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CIVIL PROCEDURE RULE 7-9 FULL TEXT

G.R. No. L-28140 March 19, 1970 practicable, setting forth the substance of the matters which he
will rely upon to support his denial or (2) by specifying so much
CAPITOL MOTORS CORPORATIONS, plaintiff-appellee, of an averment in the complaint as is true and material and
vs. denying only the remainder or (3) by stating that the defendant
NEMESIO I. YABUT, defendant-appellant. is without knowledge or information sufficient to form a belief as
to the truth of a material averment in the complaint, which has
the effect of a denial, and he has adopted the third mode of
VILLAMOR, J.:
specific denial, his answer tendered an issue, and, consequently
the court a quo could not render a valid judgment on the
Appeal on a question of law from the judgment of the Court of pleadings.
First Instance of Rizal in its Civil Case. No. Q-9869.
This appeal is without merit.
On March 1, 1966, Capitol Motors Corporations filed a complaint
against Nemesio I. Yabut. It was therein averred that on April 24,
We agree with defendant-appellant that one of the modes of
1965, the defendant executed in favor of the plaintiff a
specific denial contemplated in Section 10, Rule 8, is a denial by
promissory note (copy of which was attached to the complaint)
stating that the defendant is without knowledge or information
for the sum of P30,134.25, payable in eighteen (18) equal
sufficient to form a belief as to the truth of a material averment in
monthly installments with interest at 12% per annum, the first
the complaint. The question, however, is whether paragraph 2 of
installment to become due on June 10, 1965, that it was
defendant-appellant's answer constitutes a specific denial under
stipulated in the promissory note that should the defendant fail
the said rule. We do not think so. In Warner Barnes & Co., Ltd.
to pay two (2) successive installments, the principal sum
vs. Reyes, et al., G.R. No. L-9531, May 14, 1958 (103 Phil.,
remaining unpaid would immediately become due and
662), this Court said that the rule authorizing an answer to the
demandable and the defendant would, by way of attorney's fees
effect that the defendant has no knowledge or information
and costs of collection, be obligated to the plaintiff for an
sufficient to form a belief as to the truth of an averment and
additional sum equivalent to 25% of the principal and interest
giving such answer the effect of a denial, does not apply where
due; that as of February 23, 1966, the sum remaining unpaid on
the fact as to which want of knowledge is asserted, is so plainly
the promissory note was P30,754.79, including accrued interest;
and necessarily within the defendant's knowledge that his
that the defendant defaulted in the payment of two (2)
averment of ignorance must be palpably untrue. In said case the
successive installments, and likewise failed to pay the interest
suit was one for foreclosure of mortgage, and a copy of the
due on the promissory note; and that in spite of demands by the
deed of mortgage was attached to the complaint; thus,
plaintiff, the defendant failed and refused to pay the said
according to this Court, it would have been easy for the
principal sum and interest due. Prayer was made that the
defendants to specifically allege in their answer whether or not
defendant be ordered to pay the plaintiff the sum of P30,754.79,
they had executed the alleged mortgage. The same thing can be
as well as the interest due thereon from February 23, 1966, and
said in the present case, where a copy of the promissory note
an additional sum equivalent to 25% of the amount due, plus
sued upon was attached to the complaint. The doctrine in
costs.
Warner Barnes & Co., Ltd. was reiterated in J. P. Juan & Sons,
Inc. vs. Lianga Industries, Inc., G.R. No. L-25137, July 28, 1969
On April 27, 1966, and within the reglementary period, the (28 SCRA 807). And in Sy-quia vs. Marsman, G.R. No. L-23426,
defendant, through his counsel, filed an answer which reads: March 1, 1968 (22 SCRA 927), this Court said:

DEFENDANT through counsel alleges: With regard to the plea of lack of knowledge or
information set up in paragraph 3 of the answer, this
1. Paragraph 1 of the complaint is admitted. Court's decision in Warner Barnes vs. Reyes, 103
Phil. 662, 665, is authority for the proposition that
2. Paragraphs 2, 3, 4, 5, 6 and 7 of the complaint are this form of denial must be availed of with sincerity
specifically denied for lack of knowledge sufficient to and good faith, not for the purpose of confusing the
form a belief as to the truth thereof. other party, nor for purposes of delay. Yet, so lacking
in sincerity and good faith is this part of the answer
that defendants-appellants go to the limit of denying
WHEREFORE, it is respectfully prayed that the
knowledge or information as to whether they
Complaint be dismissed with costs against the plaintiff.
(defendants) were in the premises (Marsman Bldg.)
on January 4, 1961, as averred in paragraph 4 of
On June 16, 1966, the plaintiff filed a motion for judgment on the the complaint. Yet whether such a fact was or was
pleadings, on the ground that the defendant, not having set forth not true could not be unknown to these defendants.
in his answer the substance of the matters relied upon by him to
support his denial, had failed to deny specifically the material
In National Marketing Corporation vs. De Castro, 106 Phil. 803
allegations of the complaint, hence, must be deemed to have
(1959), this Court held:
admitted them. The defendant did not file an opposition to the
motion. On September 13, 1966, after hearing on the motion,
the court issued an order granting the said motion and Furthermore, in his answer to the appellee's
considering the case submitted for decision on the basis of the complaint, he merely alleged that 'he has no
pleadings; and on January 9, 1967, the court rendered judgment knowledge or information sufficient to form a belief as
granting in toto the plaintiff's prayer in its complaint. to the truth of the matters contained in paragraphs 3,
4, 5 and 6 so much so that he denies specifically said
allegations.' A denial is not specific simply because it
In this appeal, defendant-appellant contends that the court a
is so qualified. (Sections 6 and 7, Rule 9; El Hogar
quo erred in considering him as having failed to deny specifically
Filipino vs. Santos Investments, Inc., 74 Phil. 79;
the material allegations of the complaint, and, consequently, in
Baetamo vs. Amador, 74 Phil. 735; Dacanay vs.
deciding the case on the basis of the pleadings. Citing Moran,
Lucero, 76 Phil. 139; Lagrimas vs. Lagrimas, 95 Phil.
Comments on the Rules of Court, Vol. I, 1963 Ed., p. 281, he
113). Material averments in a complaint, other than
argues that since Section 10, Rule 8 of the Revised Rules of
those as to the amount of damage, are deemed
Court, recognizes three (3) modes of specific denial, namely: (1)
admitted when not specifically denied. (Section 8,
by specifying each material allegation of fact in the complaint
Rule 9,) The court may render judgment upon the
the truth of which the defendant does not admit, and, whenever
pleadings if material averments in the complaint are
CIVIL PROCEDURE RULE 7-9 FULL TEXT
admitted. (Section 10, Rule 35; Baetamo vs.
Amador, supra, Lichauco vs. Guash, 76 Phil. 5; Lati
vs. Valmores, G.R. No. L-6877, 30 March 1954.)

It becomes evident from all the above doctrines that a mere


allegation of ignorance of the facts alleged in the complaint, is
insufficient to raise an issue; the defendant must aver positively
or state how it is that he is ignorant of the facts so alleged.
(Francisco, The Revised Rules of Court in the Philippines, Vol. I,
p. 417, citing Wood vs. Staniels, 3 Code Rep. 152 and Vassalt
vs. Austin, 32 Cal. 597.)

Thus, in at least two (2) cases where this Court ruled that
judgment on the pleadings was not proper, it will be seen that
the reason was that in each case the defendants did something
more than merely alleging lack of knowledge or information
sufficient to form a belief. In Arrojo vs. Caldoza, et al., G.R. No.
L-17454, July 31, 1963 (8 SCRA 547), the defendants, in their
answer to the complaint for recovery of possession of a parcel
of land, did not merely allege that they had no knowledge or
information sufficient to form a belief as to the truth of the
material allegations in the complaint, but added the following:
"The truth of the matter is that the defendants have not occupied
or taken any property belonging to the plaintiff. They took
possession and ownership only of the land belonging to them,
which properties were possessed and owned originally by their
predecessors-in-interest, who were the parents of the
defendants ...." In Benavides vs. Alabastro, G.R. No. L-19762,
December 23, 1964 (12 SCRA 553), the defendant's answer did
not only deny the material allegations of the complaints but also
set up certain special and affirmative defenses the nature of
which called for presentation of evidence.

There are two other reasons why the present appeal must fail.
First. The present action is founded upon a written instrument
attached to the complaint, but defendant-appellant failed to deny
under oath the genuineness and due execution of the
instrument; hence, the same are deemed admitted. (Section 8,
Rule 8 of the Revised Rules of Court; Songo vs. Sellner, 37 Phil.
254; Philippine Commercial & Industrial Bank vs. ELRO
Development Corporation, et al., G.R. No. L-30830, August 22,
1969 [29, SCRA 38]; J. P. Juan & Sons, Inc. vs. Lianga
Industries, Inc., supra.) Second. Defendant-appellant did not
oppose the motion for judgment on the pleadings filed by plaintiff
appellee; neither has he filed a motion for reconsideration of the
order of September 13, 1966, which deemed the case submitted
for decision on the pleadings, or of the decision rendered on
January 9, 1967. In Santiago vs. Basilan Lumber Company,
G.R. No. L-15532, October 31, 1963 (9 SCRA 349), this Court
said:

It appears that when the plaintiff moved to


have the case decided on the pleadings, the
defendant interposed no objection and has
practically assented thereto. The defendant,
therefore, is deemed to have admitted the
allegations of the complaint, so that there
was no necessity for the plaintiff to submit
evidence of his claim.

PREMISES CONSIDERED, the judgment appealed from is


affirmed, with cost against defendant-appellant.
CIVIL PROCEDURE RULE 7-9 FULL TEXT
At the pre-trial on May 12, 1975, only plaintiffs-petitioners and
their counsel were present. Consequently, defendants-private
respondents were declared in default and the plaintiff petitioners
were allowed to present their evidence ex parte. On May 21,
1975, petitioners moved that they be granted an extension of
ten (10) days from May 22, 1975 to present her evidence, which
was granted by the court a quo. The presentation of petitioners'
evidence was later continued by the trial court to June 16, 1975,
when the deposition of Annette Ferrer was submitted by
petitioners and admitted by the trial court.

On June 26, 1975, private respondents filed a motion to "set


aside the order of default and subsequent pleadings" on the
ground that "defendants' failure to appear for pre-trial was due
to accident or excusable neglect." This was opposed by
petitioners on the ground that the said pleading was not under
oath, contrary to the requirements of Sec. 3, Rule 18 of the
Rules, and that it was not accompanied by an affidavit of merit
showing that the defendants have a good defense. In view of
this, the motion of private respondents was denied by
respondent Judge on July 21, 1975. On the same date,
respondent Judge rendered judgment against private
respondents, finding that the minor Dennis Pfleider, was allowed
by his parents to operate a Ford pick-up car and because of his
reckless negligence caused the accident in question, resulting in
G.R. No. L-41767 August 23, 1978 injuries to Annette, and ordering the defendants, as a result
thereof, to pay jointly and severally the plaintiffs the following
MR. AND MRS. ROMEO FERRER and ANNETTE amounts: (1) P24,500.00 for actual expenses, hospitalization
FERRER, petitioners, and medical expenses; (2) P24,000.00 for actual expenses for
vs. the care, medicines of plaintiff Annette for helps from December
HON. VICENTE G. ERICTA, in his capacity as Presiding 31, 1970 to December 31, 1974; (3) P50,000.00 for moral
Judge of the Court of First Instance of Rizal, Quezon City, damages; (4) P10,000.00 for exemplary damages; (5)
Branch XVIII, MR. AND MRS. FRANCIS PFLEIDER and P5,000.00 for attorney's fees; and (6) costs of suit.
DENNIS PFLEIDER, respondents.
On September 1, 1975, private respondents filed a Motion for
ANTONIO, J: Reconsideration 1 of the decision and of the order denying the
motion to set aside order of default, based on the following
Mandamus to compel the immediate execution of the Decision grounds: (1) the complaint states no cause of action insofar as
of the Court of First Instance of Quezon City, Branch XVIII, Mr. and Mrs. Pfleider are concerned because it does not allege
presided over by respondent Judge, in Civil Case No. Q-19647, that at the time of the mishap, defendant Dennis Pfleider was
dated July 21, 1975. The pertinent facts are as follows: living with them, the fact being that at such time he was living
apart from them, hence, there can be no application of Article
2180 of the Civil Code, upon which parents' liability is premised;
In a complaint for damages against respondents, dated
and (2) that tile complaint shows on its face "that it was filed only
December 27, 1974 but actually filed on January 6, 1975 (Civil
on January 6, 1975, or after the lapse of MORE THAN FOUR
Case No. Q-19647), and assigned to the sala of respondent
YEARS from the date of the accident on December 31, 1970",
Judge, it was alleged that defendants Mr. and Mrs. Francis
likewise appearing from the complaint and, therefore, the action
Pfleider, residents of Bayawan, Negros Oriental, were the
has already prescribed under Article 1146 of the Civil Code.
owners or operators of a Ford pick-up car; that at about 5:00
o'clock in the afternoon of December 31, 1970, in the streets of
Bayawan, Negros Oriental, their son, defendant Dennis Pfleider, A Supplemental Motion for Reconsideration 2 was subsequently
who was then only sixteen (16) years of age, without proper filed by defendants-private respondents on September 10, 1975,
official authority, drove the above-described vehicle, without due alleging that their defense of prescription has not been waived
regard to traffic rules and regulations, and without taking the and may be raised even at such stage of the proceedings
necessary precaution to prevent injury to persons or damage to because on the face of the complaint, as well as from the
property, and as a consequence the pickup car was overturned, plaintiff's evidence, their cause of action had already prescribed,
causing physical injuries to plaintiff Annette Ferrer, who was citing as authority the decision of this Court in Philippine
then a passenger therein, which injuries paralyzed her and National Bank v. Pacific Commission House, 3 as well as the
required medical treatment and confinement at different decisions quoted therein. The Opposition 4 to the above
hospitals for more than two (2) years; that as a result of the supplemental motion interposed by plaintiffs-petitioners averred
physical injuries sustained by Annette, she suffered that: (a) the defense of prescription had been waived while the
unimaginable physical pain, mental anguish, and her parents defense that the complaint states no cause of action "is
also suffered mental anguish, moral shock and spent a available only at any time not later than the trial and prior to the
considerable sum of money for her treatment. They prayed that decision"; (b) inasmuch as defendants have been declared in
defendants be ordered to reimburse them for actual expenses default for failure to appear at the pretrial conference, they have
as well as other damages. lost their standing in court and cannot be allowed to adduce
evidence nor to take part in the trial, in accordance with Section
2 of Rule 18 of the Rules of Court; and (c) the motion and
In due time, defendants filed their answer, putting up the
supplemental motion for reconsideration are pro formabecause
affirmative defense that defendant Dennis Pfleider exercised
the defenses raised therein have been previously raised and
due care and utmost diligence in driving the vehicle
passed upon by respondent court in resolving defendants'
aforementioned and alleging that Annette Ferrer and the other
motion to set aside order of default. Being pro forma, said
persons aboard said vehicle were not passengers in the strict
motion and supplemental motion do not suspend the running of
sense of the term, but were merely joy riders and that,
the thirty-day period to appeal, which was from August 5, 1975,
consequently, defendants had no obligation whatsoever to
when defendants received a copy of the decision, to September
plaintiffs.
CIVIL PROCEDURE RULE 7-9 FULL TEXT
4, 1975, and hence the decision has already become final and In the present case, there is no issue of fact involved in
executory. Plaintiffs-petitioners accordingly prayed that a writ of connection with the question of prescription. The complaint in
execution be issued to enforce the judgment in their favor. Civil Case No. Q-19647 alleges that the accident which caused
the injuries sustained by plaintiff Annette Ferrer occured on
On September 23, 1975, respondent judge, without setting December 31, 1970. It is undisputed that the action for damages
aside the order of default, issued an order absolving defendants was only filed on January 6, 1975. Actions for damages arising
from any liability on the grounds that: (a) the complaint states no from physical injuries because of a tort must be filed within four
cause of action because it does not allege that Dennis Pfleider years. 8 The four-year period begins from the day the quasi-
was living with his parents at the time of the vehicular accident, delict is committed or the date of the accident. 9
considering that under Article 2180 of the Civil Code, the father
and, in case of his death or incapacity the mother, are only WHEREFORE, the instant petition for mandamus is hereby
responsible for the damages caused by their minor children who DISMISSED, without pronouncement as to costs.
live in their company; and (b) that the defense of prescription is
meritorious, since the complaint was filed more than four (4)
years after the date of the accident, and the action to recover
damages based on quasi-delict prescribes in four (4) years.
Hence, the instant petition for mandamus.

