IBRD account as this was not the issue raised in FPIs complaint.
FPI maintains that the trial court had jurisdiction over the IBRD account because it was included in the issue of off-setting of accounts.

In Bank of America v. American Realty Corporation,14 we stated:

When evidence is presented by one party, with the express or implied consent of the adverse party, as to issues not alleged in the pleadings, judgment
may be rendered validly as regards those issues, which shall be considered as if they have been raised in the pleadings. There is implied consent to
the evidence thus presented when the adverse party fails to object thereto.1avvphi1

Clearly, a court may rule and render judgment on the basis of the evidence before it even though the relevant pleading had not been previously
amended, so long as no surprise or prejudice is thereby caused to the adverse party. Put a little differently, so long as the basic requirements of fair
play had been met, as where litigants were given full opportunity to support their respective contentions and to object to or refute each others evidence,
the court may validly treat the pleadings as if they had been amended to conform to the evidence and proceed to adjudicate on the basis of all the
evidence before it.15

DMWAI faults the trial court for finding it liable to FPI for the IBRD account despite the fact that the complaint sought to collect from the NHI project.
This is not accurate. While on the face of the complaint there was no specific allegation that DMWAI is liable to FPI for the IBRD account, subsequent
developments, from the pre-trial conference up to the presentation of evidence and the examination of witnesses, show that FPI sought to recover
DMWAIs unpaid accounts including the IBRD account. Moreover, DMWAI did not raise any objection on the issue.

A careful scrutiny of the decisions of the trial court and the Court of Appeals reveals that their findings and conclusions on the matter of DMWAIs
liability to FPI for the IBRD account are overwhelmingly supported by the evidence.

On this issue, the trial court stated:

However, considering the incorporation of the statement of account (Exh. "J") the balance from the IBRD project and subtracting therefrom the excess
after the payments were applied to the NHI project, this Court finds and so holds that defendant is still liable to the plaintiff. This is affirmed by the
admission of D.J. Wenceslao, Jr., in his testimony. Based from the provision of Rule 10, Section 5, judgment can be rendered by this Court ordering
the defendant to pay the unpaid obligation, it having acquired jurisdiction over said subject matter.

Although the issue raised and upon which the complaint is predicated is the collection from the NHI project, yet the account covering the IBRD [project]
of the defendant with the plaintiff was tried with the implied consent of the former. Under the rule it can be considered by the Court. Defendants
conformity is affirmed by D.J. Wencelsaos admission that they still have an outstanding balance with the plaintiff but not for the NHI project. Under
Rule 10, Sec.5 [,] failure to amend does not affect the result of the trial of said issue. The defendants did not even object to the plaintiffs presentation
of evidence with respect to the other account which is included in the statement of account Exh."J". Jurisdiction therefore over [the] other issue other
than that expressed in the present complaint was acquired by this Court.16

On the other hand, the Court of Appeals declared:

The Pre-Trial Order dated October 26, 1995 defined the issues as follows:

"1. Whether there is an agreement or negotiation regarding the off-setting of accounts between the parties.

2. If there was, whether the plaintiff [FPI] is still entitled to collect the balance or whether there is still a balance to be collected.

3. Whether defendant Wenceslao [Jr] is personally liable."

Wenceslao, Jr. admitted that based on the statement of account, the company has a liability with Freyssinet, but not on the NHI account. The statement
of account dated September 26, 1990 shows the total obligation of DMWA, Inc. to Freyssinet in the amount of P2,588,346.00, representing the contract
amount of P2,969,550.00 for the NHI Project and the balance of account of P618,796.00 for the IBRD Project. However, the statement of account
prepared by Freyssinet as of March 23, 1993 shows that the total obligation in the amount of P3,588,346.00 was reduced to P352,413.15. A check
dated May 15, 1993 in the amount of P30,000.00 was issued by Wenceslao, Jr. to Freyssinet, further reducing the obligation of DMWA, Inc. to
Freyssinet to P322,413.15.

Thus, when evidence is presented by one party, with the express or implied consent of the adverse party, as to issues not alleged in the pleadings,
judgment may be rendered validly as regards those issues, which shall be considered as if they have been raised in the pleadings. There is implied
consent to the evidence thus presented when the adverse party fails to object thereto. In the case at bench, appellants not only did not object to
Freyssinets Exhibit "J" showing that it has an outstanding balance in the amount of P618,796.00 for the IBRD Project, they even adopted the same
as their Exhibit "7".17 (Citations omitted)
Contrary to DMWAI allegations, evidence was properly presented with full opportunity on the part of both parties to support their relative contentions
and to refute each others evidence. In this case, DMWAI was not prejudiced by the inclusion of the IBRD account as one of the controverted issues.
Moreover, DMWAI had been afforded ample opportunity to refute and object to the evidence related to the IBRD account, thus, the rudiments of fair
play had been properly observed.

Since we have affirmed the ruling of the trial court and the Court of Appeals which held DMWAI liable to FPI for the IBRD account, we likewise affirm
the ruling of the Court of Appeals on DMWAIs liability to pay interest on the IBRD account.

WHEREFORE, we DENY the petition. We AFFIRM the 10 August 2004 Decision and 21 January 2005 Resolution of the Court of Appeals in CA-G.R.
CV No. 58093.

SO ORDERED.
RULE 13 SECTION 7

SPS. DOMINGO M. BELEN and G.R. No. 175334


DOMINGA P. BELEN, herein
represented by their attorney- Present:
in-fact NERY B. AVECILLA,
Petitioners, QUISUMBING, J.,
Chairperson,
CARPIO-MORALES,
TINGA,
- versus - NAZARIO, and
VELASCO, JR., JJ.
HON. PABLO R. CHAVEZ, Presiding Promulgated:
Judge, RTC-Branch 87, Rosario,
Batangas and all other persons acting March 26, 2008
under his orders and SPS. SILVESTRE
N. PACLEB and PATRICIA A. PACLEB,
represented herein by their attorney-in-
fact JOSELITO RIOVEROS,
Respondents.

x---------------------------------------------------------------------------x

DECISION

TINGA, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure assailing the Decision [1] and Resolution[2] of the Court of
Appeals in CA-G.R. SP No. 88731. The appellate courts decision dismissed the petition for certiorari which sought to nullify the orders of the Regional
Trial Court (RTC) of Rosario, Batangas, Branch 87, denying herein petitioners motion to quash writ of execution and their motion for reconsideration.
The Court of Appeals resolution denied petitioners motion for reconsideration of the decision.

The instant petition originated from the action for the enforcement of a foreign judgment against herein petitioners, spouses Domingo and Dominga
Belen, filed by private respondent spouses Silvestre and Patricia Pacleb, represented by their attorney-in-fact, Joselito Rioveros, before the RTC of
Rosario, Batangas.

The complaint alleged that private respondents secured a judgment by default in Case No. NC021205 rendered by a certain Judge John W.
Green of the Superior Court of the State of California. The judgment ordered petitioners to pay private respondents the amount of $56,204.69
representing loan repayment and share in the profits plus interest and costs of suit. The summons was served on petitioners address in San Gregorio,
Alaminos, Laguna, as was alleged in the complaint, and received by a certain Marcelo M. Belen.

On 5 December 2000, Atty. Reynaldo Alcantara entered his appearance as counsel for petitioners, stating that his legal services were retained at the
instance of petitioners relatives. Atty. Alcantara subsequently filed an answer, alleging that contrary to private respondents averment, petitioners were
actually residents of California, USA. The answer also claimed that petitioners liability had been extinguished via a release of abstract judgment issued
in the same collection case.
In view of petitioners failure to attend the scheduled pre-trial conference, the RTC ordered the ex parte presentation of evidence for private
respondents before the branch clerk of court. On 16 March 2001, before the scheduled ex parte presentation of evidence, Atty. Alcantara filed a motion
to dismiss, citing the judgment of dismissal issued by the Superior Court of the State of California, which allegedly dismissed Case No. NC021205.
The RTC held in abeyance the ex parte presentation of evidence of private respondents and the resolution of Atty. Alcantaras motion pending the
submission of a copy of the judgment of dismissal.

For failure to present a copy of the alleged judgment of dismissal, the RTC denied the motion to dismiss in an Order dated 19 February 2002.
Through a motion, Atty. Alcantara sought the reinstatement of the motion to dismiss by attaching a copy of the said foreign judgment.

For their part, private respondents filed a motion for the amendment of the complaint. The amended complaint attached to the motion averred
that private respondents were constrained to withdraw their complaint against petitioners from the California court because of the prohibitive cost of
litigation, which withdrawal was favorably considered by said court. The amended complaint prayed for judgment ordering petitioners to satisfy their
obligation to private respondents in the amount of P2,810,234.50.