The basic issue is whether the defense of prescription had been


deemed waived by private respondents' failure to allege the
same in their answer.

As early as Chua Lamko v. Dioso, et al., 5 this Court sustained


the dismissal of a counterclaim on the ground of prescription,
although such defense was not raised in the answer of the
plaintiff. Thus, this Court held that where the answer does not
take issue with the complaint as to dates involved in the
defendant's claim of prescription, his failure to specifically plead
prescription in the answer does not constitute a waiver of the
defense of prescription. It was explained that the defense of
prescription, even if not raised in a motion to dismiss or in the
answer, is not deemed waived unless such defense
raises issues of fact not appearing upon the preceding pleading.

In Philippine National Bank v. Perez, et al., 6 which was an action


filed by the Philippine National Bank on March 22, 1961 for
revival of a judgment rendered on December 29, 1949 against
Amando Perez, Gregorio Pumuntoc and Virginia de Pumuntoc
pursuant to Section 6, Rule 39 of the rules of court the
defendants were declared in default for their failure to file their
answer. There upon, the plaintiff submitted its evidence, but
when the case was submitted for decision, the court a
quo dismissed the complaint on the ground that plaintiff's cause
of action had already prescribed under Articles 1144 and 1152 of
the Civil Code. The plaintiff in said case, contending that since
prescription is a defense that can only be set up by defendants,
the court could not motu proprio consider it as a basis for
dismissal, moved to reconsider the order, but its motion was
denied. When the issue was raised to this Court, We ruled:

It is true that the defense of prescription can only be


considered if the same is invoked as such in the answer
of the defendant and that in this particular instance no
such defense was invoked because the defendants had
been declared in default, but such rule does riot obtain
when the evidence shows that the cause of action upon
which plaintiff's complaint is based is already barred by
the statute of limitations. (Emphasis supplied.)

Again, in Philippine National Bank v. Pacific Commission


House, 7 where the action sought to revive a judgment rendered
by the Court of First Instance of Manila on February 3, 1953 and
it was patent from the stamp appearing on the first page of the
complaint that the complaint was actually filed on May 31, 1963,
this Court sustained the dismissal of the complaint on the
ground of prescription, although such defense was not raised in
the answer, overruling the appellants' invocation of Section 2 of
Rule 9 of the Rules of Court that "defenses and objections not
pleaded either in a motion to dismiss or in tile answer are
deemed waived." We held therein that "... the fact that the
plaintiff's own allegation in tile complaint or the evidence it
presented shows clearly that the action had prescribed removes
this case from the rule regarding waiver of the defense by failure
to plead the same."
CIVIL PROCEDURE RULE 7-9 FULL TEXT
1940, Canuto Sanchez sold his share in the conjugal properties
to Hilarion Barcelona (Exhibit 2). Subsequently, in December
1940, Simeona Barcelona and Aniceto San Gabriel, who is row
deceased and the father Quirico San Gabriel and Teodora San
Gabriel, renounced their corresponding share in the intestate
estate in favor of Hilarion Barcelona for having shouldered the
claims against the estate. Consequently, Hilarion Barcelona
commenced to possess actually, openly, publicly, continuously
and under claim of title, adverse to all other claimants and
exclusive of any other right and against the whole world for
more than ten years, that portion of the estate ceded to him by
his co-heirs, paying the corresponding real taxes form 1940 to
1953 (Exhibit 7-7-A).
However, on April 14, 1951, Simeona Barcelona, Quirico San
Gabriel and Teodora San Gabriel filed the present action,
claiming that in the settlement of the parties in the
aforementioned Special Proceedings No. 6585, Canuto
Sanchez, because of inability or unwillingness to meet to total
indebtedness of the estate of his deceased wife, agreed to
transfer, as in the fact he did transfer, as a sort of compromise
and settlement to Hilarion and his co-heirs, the entire two
parcels of land in question; chan roblesvirtualawlibrarythat one
week after the settlement was made, Plaintiffs went to the house
of Defendant, and because the latter was only one who had
shouldered the expenses of litigation and because
said Plaintiff did not have the money with which to reimburse
him of their corresponding share therein, they all agreed that he
was to take the possession and cultivation of the lands until after
he would have been reimbursed of his expenses, in which even
partition of the land was to be made; chan
roblesvirtualawlibrarythat in the months of November 1952, and
May, 1945, Plaintiffdemanded the partition of the properties on
the ground that probably Appellee had already recovered his
expenses out of the produce, but Defendant told them that he
had not recovered them yet though he promise to give them
palay, which he did, amounting to 15 cavans of the harvest of
October 1945 and another 30 cavans in February, 1951, when
he told Plaintiffs that they did not have anymore share in the
lands in litigation.
Answering the complaint, Defendant avers that if he took
possession of the parcels of land it was because he purchased
the share of Canuto Sanchez consisting of one-half of the estate
and that is his co-heirs renounced to the other half in his favor
because of their inability to reimburse him of their share in the
expenses of the litigation.
After trial, the lower court dismissed the complaint,
declaring Defendant as the sole and exclusive owner of the two
parcels of land mentioned in paragraph 2 of the amended
complaint. Not satisfied with the judgment Plaintiffs appealed
and now maintain that the lower court erred cralaw.
It will be observed that the Court of Appeals found as a fact that
Canuto Sanchez had sold his one-half share of the two lots in
[G.R. No. L-9014. October 31, 1956.] question to Hilarion Barcelona for a valuable consideration, by
not sure kai 100 scra 251 ang gisuwat; 100phil 251 ni means of a private instrument. Appellants herein question the
SIMEONA BARCELONA, QUIRICO SAN GABRIEL, and validity of the conveyance, but their contention is disposed of
TEODORA SAN GABRIEL, Petitioners, vs. HILARION and denied by the Court of Appeals, properly in our opinion, in
BARCELONA and THE HONORABLE COURT OF the following considerations, which we
APPEALS, Respondents. reproduce:chanroblesvirtuallawlibrary
As already stated elsewhere, the spouses Canuto Sanchez
DECISION Leoncia Barcelona was childless and had acquired out of their
common funds two parcels of land. Upon the death of the wife,
MONTEMAYOR, J.:
one-half of the conjugal properties passed to the surviving
This is a petition to review by way of certiorari, a decision of the husband, and at the same time had to enjoy the usufruct of the
Court of Appeals affirming the judgment of the Court of First other half. As to the portion that under the law passed to him,
Instance of Laguna in hectares each, covered by certificates of the surviving spouse could dispose the same in anyway he
title under the Torrens system. The facts as found by the Court wanted to, with only the limitations provided by law. Disposing
of Appeals are as follows:chanroblesvirtuallawlibrary his share by way of sale was certainly not one of his legal
limitations. However, it is maintained that the private instrument
A certain Leoncia Barcelona was the lawful wife of one Canuto embodying the conveyance of the portion belonging to Canuto
Sanchez. The couple acquired out of their common funds two Sanchez is spurrious and self-serving. It is significant to note in
parcels of land of about four hectares now dedicated to palay, this connection that Plaintiffs are not the heirs of Canuto
and located in the barrio of Puypuy Bay, Laguna, as well as Sanchez, and, therefore, they have no reason whatsoever to
some jewels valued at P2,000. Leoncia died on March 25, 1933, assail the way he had disposed of the property that lawfully
and on December 11, 1934, Hilarion Barcelona, a brother of the belonged to him, nor the way Hilarion Barcelona acquired the
deceased, for himself and behalf of Simeona Barcelona, Quirico same. It was only pro forma when the agreement dividing
San Gabriel and Teodora San Gabriel instituted Special equally the conjugal properties was reduce in writing (Exhibit
Proceedings No. 6585 in the Court of First Instance of Laguna 2), for the simple reason that the law adjucates one-half of this
for the issuance of letters of administration of the properties of kind of property to surviving spouse. The non-participation of the
said decedent, the records of which were destroyed during the co-heirs of Hilarion Barcelona in the execution of the private
last war. Consequently, the surviving spouse, Canuto Sanchez, instrument (Exhibit 2), is of no moment, because they had no
was appointed administrator of the estate. As he could not afford right at all to participate in the disposition of the share of Canuto
to pay all the claims against the estate, Hilarion Barcelona, the Sanchez for valuable consideration.
eldest brother of the deceased paid all the total indebtedness in
the sum of P1,070 (Exhibit (2, 2-A and 2-B). On October 29,
CIVIL PROCEDURE RULE 7-9 FULL TEXT
Appellants further maintain that inasmuch as Exhibit 2 purports by said partition or renunciation for the simple reason that they
to be an amicable settlement and sale between Hilarion did not take part in it.
Barcelona and Canuto Sanchez in connection with the
properties involved in the intestate estate of the deceased But the Court of Appeals held that Hilarion Barcelona had
Leoncia Barcelona among whose heirs are Appellants who did acquired the property in question through prescription for the
not participate in the execution thereof; chan reason that since 1940, he had taken possession thereof as
roblesvirtualawlibrarythe same cannot be admitted against them owner, occupied it continuously, paid the taxes therefore, and
on the principle of res inter alios acta. The main consideration even improved the same. To this, we cannot agree. The property
for the amicable settlement of the alleged litigation between in litigation, being registered land under the provisions of Act
Hilarion Barcelona and Canuto Sanchez was that the conjugal 496, is not subject to prescription, and it may not be claimed that
property of the spouses Canuto and Leoncia shall be partitioned imprescriptibility is in favor only of the registered owner,
equally between the surviving spouse on one hand and the heirs because as we have held in the cases of Teofila de Guinoo, et
of the deceased spouse on the other. In view of the fact that the al., vs. Court of Appeals, (97 Phil., 235) and Gil Atun, et al., vs.
consideration does not supplement what the law provides, for its Eusebio Nuez (97 Phil., 762), prescription is unavailing not
provision was simply reiterated therein, we believe that the only against the registered owner, but also against his hereditary
recipients of their corresponding share need not approve what successors because the latter merely step into the shoes of the
the law gives them. Furthermore, the litigation was between decedent by operation of law and are merely the continuation of
Hilarion Barcelona and Canuto Sanchez and for the amicable the personality of their predecessor in interest.
settlement thereof does not need the intervention of other It is, therefore, clear that Quirico and Teodora, as heirs of the
parties not pleaded therein, as in the case of Appellants. sister of the deceased Leoncia, have the right to one-third of the
To us, the main question involved in the appeal is the alleged one-half of the conjugal property which belonged to said
renunciation of the inheritance in favor of Hilarion Barcelona by deceased, or rather one-sixth of the two parcels already
his sister Simeona Barcelona in her own behalf and by Aniceto mentioned, while Hilarion Barcelona has a right to five-sixth, for
San Gabriel brother-in-law of the deceased Leoncia Barcelona, the reason that he bought three-sixths or one-half thereof from
on behalf of his supposed minor children, now Canuto Sanchez as the latters one-half share of said conjugal
herein Appellants Quirico San Gabriel and Teodora San Gabriel. property, and he (Hilarion) received the one-sixth portion
Said renunciation may be regarded as in the nature of a partition renounced in his favor by his sister Simeona, and one-sixth
of one-half of the conjugal properties left by Leoncia Barcelona portion is his own share of the inheritance. From the year 1941,
among her heirs, namely Hilarion and Simeona, brother and Hilarion has to account for the products of the property and give
sister, respectively, and Quirico and Teodora San Gabriel, to Quirico and Teodora their one-sixth share of the same. On
nephew and niece, respectively, children of another sister of pages 44 and 45 of the brief for the Petitioners may be found a
hers. Among other grounds, Appellants invoke the Statute of statement and computation of the amount of palay received by
Frauds, claiming that conveyance of real property should be Hilarion for 15 years and the price thereof, based on the price of
evidenced by a written instrument. In the first place, partition palay for each of those years, according to the certification of
among heirs or renunciation of an inheritance by some of them the Bureau of Commerce and Industry, with a total value of
is not exactly a conveyance of the contract takes it out of the P11,002.50. Their one- sixth share of these sum of P11,002.50
operation of the property from one to the other, but rather a is P1,833.75. Deducting from this last figure the price of the 15
confirmation or ratification of title or right to property by the heir cavans of palay valued at P298.50 and 30 cavans of palay
renouncing in favor of another heir accepting and receiving the valued at P363.00, or a total of P661.50, received from him by
inheritance. Furthermore, in the case of Hernandez, et al., vs. the Petitioners in the years 1945 and 1951, respectively, we
Andal, et al., 44 Off. Gaz. No. 8 p. 2672, this Tribunal held that have a balance of P1,175.25. At the same time, for the reason
the Statute of Frauds enacted in the Philippines first in section that Quirico and Teodora will receive one-sixth of the two lots in
335 of the former Code of Civil Procedure, and now in Rule 123, question and one-sixth of the net value of the products for 15
section 21 of the Rules of Court, has been uniformly interpreted years, they should also bear one-sixth of all the amounts
in a long line of decisions to be applicable to executory and not advanced by Hilarion such as P1,070 to pay off the debts of the
to completed or executed contracts, and that performance of the estate, P2,000 for funeral expenses, and court expenses
contract takes it out of the operation of the Statute of because of the intestate proceedings, and P2,000 spent by him
Frauds; chan roblesvirtualawlibraryand that in this jurisdiction, to improve the property by converting the same from sugar to
on grounds of equity, where no rights of creditors are involved, it rice lands, and P208.50 as real estate taxes for 15 years or a
is competent for the heirs of an estate to enter into an oral total of P5,278.50. Their one-sixth share of these expenses
agreement for distribution of the estate among themselves. amounts to P879.75. Subtracting this sum from the last balance
P1,172.25 will give a net balance of P292.50 in favor of Quirico
The above mentioned rule is really wise, if not necessary, for and Teodora.
otherwise, thousands and thousands of oral partitions made
among heirs in our rural communities, involving unregistered In this connection it should be stated that Hilarion may be
properties of relatively small value, would have to be declared regarded as a possessor in good faith for the reason that in
null and void. It is of general knowledge that in the provinces, taking possession of the entire property, he was of the belief that
specially in the barrios, when a person dies leaving small there had been a valid renunciation of the one-sixth share
parcels of land not included in the Torrens System of corresponding to Quirico and Teodora.
registration, either through ignorance of the law or in order to In view of the foregoing, Hilarion Barcelona and Quirico and
avoid expenses in the way of legal services, notarial fees, and Teodora San Gabriel may partition the two parcels in litigation in
fees of registration, the heirs merely come together, make a list the proportion above indicated, namely, five-sixth for Hilarion
of the properties included in the estate, pay off small debts and and the remaining one-sixth for Quirico and Teodora. Hilarion is
sums advanced by some of the heirs, specially for expenses ordered to pay the latter the sum of P292.50. No costs.
incurred during the last illness of the decedent and for his
funeral, and then proceed to assign to each one his share of the
estate, even taking into account the last instructions and wishes
of the decedent. So far, this practice has been found to be not
only convenient and inexpensive, but even advisable, and is
accepted by the people, and we find no good reason for
disturbing said practice. Now, when valuable properties,
specially those covered by certificates of title, are involved in the
partition, perhaps strict compliance with the law may be
advisable, even necessary.
For this reason we find and hold that the oral partition or
renunciation of inheritance by Simeona Barcelona for that
portion of the conjugal property belonging to her deceased sister
Leoncia, is valid and binding upon her. Not so with respect to
Quirico and Teodora. If they were minors at the time of the oral
partition, their father, Aniceto San Gabriel, not being a judicial
guardian duly appointed by the court and lacking judicial
authority, could not validly make the renunciation or consent to
the partition on behalf of his minor children; chan
roblesvirtualawlibraryand if, as insinuated, Quirico and Teodora
were no longer minors at that time, then they cannot be bound
CIVIL PROCEDURE RULE 7-9 FULL TEXT
the former brought suit in the then Court of First Instance of
Lanao del Norte (now Regional Trial Court) for annulment of
contract and for recovery of damages against Layug.

After trial judgment was rendered in favor of petitioner.


Respondent appealed to the Court of Appeals which on 30
August 1985 affirmed the judgment. The appellate court (1)
ordered the rescission of the conditional sale of the twelve (12)
lots described in the contract; (2) declared as rentals for the
twelve (12) lots from 1978 to the present (30 August 1985) all
payments made by respondent Layug to Gabuya plus the legal
interest thereon from the execution of the contract; (3) ordered
respondent Layug to vacate the twelve (12) lots and deliver the
possession thereof to petitioner Gabuya; and, (4) ordered
respondent Layug to pay petitioner Gabuya the sum of
P5,000.00 as attorney's fees and to pay the costs.

On appeal to us we affirmed the Court of Appeals particularly


insofar as it authorized the cancellation by petitioner Gabuya of
the contract of sale with respondent Layug but modified the
same to the affect that the cancellation should be effective and
fully operative only upon payment of the "cash surrender value"
of his payments in the sum of P40,000.00.

On 8 March 1989 our decision became final and executory.


Consequently, on 31 May 1989 a writ of execution was issued
by the trial court. On 8 June 1989 a certificate of turnover was
issued by Sheriff Elias Anacleto in favor of petitioner. But the
order of execution was elevated by respondent Layug through a
petition for certiorari to the Court of Appeals which subsequently
dismissed it.

On 30 September 1991 the sheriff submitted to the trial court a


return of the writ of execution with the recommendation that the
buildings of private respondent found in the property be
demolished.

Meanwhile, on 27 June 1989 respondent Layug filed a


complaint for specific performance with prayer for a temporary
restraining order against petitioner seeking reimbursement for
the value of the improvements, buildings and materials he
(Layug) introduced in the premises covered by the contract of
sale which by final judgment of this Court was already ordered
G.R. No. 104846 November 23, 1995 rescinded.

RODRIGO GABUYA represented by his attorney-in-fact His motion to dismiss in the court below having been denied
LUCIA PONCE, petitioner, petitioner filed his answer to the complaint.
vs.
ANTONIO LAYUG and HON. FEDERICO NOEL, REGIONAL
On 16 October 1991 respondent judge issued an order directing
TRIAL COURT, ILIGAN CITY, BRANCH 2,respondents.
Deputy Provincial Sheriff Salcedo "to refrain from
disposs(ess)ing plaintiff of the possession of the property until
ordered by the court." 2 On 22 January 1992 the trial court on
motion of petitioner reconsidered its order. However on 11
BELLOSILLO, J.: March 1992, this time upon motion of respondent Layug, it again
reconsidered its order and reinstated the restraining order of 16
This is a petition for certiorari and prohibition under Rule 65 of October 1991 against Deputy Sheriff Salcedo. Hence this
the Rules of Court seeking to annul the orders dated 16 October petition by Rodrigo Gabuya against respondent judge and
1991 and 11 March 1992 of respondent Judge Federico V. Noel, Antonio Layug alleging grave abuse of discretion amounting to
Regional Trial Court, Lanao del Norte, Br. 2, in Civil Case No. II- lack of jurisdiction on the part of respondent judge in taking
1408, Antonio Layug v. Rodrigo Gabuya, and to annul the cognizance of Civil Case No. II-1408 and in issuing the
proceedings held thereon. The questioned orders and questioned orders.
proceedings are alleged to unduly interfere with the final
judgment of this Court in G.R. No. 75364 involving the same There is obvious merit in the petition. The final judgment of this
parties, the same facts and the same issues. 1 Court in G.R. No. 75364 promulgated 23 November 1988
involving the same parties, facts and issues constitutes an
On 4 October 1978 private respondent Antonio Layug entered absolute bar to Civil Case No. II-1408 now pending with the
into a contract with petitioner Rodrigo Gabuya for the purchase Regional Trial Court of Lanao del Norte, Br. 2. It is final as to all
by the former of the latter's twelve (12) lots situated in Iligan City claims and demands of petitioner Gabuya and respondent
for the price of P120,000.00 payable in three (3) yearly Layug with regard to the twelve (12) lots in Iligan City subject
installments. Respondent Layug paid the first two (2) annual matter of the contract of sale ordered cancelled by this Court.
installments totaling P80,000.00 but failed to pay the last This judgment binds the parties not only as to every matter
installment of P40,000.00. When formal demands for payment offered and received to sustain or defeat their claims or demand
were made by petitioner and respondent repeatedly failed to pay but as to any other admissible matter which might have been
CIVIL PROCEDURE RULE 7-9 FULL TEXT
offered for that purpose and of all other matters that could have This is a petition to review and set aside two orders of the then
been adjudged in that case. Court of First Instance of Negros Oriental, namely: (1) the order
dated October 11, 1985, disqualifying Perfects Cavili dela Cruz
In the case before us, the claim for reimbursement of the value as a witness in Civil Case No. 6880 entitled "Clarita Cavili, et al.
of improvements introduced by respondent Layug on the v. Perfecta Cavili, Quirino Cavili, and Primitivo Cavili" and (2) the
property subject of the contract of sale should have been raised order dated November 26, 1985, refusing to reconsider the
by him as a counterclaim in the complaint for annulment of previous orders of disqualification and resetting the reception of
contract before the trial court in the first case instituted by evidence for the defendants to December 19 and 20, 1985 with
petitioner Gabuya. The failure of respondent Layug to raise a warning that should defendants' witnesses fail to appear in
these matters therein precludes the re-litigation of the same court on said date, they will be deemed to have waived their
facts in a separate complaint. It has been ruled that when right to be witnesses in this case.
defendants are sued for recovery of a tract of land they ought to
have presented a counterclaim for the value of the The private respondents filed Civil Case No. 6880 with the Court
improvements thereon and the amount of damages suffered by of First Instance of Negros Oriental against herein petitioners for
them because the claim for such improvements and indemnity is Partition, Accounting, and Damages. After the case was raffled
necessarily connected with the suit for the restitution or recovery to Branch I presided over by Judge Augusto S. Villarin,
of land claimed to have been improved, and with the result of summons was issued to the three petitioners, all at Bayawan
the execution of the judgment awarding recovery. 3 Negros Oriental which was the address indicated in the
complaint.
On the basis of the foregoing, the questioned orders issued by
respondent judge on 16 October 1991 and 11 March 1992 After trying to effect service, the process server went back to the
restraining the deputy sheriff from implementing the writ of court with the following return of service to Quirino and Primitivo
execution of the final judgment of this Court in G.R. No. 75364 Cavili not contacted, according to Perfecta Cavili, subject
were issued by respondent judge with grave abuse of discretion persons is (sic) staying in Kabangkalan, Negros Occidental."
amounting to lack of jurisdiction.
Meanwhile, Atty. Jose P. Alamino filed a motion for extension to
WHEREFORE, the petition is GRANTED. The questioned answer in behalf of the defendants, manifesting the
orders of respondent judge dated 16 October 1991 and 11 representation of his client Perfecta Cavili that she will inform
March 1992, as well as the proceedings in Civil Case No. II- her brothers Primitivo and Quirino about the case.
1408 now pending with the Regional Trial Court of Lanao del
Norte, Br. 2, are ANNULLED and SET ASIDE. Respondent The defendants, however, failed to file their answer within the
judge, or whoever may now be acting in his behalf or assigned request period and upon motion of the plaintiffs, the defendants
to the case, is directed to pursue immediately the were declared in default, and on October 5, 1979, a judgment by
implementation of the writ of execution issued on 31 May 1989 default was promulgated by Judge Augusto S. Villarin.
to satisfy the judgment that has long become final and
executory. Costs against private respondent.
The records of the case, however, show that a Manifestation
was filed by Atty. Jose P. Alamino informing the court that since
SO ORDERED. he never met Primitivo and Quirino Cavili, who are residents of
another province, he desisted from further appearing in the case
in their behalf.

On November 7, 1979, Atty. Jose P. Alamillo received a copy of


the decision. On December 7, 1979, he filed a motion for new
trial in behalf of the defendants on grounds of lack of jurisdiction
and, with a meritorious defense that the properties sought to be
partitioned have already been the subject of a written partition
agreement between the direct heirs of the late Bernardo Cavili
who are the predecessors of the parties in this case. In/an order
dated April 23, 1980, the court granted said motion.

The plaintiffs filed a motion for reconsideration of the order


granting new trial and at the same time prayed that a writ of
execution be issued but only in so far as defendant Perfecta
Cavili was concerned.