The answer to the amended complaint raised the defenses of lack of cause of action, res judicata and lack of jurisdiction over the subject
matter and over the persons of the defendants since the amended complaint had raised an entirely new cause of action which should have been
ventilated in another complaint.

Petitioners and Atty. Alcantara failed to appear at the rescheduled pre-trial conference. Thus, the RTC declared petitioners in default and
allowed private respondents to present evidence ex parte. On 15 March 2003, Atty. Alcantara passed away without the RTC being informed of such
fact until much later.

On 5 August 2003, the RTC rendered a Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the defendants are hereby directed to pay the plaintiffs the following, to wit:

a) The amount of P656,688.00 (equivalent to $27,362.00) in an exchange ratio of One (1) dollar is
to P24.00 Philippine Currency;
b) Plus 30% of P656,688.00 which is P197,006.40;
c) Plus P1,576,051.20 (30% for eight (8) years, 1995-2003); and
d) Plus 12% per annum as interest of the principal obligation (P656,688.00) from 1995 to 2003;

SO ORDERED.[3]

A copy of the RTC decision intended for Atty. Alcantara was returned with the notation Addressee Deceased. A copy of the RTC decision
was then sent to the purported address of petitioners in San Gregorio, Alaminos, Laguna and was received by a certain Leopoldo Avecilla on 14 August
2003. Meanwhile, immediately after the promulgation of the RTC decision, private respondents filed an ex-parte motion for preliminary attachment
which the RTC granted in its Order dated 15 September 2003.

On 24 November 2003, private respondents sought the execution of the RTC decision. In its Order dated 10 December 2003, the RTC
directed the issuance of a writ of execution. Upon the issuance of a writ of execution, the real properties belonging to petitioners were levied upon and
the public auction scheduled on 15 January 2004.
On 16 December 2003, Atty. Carmelo B. Culvera entered his appearance as counsel for petitioners. On 22 December 2003, Atty. Culvera
filed a Motion to Quash Writ of Execution (With Prayer to Defer Further Actions). On 6 January 2004, he filed a Notice of Appeal from the RTC Decision
averring that he received a copy thereof only on 29 December 2003.

In an Order dated 7 July 2004, the RTC denied the motion seeking the quashal of the writ of execution.[4] Subsequently, the RTC denied
Atty. Culveras motion for reconsideration of said order.

Thus, petitioners filed a Rule 65 petition before the Court of Appeals, imputing on the RTC grave abuse of discretion tantamount to lack or
excess of jurisdiction (1) in rendering its decision although it had not yet acquired jurisdiction over their persons in view of the improper service of
summons; (2) in considering the decision final and executory although a copy thereof had not been properly served upon petitioners; (3) in issuing the
writ of execution before the decision had become final and executory and despite private respondents failure to comply with the procedural
requirements in filing the motion for the issuance of the said writ; and (4) in denying petitioners motion to quash the writ of execution and notice of
appeal despite sufficient legal bases in support thereof.
On 31 July 2006, the Court of Appeals rendered the assailed Decision dismissing the petition for certiorari. On 3 November 2006, it issued
the assailed Resolution denying petitioners motion for reconsideration.

Hence, the instant petition, attributing to the Court of Appeals the following errors:
THE COURT OF APPEALS COMMITTED SERIOUS ERRORS [OF] LAW IN RULING THAT THE TRIAL COURT
ACTED WITHIN ITS JURISDICTION OR DID NOT COMMIT GRAVE ABUSE OF DISCRETION WHEN IT CONSIDERED THE
APPEARANCE OF THE COUNSEL AS THEIR SUBMISSION TO THE JURISDICTION OF THE TRIAL COURT ALTHOUGH
SUCH APPEARANCE OF THE SAID COUNSEL WAS WITHOUT THEIR EXPRESS AUTHORITY BUT WAS DONE BY THEIR
ALLEGED RELATIVES.

THE COURT OF APPEALS COMMITTED SERIOUS ERRORS [OF] LAW WHEN IT RULED THAT THE DECISION OF
THE TRIAL COURT WAS DULY SERVED UPON THE PETITIONERS THROUGH THEIR ALLEGED RELATIVES ALTHOUGH
THE RECORDS OF THIS CASE CLEARLY SHOWS THAT THE SAID PETITIONERS ARE RESIDENTS OF UNITED STATES
OF AMERICA.[5]

In a Resolution dated 22 January 2007, the Court denied the petition because it is not accompanied by a valid verification and certification
of non-forum shopping. Petitioners sought reconsideration, which the Court granted in a Resolution dated 16 April 2007. The Court also ordered the
reinstatement of the petition and the filing of a comment.

The instant petition raises two issues, thus: (1) whether the RTC acquired jurisdiction over the persons of petitioners through either the proper
service of summons or the appearance of the late Atty. Alcantara on behalf of petitioners and (2) whether there was a valid service of the copy of the
RTC decision on petitioners.

On one hand, courts acquire jurisdiction over the plaintiffs upon the filing of the complaint. On the other hand, jurisdiction over the defendants
in a civil case is acquired either through the service of summons upon them or through their voluntary appearance in court andtheir submission to its
authority. As a rule, if defendants have not
been summoned, the court acquires no jurisdiction over their person, and a judgment rendered against them is null and void. To be bound by a
decision, a party should first be subject to the courts jurisdiction.[6]

In Asiavest Limited v. Court of Appeals,[7] the Court underscored the necessity of determining first whether the action is in personam, in
rem or quasi in rem because the rules on service of summons under Rule 14 of the Rules of Court of the Philippines apply according to the nature of
the action.[8] The Court elaborated, thus:

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide
the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can be acquired by personal
service of summons as provided under Section 7, Rule 14 of the Rules of Court. If he cannot be personally served with summons
within a reasonable time, substituted service may be made in accordance with Section 8 of said Rule. If he is temporarily out of
the country, any of the following modes of service may be resorted to: (1) substituted service set forth in Section 8; (2) personal
service outside the country, with leave of court; (3) service by publication, also with leave of court; or (4) any other manner the
court may deem sufficient.

However, in an action in personam wherein the defendant is a non-resident who does not voluntarily submit himself to
the authority of the court, personal service of summons within the state is essential to the acquisition of jurisdiction over her person.
This method of service is possible if such defendant is physically present in the country. If he is not found therein, the court cannot
acquire jurisdiction over his person and therefore cannot validly try and decide the case against him. An exception was laid down
in Gemperle v. Schenker wherein a non-resident was served with summons through his wife, who was a resident of the Philippines
and who was his representative and attorney-in-fact in a prior civil case filed by him; moreover, the second case was a mere
offshoot of the first case.

On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Nonetheless, summons
must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due
process requirements. Thus, where the defendant is a non-resident who is not found in the Philippines and (1) the action affects
the personal status of the plaintiff; (2) the action relates to, or the subject matter of which is property in the Philippines in which the
defendant has or claims a lien or interest; (3) the action seeks the exclusion of the defendant from any interest in the property
located in the Philippines; or (4) the property of the defendant has been attached in the Philippines service of summons may be
effected by (a) personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any other
manner the court may deem sufficient.[9]

The action filed against petitioners, prior to the amendment of the complaint, is for the enforcement of a foreign judgment in a complaint for
breach of contract whereby petitioners were ordered to pay private respondents the monetary award. It is in the nature of an action in
personam because private respondents are suing to enforce their personal rights under said judgment.

Applying the foregoing rules on the service of summons to the instant case, in an action in personam, jurisdiction over the person of the
defendant who does not voluntarily submit himself to the authority of the court is necessary for the court to validly try and decide the case through
personal service or, if this is not possible and he cannot be personally served, substituted service as provided in Rule 14, Sections 6-7.[10]
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 the defendant, for justifiable 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.[11]

If defendant cannot be served with summons because he is temporarily abroad, but otherwise he is a Philippine resident, service of summons
may, by leave of court, be effected out of the Philippines under Rule 14, Section 15. In all of these cases, it should be noted, defendant must be a
resident of the Philippines, otherwise an action in personam cannot be brought because jurisdiction over his person is essential to make a binding
decision.[12]

However, the records of the case reveal that herein petitioners have been permanent residents of California, U.S.A. since the filing of the
action up to the present. From the time Atty. Alcantara filed an answer purportedly at the instance of petitioners relatives, it has been consistently
maintained that petitioners were not physically present in the Philippines. In the answer, Atty. Alcantara had already averred that petitioners were
residents of California, U.S.A. and that he was appearing only upon the instance of petitioners relatives. [13] In addition, private respondents attorney-
in-fact, Joselito Rioveros, testified during the ex parte presentation of evidence that he knew petitioners to be former residents of Alaminos, Laguna
but are now living in California, U.S.A.[14] That being the case, the service of summons on petitioners purported address in San Gregorio, Alaminos,
Laguna was defective and did not serve to vest in court jurisdiction over their persons.