In an order dated July 21, 1981, Judge Cipriano Vamenta of


Branch III of the Court of First Instance of Negros Oriental to
whom the case had been assigned after a re-raffle, set aside the
order of April 23, 1980 and directed the execution of the October
5, 1979 decision without qualification ruling that the petitioners'
remedy should have been appeal rather than new trial.
G.R. No. 73039 October 9, 1987
Their motion for reconsideration having been denied on August
PERFECTA CAVILI, PRIMITIVO CAVILI and QUIRINO 11, 1981, the defendants, now petitioners, brought the case to
CAVILI, petitioners, this Court through a petition for certiorari, G.R. No. 57771,
vs. entitled "Quirino Cavili, et al., Petitioners vs. Hon. Cipriano
HON. TEODORO N. FLORENDO, Presiding Judge, Branch Vamenta, et al., Respondents "
XXXVI, Regional Trial Court of Negros Oriental, 7th Judicial
Region, CLARITA CAVILI, ULPIANO CAVILI, ESTRELLA On May 31, 1982, this Court rendered a decision, the dispositive
CAVILI, PLACIDA CAVILI, ET AL.,respondents. portion of which reads:

GUTIERREZ, JR., J.:


CIVIL PROCEDURE RULE 7-9 FULL TEXT
WHEREFORE, Our resolution dismissing the The respondents, however, cite Section 2, Rule 18 on Defaults,
petition is hereby reconsidered; the petition is to wit:
granted; and the order dated July 21, 1981,
is set aside while that of April 23, 1980, is Section 2. Effect of order of default. Except as provided in
revived. (No special pronouncement as to section 9 of Rule 13, a party declared in default shall not be
costs. Rollo p. 21) entitled to notice of subsequent proceedings nor to take part in
the trial.
Thereafter, the pre-trial and trial of Civil Case No. 6880 was
scheduled on October 9, 10, and 11, 1985 before Branch XXXVI They advance the argument that to allow Perfecta Cavili to
of the Regional Trial Court, presided by respondent Judge stand as witness would be to permit a party in default "to take
Teodoro N. Florendo. The defendants, (now petitioners), part in the trial."
presented Perfects Cavili dela Cruz as their first witness. The
respondents, through counsel moved for her disqualification as
An explanation of the Rule is in order.
a witness on the ground that having been declared in default,
Perfects Cavili has lost her standing in court and she cannot be
allowed to participate in all premise the even as a witness. The Loss of standing in court is the consequence of an order of
court, through the respondent judge, sustained the respondents' default. Thus, a party declared in default is considered out of
contention and disqualified her from testifying. court and cannot appear therein, adduce evidence, and be
heard and for that reason he is not entitled to notice. (Rule 18,
Rules of Court; Lim Toco v. Go Fay, 80 Phil. 166) However, "loss
The petitioners, through counsel, moved for a reconsideration of
of pending" must be understood to mean only the forfeiture of
the ruling.
one's rights as a party litigant, contestant or legal adversary. A
party in default loses his right to present his defense, control the
On November 26, 1985, the lower court issued an order denying proceedings, and examine or cross-examine witnesses. He has
reconsideration of its Order dated October 11, 1985 disqualifying no right to expect that his pleadings would be acted upon by the
Perfecta Cavili dela Cruz as a witness in Civil Case No. 6880. court nor may he object to or refute evidence or motions filed
against him. There is nothing in the rule, however, which
Hence, this petition. contemplates a disqualification to be a witness or a opponent in
a case. Default does not make him an incompetent.
Petitioner Perfecta Cavili's competence as a witness is put in
issue by the private respondents. As opposed to a party litigant, a witness is merely a beholder, a
spectator or onlooker, called upon to testify to what he has seen,
Section 18, Rule 130 of the Revised Rules of Court states who heard, or observed. As such, he takes no active part in the
are qualified to be witnesses. It provides: contest of rights between the parties. Cast in the cited role of
witness, a party in default cannot be considered as " a part in
the trial." He remains suffering the effects of an order of default.
Section 18. Witnesses; their qualifications. Except as
provided in the next succeeding section, all persons who, having
organs of sense, can perceive, and perceiving, can make known A party in default may thus be cited as a witness by his co-
their perception to others, may be witnesses. Neither parties nor defendants who have the standing and the right to present
other persons interested in the outcome of a case shall be evidence which the former may provide. The incidental benefit
excluded; nor those who have been convicted of crime; nor any giving the party in default the opportunity to present evidence
person on account of his opinion on matters of religious belief. which may eventually redound to his advantage or bring about a
desired result, through his co-defendants, is of minor
consequence.
The generosity with which the Rule allows people to testify is
apparent. Interest in the outcome of a case, conviction of a
crime unless otherwise provided by law, and religious belief are Of greater concern or importance in allowing the presence of
not grounds for disqualification. Perfecta Cavili as a witness in the case at bar, is the
preservation of the right of petitioners Quirino and Primitivo
Cavili to secure the attendance of witnesses and the production
Sections 19 and 20 of Rule 130 provide for specific
of evidence in their behalf. To reject Perfects Cavili's
disqualifications. Section 19 disqualifies those who are mentally
presentation of testimonial evidence would be to treat Primitivo
incapacitated and children whose tender age or immaturity
and Quirino, as if they too were in default. There is no reason
renders them incapable of being witnesses. Section 20 provides
why the latter should also be made to bear the consequences of
for disqualification based on conflicts of interest or on
Perfecta's omission. Moreover, we cannot deprive Quirino and
relationship. Section 21 provides for disqualifications based on
Primitivo of the only instrument of proof available to them, as
privileged communications. Section 15 of Rule 132 may not be a
Perfecta alone has been in possession and administration of the
rule on disqualification of witnesses but it states the grounds
claim.
when a witness may be impeached by the party against whom
he was called.
WHEREFORE, in view of the foregoing, the petition is hereby
GRANTED. The order of the respondent court disqualifying.
There is no provision of the Rules disqualifying parties declared
Perfects Cavili dela Cruz as a witness in Civil Case No. 6880 is
in default from taking the witness stand for non-disqualified
hereby SET ASIDE. The case is remanded to the court a quo for
parties. The law does not provide default as an exception. The
Wither proceedings. The temporary restraining order issued on
specific enumeration of disqualified witnesses excludes the
January 6, 1986 is LIFTED.
operation of causes of disability other than those mentioned in
the Rules. It is a maxim of recognized utility and merit in the
construction of statutes that an express exception, exemption, SO ORDERED.
or saving clause excludes other exceptions. (In Re Estate of
Enriquez, 29 Phil. 167) As a general rule, where there are
express exceptions these comprise the only limitations on the
operation of a statute and no other exception will be implied.
(Sutherland on Statutory Construction, Fourth Edition, Vol. 2A,
p. 90) The Rules should not be interpreted to include an
exception not embodied therein.
CIVIL PROCEDURE RULE 7-9 FULL TEXT

G.R. No. L-53880 March 17, 1994

ENRICO L. PACETE, CLARITA DE LA CONCEPCION,


EMELDA C. PACETE, EVELINA C. PACETE and EDUARDO
C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION
(CONCHITA) ALANIS PACETE, respondents.

VITUG, J.:

The issue in this petition for certiorari is whether or not the Court
of First Instance (now Regional Trial Court) of Cotabato, Branch
I, in Cotabato City, gravely abused its discretion
in denying petitioners' motion for extension of time to file their
answer in Civil Case No. 2518, in declaring petitioners in default
and in rendering its decision of 17 March 1980 which, among
other things, decreed the legal separation of petitioner Enrico L.
Pacete and private respondent Concepcion Alanis and held to
be null and void ab initio the marriage of Enrico L. Pacete to
Clarita de la Concepcion.

On 29 October 1979, Concepcion Alanis filed with the court


below a complaint for the declaration of nullity of the marriage
between her erstwhile husband Enrico L. Pacete and one Clarita
de la Concepcion, as well as for legal separation (between
Alanis and Pacete), accounting and separation of property. In
her complaint, she averred that she was married to Pacete on
30 April 1938 before the Justice of the Peace of Cotabato,
Cotabato; that they had a child named Consuelo who was born
on 11 March 1943; that Pacete subsequently contracted (in
1948) a second marriage with Clarita de la Concepcion in
Kidapawan, North Cotabato; that she learned of such marriage
only on 01 August 1979; that during her marriage to Pacete, the
latter acquired vast property consisting of large tracts of land,
fishponds and several motor vehicles; that he fraudulently
placed the several pieces of property either in his name and
Clarita or in the names of his children with Clarita and other
"dummies;" that Pacete ignored overtures for an amicable
settlement; and that reconciliation between her and Pacete was
impossible since he evidently preferred to continue living with
Clarita.

The defendants were each served with summons on 15


November 1979. They filed a motion for an extension of twenty
(20) days from 30 November 1979 within which to file an
answer. The court granted the motion. On 18 December 1979,
appearing through a new counsel, the defendants filed a second
motion for an extension of another thirty (30) days from 20
December 1979. On 07 January 1980, the lower court granted
the motion but only for twenty (20) days to be counted from 20
CIVIL PROCEDURE RULE 7-9 FULL TEXT
December 1979 or until 09 January 1980. The Order of the court 6. A parcel of land covered by Transfer Certificate of Title
was mailed to defendants' counsel on 11 January 1980. Likely No. T-9944, with an area of 9.9566 and also covered by Tax
still unaware of the court order, the defendants, on 05 February Declaration No. 8608 (74) and registered in the name of the
1980, again filed another motion (dated 18 January 1980) for an defendant Enrico L. Pacete which Enrico L. Pacete
extension of "fifteen (15) days counted from the expiration of the acquired from Sancho Balingcos last October 22, 1962, as
30-day period previously sought" within which to file an answer. shown by Exhibit "L-1" and which parcel of land is situated
The following day, or on 06 February 1980, the court denied this at (Kialab), Kiab, Matalam, North Cotabato.
last motion on the ground that it was "filed after the original
period given . . . as first extension had expired." 1 7. A parcel of land covered by Transfer Certificate of Title
No. T-9227, situated at Kiab, Matalam, North Cotabato, with
The plaintiff thereupon filed a motion to declare the defendants an area of 12.04339 hectares, more or less, and also
in default, which the court forthwith granted. The plaintiff was covered by Tax Declaration No. 8607 (74) both in the name
then directed to present her evidence. 2 The court received of the defendant Enrico L. Pacete which he acquired last
plaintiff's evidence during the hearings held on 15, 20, 21 and October 15, 1962 from Minda Bernardino, as shown by
22 February 1980. Exhibit "M-1".

On 17 March 1980, the court 3 promulgated the herein 8. A parcel of land covered by Transfer Certificate of Title
questioned decision, disposing of the case, thus No. T-9228, situated at Kiab, Matalam, North Cotabato, with
an area of 10.8908 hectares, registered in the name of
WHEREFORE, order is hereby issued ordering: Enrico Pacete and also covered by Tax Declaration No.
5781 (74) in the name of Enrico Pacete and which parcel of
land he acquired last September 25, 1962 from Conchita
1. The issuance of a Decree of Legal Separation of the
dela Torre, as shown by Exhibit "P-1".
marriage between, the plaintiff, Concepcion (Conchita)
Alanis Pacete and the herein defendants, Enrico L. Pacete,
in accordance with the Philippine laws and with 9. A parcel of land covered by Transfer Certificate of Title
consequences, as provided for by our laws; No. T-10301, situated at Linao, Matalam, North Cotabato,
with an area of 7.2547 hectares, registered in the name of
Enrico Pacete and also covered by Tax Declaration No.
2. That the following properties are hereby declared as the
8716 (74) also in the name of Enrico Pacete which Enrico
conjugal properties of the partnership of the plaintiff,
Pacete acquired from Agustin Bijo last July 16, 1963, as
Concepcion (Conchita) Alanis Pacete and the defendant,
shown by Exhibit "N-1".
Enrico L. Pacete, half and half, to wit:

10. A parcel of land covered by Transfer Certificate of Title


1. The parcel of land covered by TCT No. V-815 which is a
No. 12728 in the name of the defendant, Enrico L. Pacete,
parcel of land situated in the barrio of Langcong,
with an area of 10.9006 hectares, situated at Linao,
Municipality of Matanog (previously of Parang), province of
Matalam, North Cotabato and is also covered by Tax
Maguindanao (previously of Cotabato province) with an
Declaration No. 5745 (74) in the name of Enrico Pacete, as
area of 45,265 square meters registered in the name of
shown on Exhibit "O" and which Enrico Pacete acquired
Enrico Pacete, Filipino, of legal age, married to Conchita
last December 31, 1963 from Eliseo Pugni, as shown on
Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
Exhibit "0-1".

2. A parcel of land covered by Transfer Certificate of Title


3. Ordering the Cancellation of Original Certificate of Title
No. T-20442, with an area of 538 square meters and
No. P-34243 covering Lot No. 1066, issued in the name of
covered by Tax Declaration No. 2650 (74) in the name of
Evelina Pacete, situated at Kiab, Matalam, North Cotabato,
Enrico Pacete, situated in the Poblacion of Kidapawan,
and ordering the registration of the same in the joint name
North Cotabato, together with all its improvements, which
of Concepcion (Conchita) Alanis Pacete and Enrico L.
parcel of land, as shown by Exhibits "K-1" was acquired by
Pacete as their conjugal property, with address on the part
way of absolute deed of sale executed by Amrosio Mondog
of Concepcion (Conchita) Alanis Pacete at Parang,
on January 14, 1965.
Maguindanao and on the part of Enrico L. Pacete at
Kidapawan, North Cotabato.
3. A parcel of land covered by Transfer Certificate of Title
No. T-20424 and covered by Tax Declaration No. 803 (74),
4. Ordering likewise the cancellation of Original Certificate
with an area of 5.1670 hectares, more or less, as shown by
of Title No. V-20101, covering Lot No. 77, in the name of
Exhibit "R", the same was registered in the name of Enrico
Eduardo C. Pacete, situated at New Lawaan, Mlang, North
Pacete and the same was acquired by Enrico Pacete last
Cotabato, and the issuance of a new Transfer Certificate of
February 17, 1967 from Ambag Ampoy, as shown by
Title in the joint name of (half and half) Concepcion
Exhibit "R-1", situated at Musan, Kidapawan, North
(Conchita) Alanis Pacete and Enrico L. Pacete.
Cotabato.