Nevertheless, the Court of Appeals correctly concluded that the appearance of Atty. Alcantara and his filing of numerous pleadings were
sufficient to vest jurisdiction over the persons of petitioners. Through certain acts, Atty. Alcantara was impliedly authorized by petitioners to appear on
their behalf. For instance, in support of the motion to dismiss the complaint, Atty. Alcantara attached thereto a duly authenticated copy of the judgment
of dismissal and a photocopy of the identification page of petitioner Domingo Belens U.S. passport. These documents could have been supplied only
by petitioners, indicating that they have consented to the appearance of Atty. Alcantara on their behalf. In sum, petitioners voluntarily submitted
themselves through Atty. Alcantara to the jurisdiction of the RTC.

We now come to the question of whether the service of a copy of the RTC decision on a certain Teodoro Abecilla is the proper reckoning
point in determining when the RTC decision became final and executory.

The Court of Appeals arrived at its conclusion on the premise that Teodoro Abecilla acted as petitioners agent when he received a copy of
the RTC decision. For their part, private respondents contend that the service of a copy of the RTC decision on Atty. Alcantara, notwithstanding his
demise, is valid. On the other hand, petitioners reiterate that they are residents of California, U.S.A. and thus, the service of the RTC decision of a
residence which is not theirs is not proper.

As a general rule, when a party is represented by counsel of record, service of orders and notices must be made upon said attorney and
notice to the client and to any other lawyer, not the counsel of record, is not notice in law. The exception to this rule is when service upon the party
himself has been ordered by the court.[15] In cases where service was made on the counsel of record at his given address, notice sent to petitioner
itself is not even necessary.[16]

The following provisions under Rule 13 of the Rules of Court define the proper modes of service of judgments:

SEC. 2. Filing and service, defined.x x x

Service is the act of providing a party with a copy of the pleading or paper concerned. x x x

SEC. 5. Modes of service.Service of pleadings, motions, notices, orders, judgments and other papers shall be made
either personally or by mail.
SEC. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be served either
personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders
or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.

SEC. 6. Personal service. Service of the papers may be made by delivering personally a copy to the party or his counsel,
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, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the
partys or counsels residence, if known, with a person of sufficient age and discretion then residing therein.

SEC. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the post office, in a sealed
envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage
fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry
service is available in the locality of either the sender or the addressee, service may be done by ordinary mail.

SEC. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be
made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may
be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service
is complete at the time of such delivery.

In the instant case, a copy of the RTC decision was sent first to Atty. Alcantara, petitioners counsel of record. However, the same was
returned unserved in view of the demise of Atty. Alcantara. Thus, a copy was subsequently sent to petitioners last known address in San Gregorio,
Alaminos, Laguna, which was received by a certain Leopoldo Avecilla.

Undoubtedly, upon the death of Atty. Alcantara, the lawyer-client relationship between him and petitioners has ceased, thus, the service of
the RTC decision on him is ineffective and did not bind petitioners.

The subsequent service on petitioners purported last known address by registered mail is also defective because it does not comply with the
requisites under the aforequoted Section 7 of Rule 13 on service by registered mail. Section 7 of Rule 13 contemplates service at the present address of
the party and not at any other address of the party. Service at the partys former address or his last known address or any address other than his
present address does not qualify as substantial compliance with the requirements of Section 7, Rule 13. Therefore, service by registered mail
presupposes that the present address of the party is known and if the person who receives the same is not the addressee, he must be duly authorized
by the former to receive the paper on behalf of the party.

Since the filing of the complaint, petitioners could not be physically found in the country because they had already become permanent
residents of California, U.S.A. It has been established during the trial that petitioners are former residents of Alaminos, Laguna, contrary to the averment
in the complaint that they reside and may be served with court processes thereat. The service of the RTC decision at their former address in Alaminos,
Laguna is defective and does not bind petitioners.

On many occasions,[17] the Court has strictly construed the requirements of the proper service of papers and judgments. Both in Heirs of
Delos Santos v. Del Rosario[18] and Tuazon v. Molina,[19] the service of the trial courts decision at an adjacent office and the receipt thereof by a person
not authorized by the counsel of record was held ineffective. Likewise, the service of the decision made at the ground floor instead of at the 9th floor of
a building in the address on record of petitioners counsel, was held invalid in PLDT v. NLRC.[20] In thesecases, there was no constructive service of
the decision even if
the service was made at the offices adjacent to the address on record of the parties counsels and even if the copies eventually found their way to
persons duly authorized to receive them.

In view of the foregoing, the running of the fifteen-day period for appeal did not commence upon the service of the RTC decision at the
address on record of Atty. Alcantara or at the Laguna address. It is deemed served on petitioners only upon its receipt by Atty. Culvera on 29 December
2003. Therefore, the filing of the Notice of Appeal on 06 January 2004 is within the reglementary period and should be given due course.

WHEREFORE, the instant petition for review on certiorari is GRANTED and the Decision and Resolution of the Court of Appeals in CA-G.R.
SP No. 88731 are REVERSED and SET ASIDE. Accordingly, the orders dated 7 July 2004 and 2 February 2005 of the Regional Trial Court of Rosario.
Batangas, Branch 87 are SET ASIDE. The RTC is also ordered to GIVE DUE COURSE to the Notice of Appeal filed by Atty. Culvera on 06 January
2004 . Costs against private respondents.

SO ORDERED.
RULE 14 SECTION 6-7

CONSTANTINO A. PASCUAL, substituted by his heirs, G.R. No. 171916


represented byZENAIDA PASCUAL,
Petitioner,
Present:

CORONA, J., Chairperson,


-versus- CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

LOURDES S. PASCUAL,
Respondent. Promulgated:

December 4, 2009
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Due process dictates that jurisdiction over the person of a defendant can only be acquired by the courts after a strict compliance with the
rules on the proper service of summons.

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, with Prayer for Temporary Restraining Order and
Writ of Preliminary Injunction, seeking to annul the Decision[1] dated June 29, 2005 and the Resolution[2] dated March 14, 2006 of the Court of Appeals
(CA) nullifying and vacating the Decision[3] dated December 3, 2002 and Order[4] dated April 4, 2003 of the Regional Trial Court (RTC), Branch 12,
Malolos, Bulacan.

The facts, as found in the records, are the following:

Petitioner filed a Complaint for Specific Performance with Prayer for Issuance of Preliminary Mandatory Injunction with Damages before the
RTC of Malolos, Bulacan against respondent. The process server, in his Return of Service [5] dated May 21, 2002, reported, among others that:

The undersigned Process Server of this Honorable Court went at defendant's given address at No. 4 Manikling
St., Talayan Village, Quezon City on May 20, 2002 to serve the summons and copy of the Complaint together with the annexes
thereto in connection with the above-entitled case.

At the time of the service of the said summons, the defendant was not at her home and only her maid was there who
refused to receive the said summons [in spite] of the insistence of the undersigned.

The undersigned, upon his request with the Brgy. Clerk at the said place, was given a certification that he really exerted
effort to effect the service of the said summons but failed due to the above reason. (Annex A).

The following day, May 21, 2002, the undersigned went back at defendant's residence to have her receive the subject
summons but again the above defendant was not at her house.
WHEREFORE, the original summons and copy of the complaint is hereby returned to the Honorable Court NOT
SERVED.

Malolos, Bulacan, May 21, 2002.

Thereafter, an alias summons was issued by the RTC and, on May 29, 2002, the following report was submitted:
The undersigned, on May 29, 2002, made a 3rd attempt to serve the alias summons issued by the Hon. Court relative
with the above-entitled case at the given address of the defendant.

The undersigned, accompanied by the barangay officials of the said place, proceeded at defendant's residence but the
undersigned was not permitted to go inside her house and was given information by her maid that the defendant was not there.

The defendant's car was parked inside her house and inquiries/verification made on her neighbors revealed that the
defendant was inside her house at the time of service of said summons and probably did not want to show-up when her maid
informed her of undersigned's presence.

WHEREFORE, the undersigned court process server respectfully returned the alias summons dated May 29,
2002 issued by the Hon. Court UNSERVED for its information and guidance.

Malolos, Bulacan, May 30, 2002.[6]

Subsequently, on August 14, 2002, the process server returned with the following report,[7] stating that a substituted service was effected:

This is to certify that on the 14th day of August, 2002, I personally went at Dr. Lourdes Pascual's residence at #4 Manikling
Street, Talayan Village, Quezon City, to serve the copy of the Summons dated August 12, 2002, together with a copy of the
Complaint and its annexes thereto.