5. Ordering likewise the cancellation of Original Certificate


4. A parcel of land situated at Lanao, Kidapawan, North
of Title No. P-29890, covering Lot 1068, situated at Kiab,
Cotabato, with an area of 5.0567 hectares, covered by Tax
Matalam, North Cotabato, with an area of 12.1031
Declaration No. 4332 (74), as shown by Exhibit "S", and
hectares, in the name of Emelda C. Pacete and the
registered in the name of Enrico Pacete.
issuance of a new Transfer Certificate of Title in the joint
name (half and half) of Concepcion (Conchita) Alanis
5. A parcel of land covered by Transfer Certificate of Title Pacete and Enrico L. Pacete; and declaring that the
No. T-9750, situated at Lika, Mlang, North Cotabato, with fishpond situated at Barrio Tumanan, Bislig, Surigao Del
an area of 4.9841 hectares and the same is covered by Tax Sur, with an area of 48 hectares and covered by Fishpond
Declaration No. 803 (74) and registered in the name of Lease Agreement of Emelda C. Pacete, dated July 29,
Enrico Pacete and which land was acquired by Enrico 1977 be cancelled and in lieu thereof, the joint name of
Pacete from Salvador Pacete on September 24, 1962, as Concepcion (Conchita) Alanis Pacete and her husband,
shown by Exhibit "Q-1". Enrico L. Pacete, be registered as their joint property,
including the 50 hectares fishpond situated in the same
place, Barrio Timanan, Bislig, Surigao del Sur.
CIVIL PROCEDURE RULE 7-9 FULL TEXT
6. Ordering the following motor vehicles to be the joint The provision has been taken from Article 30 of the California
properties of the conjugal partnership of Concepcion Civil Code, 8 and it is, in substance, reproduced in Article 60 of
(Conchita) Alanis Pacete and Enrico L. Pacete, viz: the Family Code. 9

a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Article 101 reflects the public policy on marriages, and it should
Motor No. T137-20561; Chassis No. 83920393, and Type, easily explain the mandatory tenor of the law. In Brown
Mcarrier; v. Yambao, 10 the Court has observed:

b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; The policy of Article 101 of the new Civil
Motor No. T214-229547; Chassis No. 10D-1302-C; and Code, calling for the intervention of the state
Type, Mcarrier; attorneys in case of uncontested
proceedings for legal separation (and of
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; annulment of marriages, under Article 88), is
Motor No. GRW-116188; Chassis No. HOCC-GPW-1161- to emphasize that marriage is more than a
88-C; Type, Jeep; mere contract; that it is a social institution in
which the state is vitally interested, so that its
continuation or interruption can not be made
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford:
to depend upon the parties themselves (Civil
Motor No. F70MU5-11111; Chassis No. HOCC-GPW-
Code, Article 52; Adong vs. Cheong Gee, 43
1161188-G; Type, Stake;
Phil. 43; Ramirez v. Gmur, 42 Phil. 855;
Goitia v. Campos, 35 Phil. 252). It is
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; consonant with this policy that the inquiry by
Motor No. ED300-45758; Chassis No. KB222-22044; Type, the Fiscal should be allowed to focus upon
Stake; and any relevant matter that may indicate
whether the proceedings for separation or
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: annulment are fully justified or not.
Motor No. LTC-780-Dv; Chassis No. 10F-13582-K; Type,
Stake. Article 103 of the Civil Code, now Article 58 of the Family Code,
further mandates that an action for legal separation must "in no
7. Ordering the defendant Enrico L. Pacete to pay the case be tried before six months shall have elapsed since the
plaintiff the sum of P46,950.00 which is the share of the filing of the petition," obviously in order to provide the parties a
plaintiff in the unaccounted income of the ricemill and corn "cooling-off" period. In this interim, the court should take steps
sheller for three years from 1971 to 1973. toward getting the parties to reconcile.

8. Ordering the defendant, Enrico L. Pacete, to reimburse The significance of the above substantive provisions of the law
the plaintiff the monetary equipment of 30% of whether the is further underscored by the inclusion of the following provision
plaintiff has recovered as attorney's fees; in Rule 18 of the Rules of Court:

9. Declaring the subsequent marriage between defendant Sec. 6. No defaults in actions for annulments
Enrico L. Pacete and Clarita de la Concepcion to be of marriage or for legal separation. If the
void ab initio; and defendant in an action for annulment of
marriage or for legal separation fails to
10. Ordering the defendants to pay the costs of this suit. 4 answer, the court shall order the prosecuting
attorney to investigate whether or not a
collusion between the parties exists, and if
Hence, the instant special civil action of certiorari.
there is no collusion, to intervene for the
State in order to see to it that the evidence
Under ordinary circumstances, the petition would have outrightly submitted is not fabricated.
been dismissed, for, as also pointed out by private respondents,
the proper remedy of petitioners should have instead been
The special prescriptions on actions that can put the integrity of
either to appeal from the judgment by default or to file a petition
marriage to possible jeopardy are impelled by no less than the
for relief from judgment. 5 This rule, however, is not inflexible; a
State's interest in the marriage relation and its avowed intention
petition for certiorari is allowed when the default order
not to leave the matter within the exclusive domain and the
is improperly declared, or even when it is properly declared,
vagaries of the parties to alone dictate.
where grave abuse of discretion attended such declaration. 6 In
these exceptional instances, the special civil action
of certiorari to declare the nullity of a judgment by default is It is clear that the petitioner did, in fact, specifically pray for legal
available. 7 In the case at bench, the default order separation. 11 That other remedies, whether principal or
unquestionably is not legally sanctioned. The Civil Code incidental, have likewise been sought in the same action cannot
provides: dispense, nor excuse compliance, with any of the statutory
requirements aforequoted.
Art. 101. No decree of legal separation shall
be promulgated upon a stipulation of facts or WHEREFORE, the petition for certiorari is hereby GRANTED
by confession of judgment. and the proceedings below, including the Decision of 17 March
1980 appealed from, are NULLIFIED and SET ASIDE. No costs.
In case of non-appearance of the defendant,
the court shall order the prosecuting attorney SO ORDERED.
to inquire whether or not a collusion between
the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the
State in order to take care that the evidence
for the plaintiff is not fabricated.
CIVIL PROCEDURE RULE 7-9 FULL TEXT
the adverse party does not appear to be a partly to the
instrument or when compliance with an order for an inspection
of the original instrument is refused." We have however, held
that: ". . . where a case has been tried in complete disregard of
the rule and the plaintiff having pleaded a document by copy,
presents oral evidence to prove the due execution of the
document as well as the agents authority and no objections are
made to the defendants evidence in refutation, the rule will be
considered waived." In the case at bar, the parties acted in
[G.R. No. L-28633. March 30, 1971.] complete disregard of or wholly overlooked the rule above-
quoted. Hodges had neither objected to the evidence introduced
CENTRAL SURETY & INSURANCE COMPANY, Petitioner, v. by petitioner herein in order to prove that Mrs. Mesa had no
C. N. HODGES and THE COURT OF authority to issue a surety bond, much less one in excess of
APPEALS, Respondents. P8,000.00, and took no exception to the admission of said
evidence. Hence, Hodges must be deemed to have waived the
benefits of said rule and petitioner herein cannot be held liable
SYLLABUS in excess of the sum of P8,000.00

1. CIVIL LAW; SPECIAL CONTRACTS; AGENCY; GENERAL


POWERS; EXTINGUISHMENT; REVOCATION; PUBLICATION CONCEPCION, C.J.:
THEREOF REQUIRED; CASE AT BAR Article 1922 of our
Civil Code provides: If the agent had general powers, revocation
of the agency does not prejudice third person who acted in good Appeal by certiorari from a decision of the Court of Appeals, the
faith and without knowledge of the revocation. Notice of the dispositive part of which reads as follows:jgc:chanrobles.com.ph
revocation in a newspaper of general circulation is a sufficient
warning to third persons." It is not disputed that petitioner has "WHEREFORE, in view of the foregoing considerations, the
not caused to be published and, notice of the revocation of Mrs. decision appealed from is modified and judgment is hereby
Mesas authority to issue surety bonds on its behalf, rendered against Central Surety & Insurance
notwithstanding the fact that the powers of Mrs. Mesa, as its Company:jgc:chanrobles.com.ph
branch manager in Iloilo, were of a general nature, for she had
exclusive authority, in the City of Iloilo, to represent petitioner "(a) To pay plaintiff C. N. Hodges the sum of P17,826.08 with
herein, not with a particular person, but with the public in interest thereon at the rate of 12% per annum from October 24,
general "in all the negotiations, transactions, and business 1955 until fully paid;"
wherein the Company may lawfully transact or engage in,"
subject only to the restrictions specified in their agreement, copy (b) To pay plaintiff C. N. Hodges the sum of P1,551.60 as
of which was attached to petitioners answer as Annex 3. attorneys fees; and
Contrary to petitioners claim, Article 1922 applies whenever an
agent has general powers not merely when the principal has (c) To pay the costs."cralaw virtua1aw library
published the same, apart from the fact that the opening of
petitioners branch office amounted to a publication of the grant The main facts are not disputed. Prior to January 15, 1954, lots
of powers to the manager of said office. Then, again, by Nos. 1226 and 1182 of the Cadastral Survey of Talisay, Negros
honoring several surety bonds issued in its behalf by Mrs. Mesa Occidental, had been sold by C N. Hodges to Vicente M.
subsequently to March 15, 1952, petitioner induced the public to Layson, for the sum of P43,000.00, payable on installments. As
believe that she had authority to issue such bonds. As a of January 15, 1954, the outstanding balance of Laysons debt,
consequence, petitioner is now estopped from pleading, after deducting the installments paid by him prior thereto,
particularly against a regular customer thereof, like Hodges, the amounted to P15,516.00. In order that he could use said lots as
absence of said authority. security for a loan he intended to apply from a bank, Layson
persuaded Hodges to execute in his (Laysons) favor a deed of
2. INSURANCE; CLAIMS; ACTION; PRESCRIPTION. absolute sale over the properties, with the understanding that he
Petitioner maintains that, having been instituted on October 24, would put up a surety bond to guarantee the payment of said
1955 or nine (9) months after the expiration of petitioner s balance. Accordingly, on the date above mentioned, Layson
surety bond on January 23, 1955 the present action is barred executed, in favor of Hodges, a promissory note for P15,516.00,
by the provision in said bond to the effect that it: ". . . will not be with interest thereon at the rate of 1% per month, and the sum
liable for any claim not discovered and presented to the of P1,551.60, for attorneys fees and costs, in case of default in
Company within three (3) months from the expiration of this the payment of the principal or interest of said note. To
bond and that the obligee hereby waives his right to file any guarantee the same, on January 23, 1954, the Central Surety
court action against the surety after the termination of the period and Insurance Company hereinafter referred to as petitioner
of three months above-mentioned." Interpreting an identical through the manager of its branch office in Iloilo, Mrs. Rosita
provision, this Court has, however, held "that the three-month Mesa, executed in favor of Hodges the surety bond Annex B,
period" prescribed therein "established only a condition which was good for twelve (12) months from the date thereof.
precedent, not a limitation of action." and that, when a claim
has been presented within said period, the action to enforce the When Layson defaulted in the discharge of his aforesaid
claim may be "filed within the statutory time of prescription." This obligation, Hodges demanded payment from the petitioner,
view was clarified in a subsequent case, in the sense that the which, despite repeated extensions of time granted thereto, at
above-quoted provision was." . . merely interpreted to mean that its request, failed to honor its commitments under the surety
presentation of the claim within three months was a condition bond. On October 24, 1955, Hodges commenced, therefore, the
precedent to the filing of a court action. Since the obligee in said present action, in the Court of First Instance of Iloilo, against
case presented his claim seasonably although it did not file the Layson and petitioner herein, to recover from them, jointly and
action within the same period, this Court ruled that the severally, the sums of P17,826.08, representing the principal
stipulation in the bond concerning the limitation being and interest due up to said date, and P1,551.60, as attorneys
ambiguous the ambiguity should be resolved against the surety, fees. In his answer to the complaint, Layson admitted the formal
which drafted the agreement, and that the action could be filed allegations and denied the other allegations thereof.
within the statutory period of prescription."cralaw virtua1aw
library Having failed to file its answer within the reglementary period,
the petitioner was, on January 18, 1956, declared in default.
3. REMEDIAL, LAW; CIVIL, PROCEDURE; ALLEGATIONS; When the case was called for trial, insofar as Layson was
DOCUMENTS; RULE WHEN NO OBJECTION MADE; concerned, the latter did not appear, and Hodges was allowed to
RATIONALE; CASE AT BAR. It is true that, pursuant to introduce his evidence. Then the trial court rendered a partial
Section 8 of Rule 8 of the Rules of Court: "When an action or decision against Layson, petitioner having, in the meantime,
defense is founded upon a written instrument, copied in or filed a motion to set aside the order of default, which motion was
attached to the corresponding pleading as provided in the still pending resolution. Thereafter, said motion was denied, and
preceding section the genuineness and due execution of the upon presentation of the evidence of Hodges against herein
instrument shall be deemed admitted unless the adverse party, petitioner, judgment was rendered against the latter as prayed
under oath specifically denies them, and sets forth what he for in the complaint. Thereupon, petitioner filed a motion for
claims to be the facts; but this provision does not apply when reconsideration and a motion for relief under Rule 38. Acting
CIVIL PROCEDURE RULE 7-9 FULL TEXT
thereon, His Honor, the trial Judge, later set aside its decision the principal may yet subsequently see fit to recognize and
against the petitioner and admitted its answer, attached to the adopt the act as his own. Ratification being a matter of assent to
motion to set aside the order of default. and approval of the act as done on account of the person
ratifying, any words or acts which show such assent and
In its answer, petitioner disclaimed liability under the surety bond approval are ordinarily sufficient. (Sta. Catalina v. Espitero, CA-
in question, upon the ground (a) that the same is null and void, it G.R. No. 27075-R, April 28, 1964, citing IV Padilla, CIVIL CODE
having been issued by Mrs. Rosita Mesa after her authority 1959 ed., pp. 478-479; Roxas v. Villanueva, CA-G.R. No.
therefor had been withdrawn on March 15, 1952; (b) that even 18928-R, June 20, 1958). Moreover. the revocation of agency
under her original authority, Mrs. Mesa could not issue surety does not prejudice third persons who acted in good faith without
bonds in excess of P8,000.00 without the approval of knowledge of the revocation. (Joson v. Garcia, CA-G.R. No.
petitioners main office, which was not given to the surety bond 29336-R, Nov. 19, 1962)."cralaw virtua1aw library
in favor of Hodges; and (c) that the present action is barred by
the provision in the surety bond to the effect that all claims and Indeed, Article 1922 of our Civil Code
actions thereon should be filed within three (3) months from the provides:jgc:chanrobles.com.ph
date of its expiration on January 23, 1955. Petitioner, moreover,
set up a counterclaim for damages. "If the agent had general powers, revocation of the agency does
not prejudice third persons who acted in good faith and without
In due course, thereafter, the trial court rendered a knowledge of the revocation. Notice of the revocation in a
decision:jgc:chanrobles.com.ph newspaper of general circulation is a sufficient warning to third
persons."cralaw virtua1aw library
"a) Condenando a la demanda Central Surety & Insurance Co.
que pague al demandante la desde la P8,000.00 con intereses It is not disputed that petitioner has not caused to be published
legales a contar desde la fecha de la demanda 24 de any notice of the revocation of Mrs. Mesas authority to issue
Octubre de 1955; surety bonds on its behalf, notwithstanding the fact that the
powers of Mrs. Mesa, as its branch manager in Iloilo, were of a
"b) Condenando a la misma demanda que pague al general nature, for she had exclusive authority, in the City of
demandante la suma de P600.00 en concepto de honorarios de Iloilo, to represent petitioner herein, not with a particular person,
abogado; y but with the public in general, "in all the negotiations,
transactions, and business wherein the Company may lawfully
"c) Condenando, ademas, a la misma demanda que pague las transact or engage in," subject only to the restrictions specified
costas del juicio."cralaw virtua1aw library in their agreement. copy of which was attached to petitioners
answer as Annex 3. 1 Contrary to petitioners claim, Article 1922
Hodges appealed to the Court of Appeals (CA-G.R. No. L- applies whenever an agent has general powers, not merely
24684-R) from this decision, insofar as it limited petitioners when the principal has published the same, apart from the fact
liability to P8,000.00. Petitioner, also, appealed to said Court that the opening of petitioners branch office amounted to a
upon the ground that the trial court had erred: a) in holding publication of the grant of powers to the manager of said office.
petitioner liable under a contract entered into by Its agent in Then, again, by honoring several surety bonds issued in its
excess of her authority; (b) in sentencing petitioner to pay behalf by Mrs. Mesa subsequently to March 15, 195 2, petitioner
Hodges the sum of P8.000.00 with interest thereon, in addition induced the public to believe that she had authority to issue
to attorneys fees and the costs; and (c) in "not awarding" such bonds. As a consequence, petitioner is now estopped from
petitioners counterclaim. pleading, particularly against a regular customer thereof, like
Hodges, the absence of said authority.
After appropriate proceedings, the Court of Appeals rendered
the decision above referred to, from which petitioner has Let us now take up the third assignment of error and defer, until
appealed to this Court, alleging that the Court of Appeals has after the same has been disposed of, the consideration of the
erred: (1) in finding that petitioner "was liable on a bond issued second assignment of error.
by an agent whose authority . . . had already been withdrawn
and revoked" ; (2) "in applying the rule on implied admission by Under the third assignment of error, petitioner maintains that,
reason of failure to deny under oath the authenticity of a having been instituted on October 24, 1955 or nine (9)
pleaded document" and (3) "in not considering the legal effect of months after the expiration of petitioners surety bond on
the waiver contained in the disputed bond and in not disposing January 23, 1955 the present action is barred by the
of this case under the light of such waiver."cralaw virtua1aw provision in said bond to the effect that it:jgc:chanrobles.com.ph
library
". . . will not be liable for any claim not discovered and presented
The first assignment of error is predicated upon the fact that to the Company within three (3) months from the expiration of
prior to January 23, 1954, when the surety bond involved in this this bond and that the obligee hereby waives his right to file any
case was executed, or on March 15, 1952, petitioner herein had court action against the surety after the termination of the period
withdrawn the authority of its branch manager in the City of of three months above-mentioned."cralaw virtua1aw library
Iloilo, Mrs. Rosita Mesa, to issue, inter alia, surety bonds and
that, accordingly, the surety bond, copy of which was attached to Interpreting an identical provision, 2 this Court has, however,
the complaint as Annex B, is null and void. On this point, the held "that the three-month period" prescribed therein
Court of Appeals had the following to say:jgc:chanrobles.com.ph "established only a condition precedent, not a limitation of
action," and that, when a claim has been presented within said
". . . we are of the opinion that said surety bond is valid. In the period, the action to enforce the claim may be "filed within the
first place, there appears to be no showing that the revocation of statutory time of prescription." This view was clarified in a
authority was made known to the public in general by subsequent case, 3 in the sense that the above-quoted
publication, nor was Hodges notified of such revocation despite provision was." . . merely interpreted to mean that presentation
the fact that he was a regular client of the firm. And even if of the claim within three months was a condition precedent to
Hodges would have inquired from Mrs. Mesa as to her authority the filing of a court action. Since the obligee in said case
to issue said bond, we doubt if she would disclose the contents presented his claim seasonably although it did not file the action
of the letter of March 15, 1952 in view of Central Suretys claim within the same period, this Court ruled that the stipulation in the
that she was committing irregularities in her remittances to the bond concerning the limitation being ambiguous, the ambiguity
main office. Secondly, some surety bonds issued by Mrs. Mesa should be resolved against the surety, which drafted the
in favor of Hodges after her authority had allegedly been agreement, and that the action could be filed within the statutory
curtailed, were honored by the Central Surety despite the fact period of prescription." 4
that these were not reported to the main office at the time of
their issuance. These accounts were paid on January 31, 1957, In the case at bar, it is not contended that Hodges had not
to wit: Felicito and Libertad Parra issued on August 16, 1952; presented his claim within three (3) months from January 23,
Estrella Auayan issued on November 16, 1953; Dominador 1955. In fact, he had repeatedly demanded from petitioner
Jordan issued on August 26, 1953; and Ladislao Lachica issued herein compliance with its obligations under the surety bond in
on February 28, 1953. (Exhs. F, G, H, I and J). By these acts question, and, in reply to such demands, petitioner asked
Central Surety ratified Mrs. Mesas unauthorized acts and as extensions of time, on January 29, February 16, March 15, May
such it is now estopped from setting forth Mrs. Mesas lack of 3, June 16, July 1 and 15, and October 15, 1955. 5 After thus
authority to issue surety bonds after March 15, 1952. It has securing extensions of time, even beyond three (3) months from
been held that although the agent may have acted beyond the January 23, 1955, petitioner cannot plead the lapse of said
scope of his authority, or may have acted without authority at all, period to bar the present action.
CIVIL PROCEDURE RULE 7-9 FULL TEXT
objected to the evidence introduced by petitioner herein in order
The second assignment of error assails the finding of the Court to prove that Mrs. Mesa had no authority to issue a surety bond,
of Appeals to the effect that the petitioner is liable for the full much less one in excess of P8,000.00, and took no exception to
amount of surety bond despite the fact that it exceeded the the admission of said evidence. Hence, Hodges must be
sum of P8,000.00 and hence, required, for its validity and deemed to have waived the benefits of said rule and petitioner
binding effect as against petitioner herein, the express approval herein cannot be held liable in excess of the sum of P8,000.00.
and confirmation of its Manila office, which were not secured
in view of petitioners failure to deny under oath the genuineness WHEREFORE, with the modification that petitioners liability to
and due execution of said bond, copy of which was attached to Hodges is limited to said sum of P8,000.00 the period, the
the complaint. It is true that, pursuant to section 8 of Rule 8 of petitioner was, on January 18, 1956, declared it is hereby
the Rules of Court:jgc:chanrobles.com.ph affirmed in all other respects, without costs. It is so ordered.