Defendant Dr. Lourdes Pascual was out during the time of service of the said summons and only her housemaid was
present. The undersigned left a copy of the same to the latter who is at the age of reason but refused to sign the same.

WHEREFORE, the undersigned respectfully return the service of summons duly served for information and guidance of
the Honorable Court.

Malolos, Bulacan, August 14, 2002.

For failure of the respondent to file a responsive pleading, petitioner, on September 17, 2002, filed a Motion to Declare Defendant in
Default[8] to which the petitioner filed an Opposition/Comment to Plaintiff's Motion to Declare Defendant in Default [9] dated October 1, 2002, claiming
that she was not able to receive any summons and copy of the complaint. The RTC, in its Order[10] dated October 30, 2002, declared respondent in
default and allowed petitioner to file his evidence ex-parte.

Respondent filed a Motion for Reconsideration[11] dated November 18, 2002 seeking to set aside the above-mentioned Order dated October
30, 2002. However, the said motion was denied by the RTC in its Order[12] dated November 27, 2002.

Consequently, on December 3, 2002, the RTC, in its Decision,[13] found in favor of the petitioner. The dispositive portion of the said Decision
reads:

WHEREFORE, in light of all the foregoing, judgment is hereby rendered in favor of the plaintiff, Constantino A. Pascual,
and against Lourdes S. Pascual, ordering the latter as follows:
a. to CEASE AND DESIST from further intervening with the corporate and internal affairs of Rosemoor Mining
Corporation, consisting of acts and omissions prejudicial and detrimental to the interest of the said corporation resulting to
irreparable injury to herein plaintiff;

b. to pay plaintiff the sum of One Hundred Thousand Pesos (P100,000.00), for and by way of moral damages;

c. to pay the sum of Thirty Thousand Pesos (P30,000.00) for and by way of Attorney's fees; and

d. to pay the costs of this suit.

SO ORDERED.

Respondent then filed a Motion to Set Aside Order of Default[14] dated December 13, 2002, with the argument of non-service of summons
upon her. This was denied by the RTC in its Order[15] dated April 4, 2003; and on the same day, a Certificate of Finality and Entry of Judgment was
issued. Eventually, respondent, on April 28, 2003, filed a Motion for Reconsideration[16] of the Order dated April 4, 2003, which was denied by the RTC
in its Order[17] dated June 23, 2003. Finally, on June 26, 2003, a Writ of Execution was issued to enforce the Decision dated December 3, 2002 of the
RTC.

Aggrieved, respondent filed with the CA a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court which was granted by
the same Court in its Decision[18] dated June 29, 2005, the dispositive portion of which reads:

WHEREFORE, the petition is GIVEN DUE COURSE and GRANTED. The said Decision, as well as the Orders and the
processes on which this is premised, are NULLIFIED and VACATED.

SO ORDERED.

Petitioner comes now to this Court through a Petition for Review on Certiorari under Rule 45 of the Rules of Court, with Prayer for Temporary
Restraining Order and Writ of Preliminary Injunction, on the following grounds:

I
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THERE WAS AN INVALID SERVICE OF SUMMONS
UPON THE RESPONDENT AND, HENCE, THE COURT (REGIONAL TRIAL COURT) DID NOT ACQUIRE JURISDICTION OVER
THE RESPONDENT.

II
THE HONORABLE COURT OF APPEALS ERRED IN GIVING DUE COURSE TO THE PETITION WHEN FROM THE
UNDISPUTED FACTS, THE RESPONDENT'S FAILURE TO INTERPOSE AN APPEAL OR TO FILE A MOTION FOR
RECONSIDERATION OR A PETITION FOR RELIEF FROM JUDGMENT CLEARLY BARS THE INSTITUTION OF THE SPECIAL
CIVIL ACTION FOR CERTIORARI UNDER RULE 65, 1997 RULES OF CIVIL PROCEDURE.

Petitioner insists that there was a valid substituted service of summons and that there should be a presumption of regularity in the
performance of official functions. He also avers that certiorari, which was filed by the respondent with the CA, does not lie when the remedy of appeal
has been lost.

In her Comment with Motion to Cite for Contempt[19] dated August 29, 2006, respondent raises the following issues:
1. SHOULD THE PETITION BE DISMISSED FOR HAVING BEEN FILED IN VIOLATION REPUBLIC ACT NO. 6713 IN RELATION
TO ART. 5 OF THE CIVIL CODE?

2. ARE THE PETITIONER AND HIS COUNSEL PUNISHABLE FOR CONTEMPT OF COURT FOR KNOWINGLY MISLEADING
THIS HONORABLE COURT?

3. WAS THE ALLEGED SERVICE OF SUMMONS ON THE ILLITERATE MAID EFFECTIVE TO CONFER JURISDICTION OVER
THE DEFENDANT BEFORE THE RTC OF MALOLOS, BULACAN?

4. ASSUMING FOR THE SAKE OF ARGUMENT THAT THE SERVICE OF SUMMONS WAS VALID, WAS THE ORDER
DECLARING THE DEFENDANT IN DEFAULT RENDERED WITH GRAVE ABUSE OF DISCRETION?

5. WAS THE ORDER DENYING THE MOTION TO LIFT AND SET ASIDE THE ORDER OF DEFAULT RENDERED WITH GRAVE
ABUSE OF DISCRETION?

6. IS THE PETITIONER GUILTY OF FORUM SHOPPING?

7. WILL THIS HONORABLE COURT ALLOW THE NULL AND VOID DECEMBER 3, 2002 DECISION OF THE RTC TO BECOME
FINAL AND EXECUTORY AND OBLITERATE THE CRIMINAL ACT OF FALSIFICATION, THEREBY REWARDING THE
AUTHOR OF THE CRIMINAL OFFENSE?

In addressing the above issues, the respondent argues that the CA decision became final by operation of law because the present petition
is null and void for being a violation of the provisions of Republic Act No. 6712, in relation to Article 5 of the Civil Code, the counsel for petitioner having
filed a Motion for Extension of Time to File Petition for Review and, thereafter, the Petition for Review itself. She also claims that there was no proper
service of summons as the maid who was purportedly served a copy thereof was illiterate and has denied being served in a sworn statement executed
before a notary public and, thus, the RTC never acquired jurisdiction over her person. According to her, assuming that the summons were indeed
served, the RTC was guilty of grave abuse of discretion for declaring her in default and for refusing to lift the order of default because it deprived her
of her right to present evidence in support of her defense. She further disputes the argument of the petitioner that the Decision dated December 3,
2002 became final because it did not become the subject of appeal by stating that the said principle can only be applied to valid judgments that were
rendered in accordance with law and not to void judgments rendered without jurisdiction or in excess thereof. In addition, she avers that petitioner
made a deliberate and malicious concealment of the fact that at the time he filed the case for specific performance, as well as during the time it was
being heard, he was already being investigated in administrative proceedings before the National Bureau of Investigation, the Department of Justice
and the Municipal Trial Court of Malolos, Bulacan, Branch 2, involving the same subject matter, issues and parties; hence, he violated the law against
forum shopping. Lastly, respondent points out that the CA Decision dated June 29, 2005 is a permanent injunction against the implementation of the
contested Orders and Decisions of the RTC; therefore, there is an urgent necessity to enforce the said judgment.

On June 30, 2008, this Court granted[20] the substitution of the respondent by his heirs as represented by his wife Zenaida Pascual, after the
Manifestation[21] dated June 12, 2008 was filed informing this Court of the demise of the same respondent.

After a careful study of the records of this case, this Court finds the petition bereft of any merit.

Clearly, the main, if not the only issue that needs to be resolved is whether or not there was a proper and valid substituted service of
summons, the resolution of which, will determine whether jurisdiction was indeed acquired by the trial court over the person of the petitioner.
In a case where the action is in personam and the defendant is in the Philippines, the service of summons may be done by personal or
substituted service as laid out in Sections 6 and 7 of Rule 14 of the Revised Rules of Court. The provisions state:
Section 6. Service in person on defendant. - Whenever practicable, the summons shall be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable time as
provided in the preceding section, 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 defendants office or regular place
of business with some competent person in charge thereof.

A plain and simple reading of the above provisions indicates that personal service of summons should and always be the first option, and it
is only when the said summons cannot be served within a reasonable time can the process server resort to substituted service.

This Court gave an in-depth discussion as to the nature and requisites of substituted service in Manotoc v. Court of Appeals, et al.:[22]

We can break down this section into the following 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.[23] 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. Reasonable 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. [24] 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.[25] What then is a reasonable time for the sheriff to effect a
personal service in order to demonstrate impossibility of prompt service? To the plaintiff, reasonable time means no more than
seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. 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 Sheriffs 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. 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. Thus, they are enjoined to try their best efforts
to accomplish personal service on defendant. 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.
Several attempts means at least three (3) tries, preferably on at least two different dates. 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.[26] 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 Sheriffs 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.[27] 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 defendants house or residence, it should be left with a person of suitable age
and discretion then residing therein.[28] 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.[29] 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 recipients 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 defendants 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.