"When an action or defense is founded upon a written


instrument, copied in or attached to the corresponding pleading
as provided in the preceding section, the genuineness and due
execution of the instrument shall be deemed admitted unless
the adverse party, under oath, specifically denies them, and sets
forth what he claims to be the facts; but this provision does not
apply when the adverse party does not appear to be a party to
the instrument or when compliance with an order for an
inspection of the original instrument is refused."cralaw virtua1aw
library

We have however, held that:jgc:chanrobles.com.ph

". . . where a case has been tried in complete disregard of the


rule and the plaintiff having pleaded a document by copy,
presents oral evidence to prove the due execution of the
document as well as the agents authority and no objections are
made to the defendants evidence in refutation, the rule will be
considered waived." 6

The reason for such view was explained by this Court as


follows:jgc:chanrobles.com.ph

"Before entering upon a discussion of the questions raised by


the assignments of error, we may draw attention to a matter
which has not been mentioned either by counsel or by the court
below, but which, to prevent misunderstanding, should be briefly
explained: It is averred in the complaint that it is accompanied
by a copy of the contract between the parties (Exhibit A) which
copy, by the terms of the complaint, is made a part thereof. The
copy is not set forth in the bill of exceptions and aside from said
averment, there is no indication that the copy actually
accompanied the complaint, but an examination of the record of
the case in the Court of First Instance shows that a translation of
the contract was attached to the complaint and served upon the
defendant. As this translation may be considered a copy and as
the defendant failed to deny its authenticity under oath, it will
perhaps be said that under section 103 of the Code of Civil
Procedure the omission to so deny it constitutes an admission of
the genuineness and due execution of the document as well as
of the agents authority to bind the defendant. (Merchant v.
International Banking Corporation, 6 Phil. 314.)

"In ordinary circumstances that would be true. But this case


appears to have been tried upon the theory that the rule did not
apply; at least, it was wholly overlooked or disregarded by both
parties. The plaintiffs at the beginning of the trial presented a
number of witnesses to prove the due execution of the
document as well as the agents authority; no objections were
made to the defendants evidence in refutation and no
exceptions taken; and the matter is not mentioned in the
decision of the trial court.

"The object of the rule is to relieve a party of the trouble and


expense of proving in the first instance an alleged fact, the
existence or nonexistence of which is necessarily within the
knowledge of the adverse party, and of the necessity (to his
opponents case) of establishing which such adverse party is
notified by his opponents pleading. (Nery Lim-Chingco v.
Terariray, 5 Phil., at p. 124.)

"The plaintiff may, of course, waive the rule and that is what he
must be considered to have done in the present case by
introducing evidence as to the execution of the document and
failing to object to the defendants evidence in refutation; all this
evidence is now competent and the case must be decided
thereupon. . . .. Nothing of what has here been said is in conflict
with former decisions of this court; it will be found upon
examination that in all cases where the applicability of the rule
has been sustained the party invoking it has relied on it in the
court below and conducted his case accordingly." 7

In the case at bar, the parties acted in complete disregard of or


wholly overlooked the rule above-quoted. Hodges had neither
CIVIL PROCEDURE RULE 7-9 FULL TEXT
December 8, 1969. The record was remanded and was received
in the lower court on March 25, 1970. Notices to that effect were
sent to Attys. Pacifica Garcia and Yuseco, the parties' counsels
of record.

6. On May 30, 1970 a writ of execution was issued by the lower


court. The Sheriff levied upon five freight trucks and an adding
machine owned by Kuy Guam Kay, Ltd. He scheduled the
G.R. No. L-32547 May 9, 1978 auction sale on June 26, 1970. Instead of guarding the trucks
and adding machine, the sheriff allowed the manager of the firm
CONCHITA CORTEZ, ELENA CORTEZ, ROSENDO CORTEZ, to have custody thereof so that they could be used in the firms
JUDINA CORTEZ and FERNANDO CORTEZ,petitioners, business. On June 26, two trucks and the adding machine were
vs. turned over to the plaintiffs. The other three trucks were
HON. COURT OF APPEALS, HON. JUDGE FELIX R. sequestered away by the manager of defendant firm.
DOMINGO of Branch XV, Court of First Instance of Manila,
THE SHERIFF, City of Manila, SPECIAL SHERIFF 7. On June 23, 1970 defendant firm, through a new lawyer, filed
REYNALDO JAVIER, KUY GUAM KAY, LTD. and MACARIO in the Court of Appeals a motion for reconsideration and
SUPAN Y MERCADO, respondents. suspension of execution. It alleged that there was no valid
service of the decision upon it; that the decision is contrary to
the ruling in Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA
1062 (that the acquittal of the accused of the crime of homicide
AQUINO, J: through reckless imprudence is a bar to the civil liability), and
that the increase of the damages from P4,000 to P12,000 was
unwarranted since the plaintiffs did not appeal
This case is about the propriety of the service of a decision of
the Court of Appeals upon appellants' lawyer, who that he had
ceased to be their counsel but who was not authorized to 8. The Court of Appeals in its resolution of July 1, 1970 set aside
withdraw from the case. the entry of judgment, ordered the lower court to elevate the
record of the case and required plaintiffs Cortez to comment on
the motion for reconsideration. The a opposed the motion. The
The question is whether, after the had been remanded to the
record was re-elevated to the Court of Appeals.
trial court and after a writ of execution had been issued, the
Court of Appeals could still set aside that decision on the theory
that it did not become final because it had not been properly 9. On August 18, 1970 the Court of Appeals issued a resolution
served upon the appellants. setting aside its decision of November 17, 1969 and damaging
the complaint on the basis of the said ruling in Corpus vs.
Paje, supra. Plaintiffs' motion for the reconsideration of that
1. On August 12, 1960, Judge E. Soriano of the Court of First
decision was denied.
Instance of Manila rendered a decision ordering defendants Kuy
Guam Kay, Ltd. and Macario Supan to pay solidarily the sum of
four thousand pesos as damages to the plaintiffs, the heirs of 10. On September 21, 1970, the plaintiffs filed the petition for
Severino Cortez (Civil Case No. 34092). The court found that, certiorari the Court of Kuy Guam Kay, Ltd. (which had been
due to the driver's negligence, a truck owned by Kuy Guam Kay, succeeded by Seven-O-Seven Trucking Co., Inc.) and Macario
Ltd. and driven by Macario Supan on August 20, 1957, hit and Supan (who allegedly died in 1962, pp. 150 and 164 of Rollo).
killed Severino Cortez in Misericordia Street, Sta. Cruz, Manila. The petition is really an appeal from the resolution of August 18,
1970. After the petitioners had posted a bond in the sum of
P500, this Court issued a writ of preliminary injunction dated
2. Defendants Kuy Guam Kay, Ltd. and Supan appealed to the
September 30, 1970 to restrain the enforcement of that
Court of Appeals (CA-G.R. No. 28400-R). During the pendency
resolution. Because of that injunction, the petitioners retained
of that appeal Judge Luis B. Reyes of the Court of First Instance
the possession of the adding machine and the two trucks (p.
of Manila in his decision dated June 12, 1961 in Case No.
203, Rollo).
41549 acquitted Supan of homicide through reckless
imprudence.
The petition is meritorious. We hold that the Court of Appeals
had no jurisdiction to set aside on August 18, 1970 its decision
3. Because of that acquittal Kuy Guam Kay, Ltd. and Supan filed
of November 17, 1969 which had become final and was in the
petition in the Court of Appeals dated July 14, 1961 and March
process of being executed in the lower court to which the record
26, 1966 to re-open Civil Case No. 34092 so that the judgment
was remanded after entry of judgment had been made in the
of acquittal could be presented in evidence. The latter petition
Court of Appeals.
was denied on June 15, 1966.