Petitioner contends that there was a valid substituted service of summons as shown in not one, but three Officer's Return. He points out that
the absence in the officer's return of a statement about the impossibility of personal service does not conclusively prove that the service was invalid. He
adds that proof of prior attempts to serve personally can be deduced from the other returns when there are several in a series of officer's returns all
tending to establish the impossibility of personal service upon the respondent. However, the said argument of the petitioner is merely a plain deduction
that veers away from the well-established requisite that the officer must show that the defendant cannot be served promptly, or that there was an
impossibility of prompt service. A cursory reading of the three Officer's Returns does not show any compliance with the said requisite. The Return of
Service dated May 21, 2002 inadequately states that:
xxxx

At the time of service of the said summons, the defendant was not at her home and only her maid was there who refused
to receive the said summons [in spite] of the insistence of the undersigned.

The undersigned, upon his request with the Brgy. Clerk at the said place, was given a certification that he really exerted
effort to effect the service of the said summons but failed due to the above reason. (Annex A).

The following day, May 21, 2002, the undersigned went back at defendant's residence to have her receive the subject
summons but again the above defendant was not at her house.

xxxx

Similarly, in the Return of Service dated May 30, 2002, pertinent details were wanting, as it reads:

xxxx

The undersigned accompanied by the barangay officials of the said place proceeded at defendant's residence but the
undersigned was not permitted to go inside her house and was given information by her maid that the defendant was not there.

The defendant's car was parked inside her house and inquiries/verification made on her neighbors revealed that the
defendant was inside her house at the time of service of said summons and probably did not want to show-up when her maid
informed her of undersigned's presence.

xxxx

Lastly, the Return of Service dated August 14, 2002 was no different. It reads:
xxxx
Defendant Dr. Lourdes Pascual was out during the time of service of the said summons and only her housemaid was
present. The undersigned left a copy of the same to the latter who is at the age of reason but refused to sign the same.

xxxx

The above Return of Summons does not show or indicate the actual exertion or any positive steps taken by the officer or process server in
serving the summons personally to the defendant. As in Jose v. Boyon,[30] this Court ruled that:

The Return of Summons shows no effort was actually exerted and no positive step taken by either the process server or
petitioners to locate and serve the summons personally on respondents. At best, the Return merely states the alleged whereabouts
of respondents without indicating that such information was verified from a person who had knowledge thereof. Certainly, without
specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such
efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.

The necessity of stating in the process server's Return or Proof of Service the material facts and circumstances sustaining
the validity of substituted service was explained by this Court in Hamilton v. Levy,[31] from which we quote:

x x x The pertinent facts and circumstances attendant to the service of summons must be stated in
the proof of service or Officer's Return; otherwise, any substituted service made in lieu of personal service
cannot be upheld. This is necessary because substituted service is in derogation of the usual method of
service. It is a method extraordinary in character and, hence, may be used only as prescribed and in the
circumstances authorized by statute. Here, no such explanation was made. Failure to faithfully, strictly, and
fully comply with the requirements of substituted service renders said service ineffective. [32]

Petitioner further states that the presumption of regularity in the performance of official functions must be applied to the present case. He
expounds on the fact that as between the process server's return of substituted service, which carries with it the presumption of regularity and the
respondent's self-serving assertion that she only came to know of the case against her when she received a copy of the petitioner's motion to declare
her in default, the process server's return is undoubtedly more deserving of credit. The said argument, however, is only meritorious, provided that there
was a strict compliance with the procedure for serving a summons. In the absence of even the barest compliance with the procedure for a
substituted service of summons outlined in the Rules of Court, the presumption of regularity in the performance of public functions does not apply. [33]

Applying the above disquisitions, the jurisdiction over the person of the respondent was never vested with the RTC, because the manner of
substituted service by the process server was apparently invalid and ineffective. As such, there was a violation of due process.Jurisdiction over the
defendant is acquired either upon a valid service of summons or the defendants voluntary appearance in court. When the defendant does not voluntarily
submit to the courts 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.[34]

Petitioner also raises the issue of the impropriety of the remedy resorted to by the respondent which is the filing of a Petition
for Certiorari under Rule 65 of the Rules of Court, claiming that the said remedy is inappropriate because there are still other plain, speedy and
adequate remedies available, such as an ordinary appeal, the Decision of the RTC having attained its finality. The question, however, is whether the
said Decision has indeed attained finality. The importance of the doctrine of the finality of judgment has always been emphasized by this
Court. In Pasiona, Jr. v. Court of Appeals,[35] this Court has expounded on the said doctrine, thus:

The Court re-emphasizes the doctrine of finality of judgment. In Alcantara v. Ponce,[36] the Court, citing its much earlier
ruling in Arnedo v. Llorente,[37] stressed the importance of said doctrine, to wit:

It is true that it is the purpose and intention of the law that courts should decide all questions
submitted to them "as truth and justice require," and that it is greatly to be desired that all judgments should be
so decided; but controlling and irresistible reasons of public policy and of sound practice in the courts demand
that at the risk of occasional error, judgments of courts determining controversies submitted to them should
become final at some definite time fixed by law, or by a rule of practice recognized by law, so as to be thereafter
beyond the control even of the court which rendered them for the purpose of correcting errors of fact or of law,
into which, in the opinion of the court it may have fallen. The very purpose for which the courts are organized
is to put an end to controversy, to decide the questions submitted to the litigants, and to determine the
respective rights of the parties. With the full knowledge that courts are not infallible, the litigants submit their
respective claims for judgment, and they have a right at some time or other to have final judgment on which
they can rely as a final disposition of the issue submitted, and to know that there is an end to the litigation.[38]

Then, in Juani v. Alarcon,[39] it was held, thus:

This doctrine of finality of judgment is grounded on fundamental considerations of public policy and
sound practice. In fact, nothing is more settled in law than that once a judgment attains finality it thereby
becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the
modification is attempted to be made by the court rendering it or by the highest court of the land. [40]

Again, in Dinglasan v. Court of Appeals,[41] the Court declared that:


After the judgment or final resolution is entered in the entries of judgment, the case shall be laid to rest. x x x

xxxx

The finality of decision is a jurisdictional event which cannot be made to depend on the convenience
of the party. To rule otherwise would completely negate the purpose of the rule on completeness of service,
which is to place the date of receipt of pleadings, judgment and processes beyond the power of the party being
served to determine at his pleasure.[42]

The said doctrine, however, is applicable only when the judgment or decision is valid. In the present case, as earlier pronounced, and as
ruled by the CA, the judgment in question is void, the RTC not having acquired jurisdiction over the person of the respondent. It is a well-entrenched
principle that a void judgment can never become final. As ruled by this Court in Metropolitan Bank & Trust Company v. Alejo:[43]

In Leonor v. Court of Appeals[44] and Arcelona v. Court of Appeals,[45] we held thus:

A void judgment for want of jurisdiction is no judgment at all. It cannot be the source of any right nor
the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal
effect. Hence, it can never become final and any writ of execution based on it is void: x x x it may be said to be
a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it
exhibits its head.

Thus, from the above discussion, the Decision of the RTC, not having attained its finality due to its being void, the Petition for Certiorari under Rule 65,
filed by the respondent with the CA, was proper.

WHEREFORE, the Petition dated May 3, 2006 is hereby DENIED and the Decision dated June 29, 2005 of the Court of Appeals in CA-G.R. SP No.
77789 is hereby AFFIRMED in toto.

SO ORDERED.
RULE 14 SECTION 15

VICTORIA REGNER, G.R. No. 168747


Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO, NACHURA, and
REYES, JJ.

CYNTHIA R. LOGARTA, TERESA R. TORMIS and Promulgated:


CEBU COUNTRY CLUB, Inc.,
Respondents. October 19, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

This Petition for Review on Certiorari seeks to reverse the Decision[1] dated 6 May 2005 of the Court of Appeals in CA-G.R. CV No. 71028
entitled, Victoria Regner v. Cynthia Logarta, Teresa R. Tormis and Cebu Country Club, Inc., which affirmed the Order dated 9 November 2000 of the
Regional Trial Court (RTC) of Cebu, granting herein respondents motion to dismiss Civil Case No. CEB 23927. The Order dated 9 November 2000 of
the RTC dismissed herein petitioners complaint for declaration of nullity of a deed of donation, for failure to serve summons on Cynthia Logarta, an
indispensable party therein.

Civil Case No. CEB. 23927 arose from the following factual antecedents:

Luis Regner (Luis) had three daughters with his first wife, Anicita C. Regner, namely, Cynthia Logarta (Cynthia) and Teresa Tormis (Teresa),
the respondents herein, and Melinda Regner-Borja (Melinda).

Herein petitioner Victoria Regner (Victoria) is the second wife of Luis.

During the lifetime of Luis, he acquired several properties, among which is a share at Cebu Country Club Inc., evidenced by Proprietary Ownership
Certificate No. 0272. On 15 May 1998, Luis executed a Deed[2] of Donation in favor of respondents Cynthia and Teresa covering Proprietary Ownership
Certificate No. 0272 of the Cebu Country Club, Inc.

Luis passed away on 11 February 1999.


On 15 June 1999, Victoria filed a Complaint[3] for Declaration of Nullity of the Deed of Donation with Prayer for Issuance of a Writ of
Preliminary Injunction and Temporary Restraining Order against Cynthia and Teresa with the RTC, docketed as Civil Case No. CEB. 23927. Victoria
alleged in her complaint that: on 17 March 1997, Luis made a written declaration wherein he stated that due to his illness and forgetfulness, he would
not sign any document without the knowledge of his lawyer, Atty. Francis Zosa; on 15 May 1998, when Luis was already very ill and no longer of sound
and disposing mind, Cynthia and Teresa , conspiring and confederating with each other, fraudulently made or caused to be fraudulently made a Deed
of Donation whereby they made it appear that Luis donated to them Proprietary Ownership Certificate No. 0272; since Luis no longer had the ability to
write or affix his signature, Melinda, acting under the influence of her sisters, Cynthia and Teresa, fraudulently manipulated the hand of Luis so that he
could affix his thumbmark on the assailed Deed of Donation; on 8 February 1998, or three days before the death of Luis, and when he was already
in comatose condition at the Cebu Doctors Hospital, Melinda, Teresa, and Cynthia caused the preparation of an affidavit to the effect that Luis affirmed
the Deed of Donation he allegedly executed earlier by lifting his hand to affix his thumbmark on the said affidavit.

Sheriff Melchor A. Solon served the summonses on Cynthia and Teresa at the Borja Family Clinic in Tagbilaran City wherein Melinda worked
as a doctor, but Melinda refused to receive the summonses for her sisters and informed the sheriff that their lawyer, Atty. Francis Zosa, would be the
one to receive the same.

Upon her arrival in the Philippines, on 1 June 2000, Teresa was personally served the summons at Room 304, Regency Crest Condominium,
Banilad, Cebu City. She filed her Answer[4] with counterclaim with the RTC on 6 June 2000.

Subsequently, on 12 September 2002, Teresa filed a motion to dismiss Civil Case No. CEB 23927 because of petitioners failure to prosecute
her action for an unreasonable length of time.

Petitioner opposed[5] the motion and filed her own motion to set the case for pre-trial, to which Teresa filed her rejoinder on the ground that
their sister, Cynthia, an indispensable party, had not yet been served a summons. Thus, Teresa prayed for the dismissal of petitioners complaint, as
the case would not proceed without Cynthias presence.

On 9 November 2000, the RTC issued an Order[6] granting respondent Teresas motion to dismiss, pertinent portions of which read:

Considering that the donees in the Deed of Donation are Cynthia R. Logarta and Teresa R. Tormis, they are therefore
an (sic) indispensable party (sic). In the case of Quisumbing vs. Court of Appeals, 189 SCRA 325, indispensable parties are those
with such an interest in the controversy that a final decree would necessarily affect their rights so that the court could not proceed
without their presence

Wherefore, in view of the foregoing, the instant case is hereby dismissed without prejudice.

A motion for reconsideration was filed by petitioner, but the same was denied in an Order dated 14 February 2001.

Aggrieved, petitioner appealed to the Court of Appeals. On 6 May 2005, the Court of Appeals rendered a Decision denying the appeal and affirming in
toto the order of dismissal of the complaint by the RTC and the denial of the motion for reconsideration thereof. The Court of Appeals ratiocinated that
petitioners failure to move for an extraterritorial service of summons constitutes failure to prosecute for an unreasonable length of time, thus:

[T]he plaintiff-appellant [Victoria Regner] should have moved for the extraterritorial service of summons for both defendants-
appellees Teresa R. Tormis and Cynthia R. Logarta as they were not residing and were not found in the Philippines when plaintiff-
appellant [Victoria Regner] filed this case below. Although defendant-appellant Teresa Tormis was personally served with
summons on June 1, 2000 when she came to the Philippines but the same was only effected after a long wait or after the lapse of
almost one year from the date the complaint was filed on June 15, 1999. To allow this practice would be to make the continuation
of like proceedings before the courts dependent on when the defendants would be personally served with summons by the time
they would come to the Philippines, which would only unnecessarily delay the proceedings and clog the court dockets as well. The
afore-cited rule was precisely crafted to meet situations similar to the present case to avoid unnecessary delays.
It has to be emphasized that it is incumbent upon the plaintiff [Victoria Regner] to move with leave of court for the extraterritorial
service of summons. Taking into account the considerable time that had elapsed from the filing of the complaint on June 15, 1999
until defendant-appellee Teresa R. Tormis, through counsel, filed a motion to dismiss on September 12, 2000, or approximately
fifteen (15) months, without any act on the part of plaintiff-appellant [Victoria Regner] to move for extraterritorial service of summons
upon the person of defendant-appellee Cynthia Logarta renders plaintiff-appellants [Victoria Regner] complaint dismissible for
failure to prosecute her action for unreasonable length of time under Section 3, Rule 17, Revised Rules of Court, x x x.[7]

Hence, this appeal via petition[8] for review on certiorari filed by petitioner raising the following assignment of errors:
THE COURT OF APPEALS ERRED IN HOLDING THAT THE DELAY IN SERVING SUMMONS ON ONE OF THE DEFENDANTS
CONSTITUTES A FAILURE TO PROSECUTE NOTWITHSTANDING THAT THE REST OF THE CO-DEFENDANTS WERE DULY
SERVED WITH SUMMONSES

THE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT THE ANSWER FILED BY ONE INDIVIDUAL DEFENDANT
REDOUNDS TO THE BENEFIT OF THE OTHER DEFENDANT WHO HAS NOT BEEN SERVED WITH SUMMONS, THE
NATURE OF ACTION BEING ADMITTEDLY COMMON AMONG ALL DEFENDANTS. [9]

From the foregoing, this Court identifies the issues to be resolved in this petition as: (1) Whether a co-donee is an indispensable party in an
action to declare the nullity of the deed of donation, and (2) whether delay in the service of summons upon one of the defendants constitutes failure to
prosecute that would warrant dismissal of the complaint.

A Court must acquire jurisdiction over the persons of indispensable parties before it can validly pronounce judgments personal to the
parties. Courts acquire jurisdiction over a party plaintiff upon the filing of the complaint. On the other hand, jurisdiction over the person of a party
defendant is assured upon the service of summons in the manner required by law or otherwise by his voluntary appearance. As a rule, if a defendant
has not been summoned, the court acquires no jurisdiction over his person, and a personal judgment rendered against such defendant is null and
void.[10] A decision that is null and void for want of jurisdiction on the part of the trial court is not a decision in the contemplation of law and, hence, it
can never become final and executory.[11]

Rule 3, Section 7 of the Rules of Court, defines indispensable parties as parties-in-interest without whom there can be no final determination
of an action. As such, they must be joined either as plaintiffs or as defendants. The general rule with reference to the making of parties in a civil action
requires, of course, the joinder of all necessary parties where possible, and the joinder of all indispensable parties under any and all conditions, their
presence being a sine qua non for the exercise of judicial power.[12] It is precisely when an indispensable party is not before the court [that] the action
should be dismissed.[13] The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act,
not only as to the absent parties but even as to those present.[14]

As we ruled in Alberto v. Mananghala[15]:

In an action for recovery of property against a person who purchased it from another who in turn acquired it from others by the
same means or by donation or otherwise, the predecessors of defendants are indispensable parties if the transfers, if not voided,
may bind plaintiff. (Garcia vs. Reyes, 17 Phil. 127.) In the latter case, this Court held:

In order to bring this suit duly to a close, it is imperative to determine the only question raised in connection with the
pending appeal, to wit, whether all the persons who intervened in the matter of the transfers and donation herein referred to, are
or are not necessary parties to this suit, since it is asked in the complaint that the said transfers and donation be declared null and
void an indispensable declaration for the purpose, in a proper case, of concluding the plaintiff to be the sole owner of the house in
dispute.