The 1969 decision became final and executory as to defendant-


4. On November 17, 1969 the Court of Appeals rendered a
appellant Kuy Guam Kay, Ltd. because its lawyer of record, Atty.
decision the judgment of the lower court in Civil Case No. 34092
Yuseco, was duly served with a copy of that decision. It is true
with the modification that the amount of damages was increased
that Atty. Yuseco returned that copy to the Court with the note
to P12,000. A copy of that decision was served on November
that he was no longer appellants' counsel but that return did not
21, 1969 on Atty. Joaquin C. Yuseco, the defendants-appellants'
nullify the effectiveness of the service upon him since he did not
counsel of record. However, Atty. Yuseco returned that copy and
retire from the case with his client's consent or with the Court's
informed the Court by letter that he had ceased to be the lawyer
authorization (Sec. 2, Rule 13 and Sec. 26, Rule 138, Rules of
for defendants-appellants Supan and Kuy Guam Kay, Ltd. The
Court; Don Lino Gutierrez & Sons, Inc. vs. Court of Appeals and
Court of Appeals in its resolution of January 13, 1970 noted
Alvendia, L-39124, November 15, 1974, 61 SCRA 87, 91;
Yuseco's letter and made the observation that Yuseco had "not
Magpayo vs. Court of Appeals and People, L-35966, November
filed any formal motion for the withdrawal of his appearance" in
19, 1974, 61 SCRA 115; Baquiran vs. Court of Appeals, 112
that case. The Court of Appeals then sent copies of the decision
Phil. 764; Guanzon vs. Aragon, 107 Phil. 315, 320).
to the defendant-appellants themselves by registered mail but
the copies were not delivered because they were unclaimed.
When a party is represented by an attorney, service of orders
and notices must be made upon the latter, and notice to the
5. Thereafter, there was an entry of judgment indicating that the
decision of the Court of Appeals became final and executory on
CIVIL PROCEDURE RULE 7-9 FULL TEXT
client and not to his lawyer of record is not a notice in law Court of First Instance of Misamis Occidental at Oroquieta City,
(Chairman vs. Tancinco, 90 Phil. 862). runs as follows:

Thus, it was held that, unless the procedure prescribed in AMICABLE COMPROMISE AGREEMENT
section 26 of Rule 138 is complied with, the attorney of record is
regarded as the counsel who should be served with copies of COME NOW the parties, assisted by their respective
the judgments, orders and pleadings and who should be held counsels, and to this Honorable Court, respectfully submit
responsible for the conduct of the case (Fojas vs. Navarro, L- this AMICABLE COMPROMISE AGREEMENT to be made
26365, April 30, 1970, 32 SCRA 476, 485). as basis for the Decision in the above-entitled case, to wit:

"In order that there may be substitution of attorneys in a given 1. That private respondent Nazario Clarence Jureidini is
case, there must be (1) written application for substitution; (2) a now of legal age and is not suffering from any incapacity to
written consent of the client, and (3) a written consent of the enter into a contract, and that he has entered into this
attorney to be substituted. And in case the consent of the agreement in his own personal capacity,
attorney to be substituted cannot be obtained, there must at
least be proof that notice of the motion for substitution has been
2. That the parties have agreed to settle and terminate this
served upon him in the manner prescribed by our rules." Where
case No. G.R. No. L-39958 before this Honorable Court,
the procedure for substitution of attorney is not followed, the
including the case under CA-G.R. No. 40441-R, Court of
attorney who appears to be on record before the filing of the
Appeals, and Civil Case No. OZ (118), Court of First
application for substitution should be regarded as the attorney
Instance, Branch II, Misamis Occidental;
entitled to be served with all notices and pleadings and the client
is answerable for the shortcomings of this counsel of record.
(Ramos vs. Potenciano, 118 Phil. 1435). 3. That for and in consideration of this amicable
compromise agreement, the parties have agreed that
petitioner Jesus D. Jureidini shall pay, as in fact he has
The counsel of record is obligated to protect his clients interest
already paid to private respondent Nazario Clarence
until he is released from his professional relationship with his
Jureidini the amount of ONE HUNDRED THOUSAND
client. For its part, the court could recognize no other
PESOS (P100,000.00), Philippine Currency;
representation on behalf of the client except such counsel of
record until a formal substitution of attorney is effected. (Wack
Wack Golf and Country Club, Inc. vs. Court of Appeals, 106 Phil. 4. That private respondent Nazario Clarence Jureidini does
501, 504). hereby acknowledge receipt, to his entire satisfaction, of
the aforesaid sum of ONE HUNDRED THOUSAND PESOS
(P100,000.00), Philippine Currency, from petitioner;
It is noteworthy that in the instant case even after Atty. Yuseco
had returned to the Court the copy of the decision served upon
him, the Appellate Court and the lower court continued to serve 5. That by virtue of the agreement, private respondent
copies of orders and resolutions upon him as defendants' Nazario Clarence Jureidini does hereby renounce,
counsel of record without any objection on his part. He was repudiate, waive and quitclaim, now and moreover, in favor
responsible for the conduct of the case since he had not been of petitioner Jesus D. Jureidini whatever rights, interests,
properly relieved as counsel of record of the appellants (See U. claims, title, and participations he has in the estate, real
S. vs. Borromeo, 20 Phil. 189; Olivares and Colegio de San personal and/or whatever nature, left by the deceased
Jose vs. Leola, 97 Phil. 263, 257). Nazario S. Jureidini;

WHEREFORE, the resolution of the Court of Appeals dated 6. The parties do hereby agree to waive, relinquish and
August 18, 1970 is reversed and set aside with costs against abandon, whatever claims and counterclaims they have
respondent firm. SO ORDERED. against each other in the aforesaid cases.

G.R. No. L-39958 May 11, 1978 WHEREFORE, it is respectively prayed that judgment be
rendered in accordance with this Amicable Compromise
Agreement, without costs.
JESUS D. JUREIDINI, petitioner,
vs.
THE COURT OF APPEALS and NAZARIO CLARENCE At Oroquieta City (for Manila), August 2, 1976.
JUREIDINI, represented by his mother LUZ
RODRIGUEZ, respondents. (SGD) NAZARIO-CLARENCE JUREIDINI Private
Respondent Plaridel. Misamis Occidental

(SGD) JESUS D. JUREIDINI Petitioner Ozamis City


MAKASIAR, J.:
WITH OUR ASSISTANCE
Within the extended period for petitioner to file his brief in the
above-entitled case, private respondent, thru his counsel, Atty. (SGD) LUISITO S. VILLANUEVA
Luisito Villanueva, simultaneously filed before this Court, on Counsel for Private Respondent
August 5, 1976, an amicable compromise agreement and an Calamba, Misamis Occidental
appearance, both dated August 2, 1976, furnishing a copy PTRNo. 3395909
thereof to each of the counsel of record of petitioner, and to January 2, 1976
Attys. Estanislao A. Fernandez, Arroyo, Acsay, Barin and Ortile Calamba, Mis. Occ.
and Sisenando Villaluz Law Office, Suit 804 JMT Bldg., Ayala TAN No. 2638380-2
Avenue, Makati, Metro Manila counsel for private respondent
(pp. 381, 383-385, rec.). The amicable compromise agreement CONRADO V. SANCHEZ
which was signed by Nazario Clarence Jureidini, private and
respondent, assisted by his counsel, Luisito S. Villanueva, and FELIPE G. TAC-AN
by Jesus D. Jureidini, petitioner, assisted by his counsel, Counsel for Petitioner
Conrado V. Sanchez and Felipe G. Tac-an, and verified under By:
oath before Hon. Melecio A. Genato, Presiding Judge, Branch 1,
CIVIL PROCEDURE RULE 7-9 FULL TEXT
(SGD) FELIPE G, TAC-AN approval of the compromise agreement, stating among other
Oroquieta City things that the compromise, agreement "is not only immoral and
PTR No. 7791769 T- entered (into) in bad faith by petitioner and private respondent
Jan 13/76 but also patently unconscionable, inequitous and an unjust.
Oroquieta City action to the prejudice of all the lawyers who had rendered legal
TAN No. 1556-436-2 services since 26 March 1976 and that even assuming Nazario
Clarence Jureidini did not enter into any contract with the
Acting on the aforequoted compromise agreement, Attys. attorneys of record, he (,cannot disregard the legal services
Estanislao A. Fernandez, Arroyo, Acsay, Barin and Ortile and rendered in his behalf and for which he has wholly benefited,"
Sisenando Villaluz Law Office, filed with this Court on August 19, and praying further that a be appointed to receive the evidence
1976, a manifestation and motion stating, among other things: for attorney's fees and to approve. the same as charging lien on
(a) that the appearance of Atty. Luisito S. Villanueva as counsel the Testate Estate of Nazario Jureidini.
for respondent Nazario Clarence Jureidini is without their
knowledge and consent; and (b) that they have no knowledge Considering the reply of Atty. Estanislao Fernandez, Arroyo,
intervention or inkling of the amicable settlement executed by Acsay, Barin and Ortile to the comment of Atty. Luisito S.
and between the petitioner and aforesaid respondent, with Villanueva to the former's manifestation and motion dated
prayer that they be given thirty (30) days from August 19, 1976 August 19, 1976, this Court in its Resolution dated November
within which to file the necessary comment, pleading or motion 10, 1976, required private respondent Nazario Clarence
with respect to said amicable settlement, and pending the filing Jureidini at Plaridel, Misamis Occidental was returned to this
of such comment, any action on the agreement be held in Court with the information that addressee is no longer residing
abeyance. at Plaridel, Misamis Occidental. Accordingly this Court, in a
resolution dated January 26, 1977, resolved;: (a) to advise Atty.
The Court, per Its resolution of September 1, 1976 required: (1) Estanislao Fernandez, et al. that The aforesaid respondent no
the movants to furnish Atty. Villanueva with a copy of said longer residing at his last known address; and (b) to require
manifestation and motion and to submit to this Court proof of aforesaid counsel to inform this Court within five (5,) days from
such service, both within five (5) days from notice thereof; and notice, of the present address of aforesaid respondent Nazario
(2) Atty. Villanueva to comment thereon within ten (10) days Clarence Jureidini. Complying with the immediately preceding
from receipt of said copy. resolution, Atty. Estanislao Fernandez, et al. informed this Court
that the present address of private respondent Nazario Clarence
Jureidini is as follows:
On October 5, 1976, Atty. Luisito S. Villanueva filed his comment
to manifestation and motion, stating among other things
Nazario Clarence Jureidini
2. That the private respondent Nazario Clarence Jureidini
sometime on August 2, 1976, engaged the legal services c/o Luz Rodriguez
of the undersigned for the purpose of drafting, preparing
and participating in the execution of the amicable No. 339 Younger Street
settlement which said private respondent and the
petitioner had already arrived at and concluded, as a Balut, Tondo, Manila
matter of fact, the monetary consideration mentioned in
the Amicable Compromise Agreement had already been
Acting on the compliance by counsel for respondent Nazario
paid prior to August 2, 1976, par. 3, of the Amicable
Clarence Jureidini aforesaid, this Court resolved on February
Compromise Agreement.
28, 1977, to send to respondent at the above given address, the
resolution of this Court dated November 10, 1976 requiring him
3. That the undersigned had inquired from the private to file rejoinder to the reply of Atty. Estanislao Fernandez, et al.
respondent as to whether his previous counsel or
counsels has knowledge of the said settlement, and the
For failure of private respondent Nazario Clarence Jureidini to
latter informed the former that he has not engaged and
file a rejoinder to the reply of Atty. Estanislao Fernandez, et al. to
contracted the services of any counsel at any time,
the comment of Atty. Luisito S. Villanueva to the former's
however, he declared that his mother did, but their legal
manifestation and motion dated August 19, 1976, within the
services were already fully compensated, and that he
period which expired on March 19, 1976, the Court resolved on
further declared that he wants and desires to engage a
May 10, 1977 to require aforesaid respondent; (a) to show
counsel of his own choice;
cause why he should not be held in contempt for such failure;
and (b) to comply with the resolution of November 10, 1976
4. That having known the private respondent Nazario requiring said rejoinder, both within ten (10) days from notice
Clarence Jureidini to be of legal age and that he was not thereof.
suffering from any incapacity to enter into a contarct, and
further knowing that the contract he will enter into is not
For willful disregard of the resolution of this Court of May 20,
contrary to law, morals or public policy, the undersigned
1977 which required private respondent Nazario Clarence
accepted the request of private respondent to be his
Jureidini to show cause why he should not be held in contempt
counsel in the execution of the said Amicable
of court for having failed to file a rejoinder to the reply dated
Compromise Agreement and its consequent approval by
November 3, 1976 of Attys. Estanislao Fernandez, Arroyo,
this Honorable Court;
Acsay, Barin and Ortile and to comply with the resolution of
November 10, 1976 requiring said rejoinder both within the
5. That consequently, on the same date of August 2, period which expired on June 9, 1977, the Court adjudged said
1976, when the Amicable Compromise Agreement was respondent Jureidini guilty of contempt of court and ordered cell
entered into by the parties in the City of Oroquieta, the of the National Bureau of Investigation until he shall have
undersigned formally filed his appearance with this complied with this Court's resolutions. Forthwith, this Court
Honorable Court, with the consent and authority of the issued on the same day an "Order of Arrest and Commitment",
private respondent as may be shown therein. ... commanding the Director, National Bureau of Investigation, Taft
Avenue Manila, "to arrest Nazario Clarence Jureidini who is said
In reply to the foregoing comment of Atty. Luisito S. Villanueva, to be found at No. 339 Younger Street, Balut, Tondo, Manila (c/o
Attys. Estanislao Fernandez, Arroyo, Acsay, Barin and Ortile Luz Rodriguez) ... and to commit him to the detention cell of the
filed on November 4, 1976 a motion to hold in abeyance
CIVIL PROCEDURE RULE 7-9 FULL TEXT
NBI where he shall be detained and safely kept until he has fully The compromise agreement hereinabove reproduced is not
complied with the resolutions of this Court... . contrary to law, morals, public order or public policy, and
provides for the full satisfaction of respondent's claim against
On January 12, 1978, Sr. NBI Agent Jesus S. Caragan of the the petitioner.
National Bureau of Investigation returned to this Court the order
of arrest and commitment, UNSERVED, with the information WHEREFORE, THE AMICABLE COMPROMISE AGREEMENT
that subject cannot be located at the aforementioned address DATED AUGUST 12, 1976 IS HEREBY APPROVED, AND THE
and his present whereabouts are not known. PARTIES ARE HEREBY DIRECTED TO ABIDE BY AND
COMPLY WITH THE TERMS THEREOF.
While this Court, in the meantime, was awaiting compliance by
private respondent Nazario Clarence Jureidini of the resolution THIS CASE IS HEREBY CLOSED AND TERMINATED. NO
of November 10, 1976, one Manuel T. Cortez of Ozamis City COSTS.
filed before this Court a petition for intervention praying, inter-
alia, that he be allowed to intervene and file his claim against
the private respondent for all his financial aid extended to him
during the pendency and prosecution of his claim in the trial
court and in the Court of Appeals againsts the Testate Estate of
Nazario Jureidini; and that the approval of petitioner's
compromise agreement entered into with private respondent
Nazario Clarence Jureidini, on March 7, 1974. Among other
things, said memorandum of agreement provides that to
reimburse Cortez for the expenses incurred to prosecute and
defend the case including the professional fee of her lawyer
together with the interest charged thereon, the parties (petitioner
and Luz Rodriguez) agreed that in the event this case is finally
terminated and won, Luz Rodriguez would pay Cortez: [G.R. No. 129718. August 17, 1998]