If such a declaration of annulment can directly affect the persons who made and who were concerned in the said
transfers, nothing could be more proper and just than to hear them in the litigation, as parties interested in maintaining the validity
of those transactions, and therefore, whatever be the nature of the judgment rendered, Francisco Reyes, Dolores Carvajal, Alfredo
Chicote, Vicente Miranda, and Rafael Sierra, besides the said minors, must be included in the case as defendants. (Garcia vs.
Reyes, 17 Phil., 130-131.)

It takes no great degree of legal sophistication to realize that Cynthia and Teresa are indispensable parties to Civil Case No. CEB
23927. Cynthia and Teresa allegedly derived their rights to the subject property by way of donation from their father Luis. The central thrust of the
petitioners complaint in Civil Case No. CEB 23927 was that Luis could not have donated Proprietary Ownership Certificate No. 0272 to his daughters
Cynthia and Teresa, as Luis was already very ill and no longer of sound and disposing mind at the time of donation on 15 May 1997. Accordingly, the
prayer in petitioners complaint was for the trial court to declare null and void the Deed of Donation and to restrain the Cebu Country Club, Inc. from
transferring title and ownership of Proprietary Ownership Certificate No. 0272 to Cynthia and Teresa.
Thus, based on the Deed of Donation, Teresa and Cynthia are co-owners of Proprietary Membership Certificate No. 0272 of Cebu Country
Club, Inc. The country club membership certificate is undivided and it is impossible to pinpoint which specific portion of the property belongs to either
Teresa or Cynthia. Indeed, both Teresa and Cynthia are indispensable parties in Civil Case No. CEB 23927.

An indispensable party has been defined as follows:

An indispensable party is a party who has such an interest in the controversy or subject matter that a final adjudication cannot be
made, in his absence, without injuring or affecting that interest, a party who has not only an interest in the subject matter of the
controversy, but also has an interest of such nature that a final decree cannot be made without affecting his interest or leaving the
controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. It has also
been considered that an indispensable party is a person in whose absence there cannot be a determination between the parties
already before the court which is effective, complete, or equitable. Further, an indispensable party is one who must be included in
an action before it may properly go forward.
A person is not an indispensable party, however, if his interest in the controversy or subject matter is separable from the
interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does complete justice
between them. Also, a person is not an indispensable party if his presence would merely permit complete relief between him and
those already parties to the action, or if he has no interest in the subject matter of the action. It is not a sufficient reason to declare
a person to be an indispensable party that his presence will avoid multiple litigation. [16]

In Servicewide Specialists, Incorporated v. Court of Appeals,[17] this Court held that no final determination of a case could be made if an
indispensable party is not legally present therein:

An indispensable party is one whose interest will be affected by the courts action in the litigation, and without whom no final
determination of the case can be had. The partys interest in the subject matter of the suit and in the relief sought are so inextricably
intertwined with the other parties that his legal presence as a party to the proceeding is an absolute necessity. In his absence there
cannot be a resolution of the dispute of the parties before the court which is effective, complete, or equitable.

The rationale for treating all the co-owners of a property as indispensable parties in a suit involving the co-owned property is explained
in Arcelona v. Court of Appeals[18]:

As held by the Supreme Court, were the courts to permit an action in ejectment to be maintained by a person having merely an
undivided interest in any given tract of land, a judgment in favor of the defendants would not be conclusive as against the other
co-owners not parties to the suit, and thus the defendant in possession of the property might be harassed by as many succeeding
actions of ejectment, as there might be co-owners of the title asserted against him. The purpose of this provision was to prevent
multiplicity of suits by requiring the person asserting a right against the defendant to include with him, either as co-plaintiffs or as
co-defendants, all persons standing in the same position, so that the whole matter in dispute may be determined once and for all
in one litigation.

Applying the foregoing definitions and principles to the present case, this Court finds that any decision in Civil Case No. CEB 23927 cannot
bind Cynthia, and the Court cannot nullify the donation of the property she now co-owns with Teresa, even if limited only to the portion belonging to
Teresa, to whom summons was properly served, since ownership of the property is still pro indiviso. Obviously, Cynthia is an indispensable party in
Civil Case No. CEB 23927 without whom the lower court is barred from making a final adjudication as to the validity of the entire donation. Without the
presence of indispensable parties to a suit or proceeding, a judgment therein cannot attain finality. [19]

Being an indispensable party in Civil Case No. CEB 23927, the trial court must also acquire jurisdiction over Cynthias person through the proper

service of summons.

Based on the foregoing disquisitions, the issue of whether the answer filed by Teresa should benefit Cynthia who was not served summons need not

be discussed.
As to determine whether Cynthia was properly served a summons, it will be helpful to determine first the nature of the action filed against Cynthia and
Teresa by petitioner Victoria, whether it is an action in personam, in rem or quasi in rem. This is because the rules on service of summons embodied
in Rule 14 apply according to whether an action is one or the other of these actions.
In a personal action, the plaintiff seeks the recovery of personal property, the enforcement of a contract or the recovery of damages.[20] In
contrast, in a real action, the plaintiff seeks the recovery of real property; or, as indicated in Section 2(a), Rule 4 of the then Rules of Court, a real
action is an action affecting title to real property or for the recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on,
real property. An action in personam is an action against a person on the basis of his personal liability, while an action in rem is an action against the
thing itself, instead of against the person.[21]

In an action in personam, personal service of summons or, if this is not possible and he cannot be personally served, substituted service, as
provided in Section 7, Rule 14 of the Rules of Court,[22] is essential for the acquisition by the court of jurisdiction over the person of a defendant who
does not voluntarily submit himself to the authority of the court.[23] If defendant cannot be served a summons because he is temporarily abroad, but is
otherwise a Philippine resident, service of summons may, by leave of court, be made by publication.[24]Otherwise stated, a resident defendant in an
action in personam, who cannot be personally served a summons, may be summoned either by means of substituted service in accordance with
Section 7, Rule 14 of the Rules of Court, or by publication as provided in Sections 15 and 16 of the same Rule.
In all of these cases, it should be noted, defendant must be a resident of the Philippines; otherwise an action in personam cannot be brought because
jurisdiction over his person is essential to make a binding decision.
On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction
so long as the court acquires jurisdiction over the res. If the defendant is a nonresident and he is not found in the country, summons may be served
extraterritorially in accordance with Section 15, Rule 14 of the Rules of Court, which provides:

Section 15. Extraterritorial service. - When the defendant does not reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by publication in a newspaper
of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of
the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem
sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice,
within which the defendant must answer.

As stated above, there are only four instances wherein a defendant who is a non-resident and is not found in the country may be served a
summons by extraterritorial service, to wit: (1) when the action affects the personal status of the plaintiff; (2) when the action relates to, or the subject
of which is property within the Philippines, on which the defendant claims a lien or an interest, actual or contingent; (3) when the relief demanded in
such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when the defendant
non-residents property has been attached within the Philippines. In these instances, service of summons may be effected by (a) personal service out
of the country, with leave of court; (b) publication, also with leave of court; or (c) any other manner the court may deem sufficient. [25]

In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res, i.e., the personal
status of the plaintiff who is domiciled in the Philippines or the property litigated or attached. Service of summons in the manner provided in Section
15, Rule 14 of the Rules of Court is not for the purpose of vesting the court with jurisdiction, but for complying with the requirements of fair play or due
process, so that the defendant will be informed of the pendency of the action against him; and the possibility that property in the Philippines belonging
to him, or in which he has an interest, might be subjected to a judgment in favor of the plaintiff and he can thereby take steps to protect his interest if
he is so minded.[26]

In petitioners Complaint in Civil Case No. CEB No. 23427, she alleged that Cynthia is residing at 462 West Vine No. 201, Glendale, California,
912041, U.S.A.; while Teresa is residing at 2408 South Hacienda Boulevard, Hacienda Heights, California, but they usually visit here in the Philippines
and can be served summonses and other processes at the Borja Family Clinic, Bohol. Pertinent portions of the Complaint read:
2. Defendant Cynthia R. Logarta is a Filipino, of legal age, married to Ramon Logarta, resident (sic) 463 West Vine No.201,
Glendale, California, 912041, USA. She however usually visits in the Philippines and can be served with summons and
other processes of this Honorable Court at Borja Family Clinic, Tagbilaran, Bohol;

3. Defendant Teresa R. Tormis is likewise a Filipino, of legal age, married to Antonio Tormis, and a resident of 2408 South Hacienda
Heights, California, 19745, U.S.A. She however usually visits in the Philippines and can be served with summons and
other processes of this Honorable Court at Borja Family Clinic, Tagbilaran, Bohol.[27]

Petitioner prayed for a declaration of nullity of the deed of donation, to restrain Cebu Country Club, Inc. from transferring title and ownership of
Proprietary Ownership Certificate No. 0272 to Cynthia and Teresa, and for moral and exemplary damages. Civil Case No. CEB 23927 is evidently an
action against Cynthia and Teresa on the basis of their personal liability for the alleged fraudulent transfer of the subject Country Club membership
from Luis to their name. In this sense, petitioner questions the participation and shares of Cynthia and Teresa in the transferred Country Club
membership. Moreover, the membership certificate from the Cebu Country Club, Inc. is a personal property. Thus, the action instituted by petitioner
before the RTC is in personam.

Being an action in personam, the general rule requires the personal service of summons on Cynthia within the Philippines, but this is not
possible in the present case because Cynthia is a non-resident and is not found within the Philippines.

As Cynthia is a nonresident who is not found in the Philippines, service of summons on her must be in accordance with Section 15, Rule 14
of the Rules of Court. Such service, to be effective outside the Philippines, must be made either (1) by personal service; (2) by publication in a
newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court
should be sent by registered mail to the last known address of the defendant; or (3) in any other manner which the court may deem sufficient. The third
mode, like the first two, must be made outside the Philippines, such as through the Philippine Embassy in the foreign country where Cynthia resides.

Since in the case at bar, the service of summons upon Cynthia was not done by any of the authorized modes, the trial court was correct in
dismissing petitioners complaint.

Section 3, Rule 17 of the 1997 Rules of Civil Procedure, states

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.

As can be gleaned from the rule, there are three instances when the complaint may be dismissed due to the plaintiff's fault: (1) if he fails to
appear during a scheduled trial, especially on the date for the presentation of his evidence in chief; (2) if he fails to prosecute his action for an
unreasonable length of time; and (3) if he fails to comply with the rules or any order of the court. [28]

Considering the circumstances of the case, it can be concluded that the petitioner failed to prosecute the case for an unreasonable length of
time. There is failure to prosecute when the plaintiff, being present, is not ready or is unwilling to proceed with the scheduled trial or when
postponements in the past were due to the plaintiff's own making, intended to be dilatory or caused substantial prejudice on the part of the defendant.[29]

While a court can dismiss a case on the ground of failure to prosecute, the true test for the exercise of such power is whether, under the
prevailing circumstances, the plaintiff is culpable for want of due diligence in failing to proceed with reasonable promptitude.[30] As to what constitutes
an unreasonable length of time, within the purview of the above-quoted provision, the Court has ruled that it depends upon the circumstances of each
particular case, and that the sound discretion of the court in the determination of said question will not be disturbed, in the absence of patent abuse;
and that the burden of showing abuse of judicial discretion is upon the appellant since every presumption is in favor of the correctness of the court's
action.[31] Likewise, the concept of promptness is a relative term and must not unnecessarily be an inflexible one. It connotes an action without
hesitation and loss of time. As to what constitutes the term is addressed to the consideration of the trial court, bearing in mind that while actions must
be disposed of with dispatch, the essential ingredient is the administration of justice and not mere speed. [32]

It is well to quote the doctrine laid in Padua v. Ericta,[33] as accentuated in the subsequent case Marahay v. Melicor[34]:

Courts should not brook undue delays in the ventilation and determination of causes. It should be their constant effort to assure
that litigations are prosecuted and resolved with dispatch. Postponements of trials and hearings should not be allowed except on
meritorious grounds; and the grant or refusal thereof rests entirely in the sound discretion of the Judge. It goes without saying,
however, that discretion must be reasonably and wisely exercised, in the light of the attendant circumstances. Some reasonable
deferment of the proceedings may be allowed or tolerated to the end that cases may be adjudged only after full and free
presentation of evidence by all the parties, especially where the deferment would cause no substantial prejudice to any part. The
desideratum of a speedy disposition of cases should not, if at all possible, result in the precipitate loss of a partys right to present
evidence and either in plaintiff's being non-suited or the defendant's being pronounced liable under an ex parte judgment.

[T]rial courts have x x x the duty to dispose of controversies after trial on the merits whenever possible. It is deemed an abuse of
discretion for them, on their own motion, to enter a dismissal which is not warranted by the circumstances of the case (Municipality
of Dingras v. Bonoan, 85 Phil. 458-59 [1950]). While it is true that the dismissal of an action on grounds specified under Section
3, Rule 17 of the Revised Rules of Court is addressed to their discretion (Flores v. Phil. Alien Property Administrator, 107 Phil. 778
[1960]; Montelibano v. Benares, 103 Phil. 110 [1958]; Adorable v. Bonifacio, 105 Phil. 1269 [1959]; Inter-Island Gas Service, Inc.
v. De la Gerna, L-17631, October 19, 1966, 18 SCRA 390), such discretion must be exercised soundly with a view to the
circumstances surrounding each particular case (Vernus-Sanciangco v. Sanciangco, L-12619, April 28, 1962, 4 SCRA 1209). If
facts obtain that serve as mitigating circumstances for the delay, the same should be considered and dismissal denied or set aside
(Rudd v. Rogerson, 15 ALR 2d 672; Cervi v. Greenwood, 147 Colo. 190, 362 P.2d 1050 [1961]), especially where the suit appears
to be meritorious and the plaintiff was not culpably negligent and no injury results to defendant (27 C.J.S. 235-36; 15 ALR 3rd 680).
(Abinales vs. Court of First Instance of Zamboanga City, Br. I, 70 SCRA 590, 595).

It is true that the allowance or denial of petitions for postponement and the setting aside of orders previously issued, rest principally
upon the sound discretion of the judge to whom they are addressed, but always predicated on the consideration that more than
the mere convenience of the courts or of the parties of the case, the ends of justice and fairness would be served thereby (Camara
Vda. de Zubiri v. Zubiri, et al., L-16745, December 17, 1966). When no substantial rights are affected and the intention to delay is
not manifest, the corresponding motion to transfer the hearing having been filed accordingly, it is sound judicial discretion to allow
them (Rexwell Corp. v. Canlas, L-16746, December 30, 1961). x x x.

This Court recalls that the complaint herein was filed on 15 June 1999. The summonses for Cynthia and Teresa were served on their sister
Melinda at the Borja Family Clinic in Tagbilaran City, but the latter refused to receive the same. It was only on 1 June 2000 that summons was served
on Teresa at Room 304, Regency Crest Condominium, Banilad, Cebu City, when she was in the Philippines for a visit. However, the summons for
Cynthia was never served upon her.

Although Section 1, Rule 14 of the Rules, imposes upon the clerk of court the duty to serve summons, this does not relieve the petitioner of
her own duty as the plaintiff in a civil case to prosecute the case diligently. If the clerk had been negligent, it was petitioners duty to call the courts
attention to that fact. It must be noted that it was not even petitioner who called the courts attention that summons had not been served on Cynthia,
but Teresa. This despite the fact that petitioner was aware, as early as 15 June 1999, when she filed her complaint, that the summonses could not be
served on Teresa and Cynthia, as she admitted therein that Teresa and Cynthia were residing abroad. Petitioner as plaintiff should have asked that
Cynthia and Teresa be summoned by publication at the earliest possible time. She cannot idly sit by and wait till this is done. She cannot afterwards
wash her hands and say that the delay was not her fault. She cannot simply "fold [her] hands" and say that it is the duty of the clerk of court to have
the summonses served on Cynthia and Teresa for the prompt disposition of her case. If there were no means of summoning any of the defendants,
petitioner should have so informed the court within a reasonable period of time, so that the case could be disposed of one way or another and the
administration of justice would not suffer delay. The non-performance of that duty by petitioner as plaintiff is an express ground for dismissing an
action. For, indeed, this duty imposed upon her was precisely to spur on the slothful.
For failure to diligently pursue the complaint, petitioner trifled with the right of the respondents to speedy trial. It also sorely tried the patience
of the court and wasted its precious time and attention. To allow petitioner to wait until such time that summonses were served on respondents would
frustrate the protection against unreasonable delay in the prosecution of cases and violate the constitutional mandate of speedy dispensation of justice
which would in time erode the peoples confidence in the judiciary. We take a dim view of petitioners complacent attitude. Ex nihilo nihil fit.[35]

Likewise, petitioners counsel inexplicably failed to diligently pursue the service of summonses on respondents. These were acts of
negligence, laxity and truancy which the court could have very easily avoided or timely remedied. Petitioner and her counsel could not avail themselves
of this Courts sympathy, considering their apparent complacency, if not delinquency, in the conduct of their litigation.

Considering the foregoing, we sustain the dismissal by the trial court of the petitioners complaint for failure to prosecute for a period of more
than one year (from the time of filing thereof on 15 June 1997 until Teresas filing of a motion to dismiss).

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit and the assailed Decision dated 6 May 2005 of the Court
of Appeals in CA-G.R. CV No. 71028 is hereby AFFIRMED. Costs against petitioner.

SO ORDERED.