ONE-HALF (1/2) PORTION OF THE TOTAL SANTO TOMAS UNIVERSITY HOSPITAL, petitioner
SHARE OF THE FIRST PARTY OF THE vs. CESAR ANTONIO Y. SURLA and EVANGELINE
MONIES, PROPERTIES AND ALL OTHER SURLA, respondents.
KINDS OR NATURE WHATSOEVER
ADJUDICATED TO THE FIRST PARTY, DECISION
including damages awarded and interests
due thereon as based and computed in the
VITUG, J.:
final promulgation of the decision in said Civil
Case mentioned herein.
Can a compulsory counterclaim pleaded in an Answer be
dismissed on the ground of a failure to accompany it with a
The question that now arise are:
certificate of non-forum shopping? This question is the core
issue presented for resolution in the instant petition.
1. May the rights of lawyers to the fees due them for vices
rendered their client be invoked as a ground for in abeyance the
First, a factual background.
approval of a compromise agreement entered into by the client
and his adversary?
On 26 December 1995, respondent spouses filed a
complaint for damages against petitioner Santo Tomas
2. May a petition for intervention filed by an alleged financier of
University Hospital with the Regional Trial Court of Quezon City
one of the parties litigants in a case be en by this Court at this
predicated on an allegation by the spouses that their son,
stage of the proceedings, and if so, may the pendency thereof
Emmanuel Cesar Surla, while confined at the said hospital for
be invoked as a ground for holding in abeyance a compromise
having been born prematurely, had accidentally fallen from his
agreement entered into by and between the parties litigants?
incubator on 16 April 1995 possibly causing serious harm on the
child. The case was raffled and assigned to Branch 226 of the
WE answer these questions in the negative. Regional Trial Court of Quezon City, presided over by the Hon.
Leah S. Domingo-Regala, and there docketed Civil Case No. Q-
1. The matter of attorney's fees, if any, due Attys. Estanislao 95-25977.
Fernandez, Arroyo, Acsay, Barin and Ortile from private
respondent Nazario Clarence Jureidini cannot have a standing On 28 February 1996, petitioner hospital filed its Answer
higher than the rights of the clients or the parties themselves. with Compulsory Counterclaim asserting that respondents still
Hence, lawyers' rights to fees from their clients may not be owed to it the amount of P82,632.10 representing hospital bills
invoked by the lawyers themselves as a ground for disapproving for Emmanuels confinement at the hospital and making a claim
or otherwise. holding in abeyance the approval of the for moral and exemplary damages, plus attorneys fees, by
compromise agreement, which is otherwise not contrary to law, reason of the supposed unfounded and malicious suit filed
morals-, public order or public policy. The lawyers concerned against it.
can enforce their rights in the proper court in an appropriate
proceeding in accordance with the Rules of Court, but said
On 21 March 1996, petitioner received a copy of
rights may not be used to prevent the approval of the
respondents Reply to Counterclaim, dated 12 March 1996, that
compromise agreement (Jesalva, et al. vs. Hon. Bautista and
sought, inter alia, the dismissal of petitioners counterclaim for its
Premier Productions, Inc., 105 Phil. 348, 352).
non-compliance with Supreme Court Administrative Circular No.
04-94 requiring that a complaint and other initiatory pleadings,
2. With respect to the petition for intervention, We deny the such as a counterclaim, cross-claim, third (fourt, etc.) party
same, not only because the claim of the intervenor can be complaint, be accompanied with a certificate of non-forum
properly ventilated before the proper court in a separate shopping.
proceeding, but also because it will unduly delay and prejudice
the adjudication of the rights of the parties litigants in the case at
bar.
CIVIL PROCEDURE RULE 7-9 FULL TEXT
In its Rejoinder to respondents Reply to Counterclaim, cause for the dismissal of the complainant, petition, application
petitioner contended that the subject circular should be held to or other initiatory pleading. Included in such initiatory pleading is
refer only to a permissive counterclaim, an initiatory pleading not the defendants counterclaim, permissive or compulsory.
arising out of, nor necessarily connected with, the subject matter
of the plaintiffs claim but not to a compulsory counterclaim A counterclaim partakes of the nature of a complaint and/or a
spawned by the filing of a complaint and so intertwined cause of action against the plaintiff in a case x x x, only this time
therewith and logically related thereto that it verily could not it is the original defendant who becomes the plaintiff. It stands
stand for independent adjudication. Petitioner concluded that, on the same footing and is tested by the same rules as if it were
since its counterclaim was compulsory in nature, the subject an independent action.[5]
circular did not perforce apply to it.[1]
In its present recourse, petitioner contends that
In its Order of 22 March 1996, the trial court dismissed
petitioners counterclaim,it held:
The Court of Appeals (has) committed serious, evident and
palpable error in ruling that:
Administrative Circular No. 04-94 provides; among others:
5.1 THE SPECIAL CIVIL ACTION OF CERTIORARI UNDER
The complaint and other initiatory pleadings referred to and RULE 65 OF THE REVISED RULES OF COURT IS
subject of this Circular are the original civil complaint, UNAVAILING. THE DISMISSAL OF THE COMPULSORY
counterclaim, cross-claim, third (fourth, etc) party complaint, or COUNTERCLAIM BEING A FINAL ORDER, THE PETITIONER
complaint-in-intervention, petition or application wherein a party SHOULD HAVE TAKEN AN APPEAL THEREFROM; AND
asserts his claim on (sic) relief.
5.2 ADMINISTRATIVE CIRCULAR NO. 04-94 OF
It will be noted that the counterclaim does not distinguish THIS HONORABLE COURT LIKEWISE APPLIES TO
whether the same should be permissive or compulsory, hence BOTH KINDS OF COUNTERCLAIMS, PERMISSIVE AND
this Court finds that the counterclaim referred to in said Circular COMPULSORY.[6]
covers both kinds.
The petition is partly meritorious.
WHEREFORE, the counterclaim of defendant is hereby
DISMISSED. Let the pre-trial of this case be set on May 14,
The appellate court ruled that the dismissal of the
1996 at 2:00 oclock in the afternoon xxx[2]
counterclaim, being a final order, petitioners remedy was to
appeal therefrom and, such appeal being then available, the
On 16 April 1996, petitioner filed before the same court an special civil action for certiorari had been improperly filed.
Omnibus Motion seeking a clarification of the courts Order of 14
March 1996 denying respondents Reply to Counterclaim and
The concept of a final judgment or order, distinguished
reconsideration of the 22nd March 1996 Order dismissing the
form an interlocutory issuance, is that the former decisively puts
compulsory counterclaim.[3] On 22 April 1996, petitioner received
to a close, or disposes of a case or a disputed issue leaving
a copy of the courts Order, dated 16 April 1996, which
nothing else to be done by the court in respect thereto. Once
pertinently read:
that judgment or order is rendered, the adjudicative task of the
court is likewise ended on the particular matter involved. [7] An
WHEREFORE, the Order dated March 14, 1996 is hereby order is interlocutory, upon the other hand, if its effects would
clarified as follows: only be provisional in character and would still leave substantial
proceedings to be further had by the issuing court in order to put
xxxxxxxxx the controversy to rest.[8]

The Reply to counterclaim filed by counsel for plaintiffs is hereby The order of the trial court dismissing petitioners
NOTED. counterclaim was a final order since the dismissal, although
based on a technicality, would require nothing else to be done
SO ORDERED. by the court with respect to the specific subject except only to
await the possible filing during the reglementary period of a
motion for reconsideration or the taking of an appeal therefrom.
"The Motion for Reconsideration of this Courts Order dated
March 22, 1996 is hereby DENIED. The pre-trial conference set
on May 14, 1996 will go on as scheduled.[4] As a rule, errors of judgment, as well as of procedure,
neither relating to the jurisdiction of the court nor involving grave
abuse of discretion, are not reviewable by the extraordinary
Petitioner forthwith elevated the matter to the Court of Appeals
remedy of certiorari.[9] As long as a court acts within its
by way of a special civil action for certiorari under Rule 65,
jurisdiction and does not gravely abuse its discretion in the
Revised Rules of Court, asseverating grave abuse of discretion
exercise thereof, any supposed error committed by it will
by public respondent in dismissing the compulsory counterclaim
amount to nothing more than an error of judgment reviewable by
and in espousing the view that Administrative Circular No. 04-94
a timely appeal and not assailable by a special civil action
should apply even to compulsory counterclaims.
for certiorari.[10] This rule however, is not a rigid and inflexible
technicality.This Court has not too infrequently given due course
The Court of Appeals, in its Decision promulgated on 12 to a petition for certiorari, even when the proper remedy would
March 1997, dismissed the petition for certiorari; it opined: have been an appeal, where valid and compelling
considerations could warrant such a recourse. [11] Certiorari has
x x x the Supreme Court circular aforequoted requires without been deemed to be justified, for instance, in order to prevent
equivocation that to the original civil complaint, counterclaim, irreparable damage and injury to a party where the trial judge
cross-claim, third (fourth,etc.) party complainant, or complaint- has capriciously and whimsically exercised his judgment, or
in-intervention, petition, or application wherein a party asserts where an ordinary appeal would simply be inadequate to relieve
his claim for relief to be filed in all courts and agencies other a party from the injurious effects of the judgment complained of.
[12]
than the Supreme Court and the Court of Appeals must be
annexed and simultaneously filed therewith the required
certification under oath to avoid forum shopping or multiple filing
of petitions and complaints. Non-compliance therewith is a
CIVIL PROCEDURE RULE 7-9 FULL TEXT
In the case at bar, an appeal from the dismissal of the predicated on the applicability of the need for a certification
counterclaim, although not totally unavailable, could have well against forum shopping, obviously does not include a claim
been ineffective, if not futile, as far as petitioner is concerned which cannot be independently set up.
since no single piece of evidence has yet been presented by it,
the opportunity having been foreclosed by the trial court, on the Petitioner, nevertheless, is entitled to a mere
dismissed counterclaim which could form part of the records to partial relief. The so called counterclaim of petitioner really
be reviewed by the appellate court. The object of procedural law consists of two segregative parts: (1) for unpaid hospital bills of
is not to cause an undue protraction of the litigation, but to respondents son, Emmanuel Surla, in the total amount
facilitate the adjudication of conflicting claims and to serve, of P82,632.10; and (2) for damages, moral and exemplary, plus
rather than to defeat, the ends of justice.[13] attorneys fees by reason of the alleged malicious and
unfounded suit filed against it.[16] It is the second, not the first,
claim that the Court here refers to as not being initiatory in
character and thereby not covered by the provisions of
The opinion of this Court on the next issue persuades it to Administrative Circular No. 04-94.
accept, tested by the foregoing disquisition, the instant petition
for its consideration. WHEREFORE, the appealed decision is hereby modified
in that the claim for moral, exemplary damages and attorneys
The pertinent provisions of Administrative Circular No. 04- fees in Civil Case No. Q-95-25977 of petitioner is ordered
94 provide: reinstated. The temporary restraining order priorly issued by this
Court is lifted. No costs.
1 The plaintiff, petitioner, applicant or principal party seeking
relief in the complaint, petition, application or other initiatory SO ORDERED.
pleading shall certify under oath in such original pleading, or in a
sworn certification annexed thereto and simultaneously filed
therewith, to the truth of the following facts and undertakings: (a)
he has not theretofore commenced any other action or
proceeding involving the same issues in the Supreme Court, the
Court of Appeals, or any other tribunal or agency; (b) to the best
of his knowledge, no such action or proceeding is pending in the
Supreme Court, the Court of Appeals, or any other tribunal or
agency; (c) if there is any such action or proceeding which is
either pending or may have been terminated, he must state the
status thereof; and (d) if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals or any other tribunal or
agency, he undertakes to report that fact within five (5) days
therefrom to the court or agency wherein the original pleading
and sworn certification contemplated here have been filed.

The complaint and other initiatory pleadings referred to and


subject of this Circular are the original civil complaint,
counterclaim, cross-claim third (fourth, etc.) party
complaint or complaint-in-intervention, petition, or
application wherein a party asserts his claim for
relief. (Emphasis supplied)

It bears stressing, once again, that the real office of


Administrative Circular No. 04-94, made effective on 01 April
1994, is to curb the malpractice commonly referred to also as
forum-shopping. It is an act of a party against whom an adverse
judgment has been rendered in one forum of seeking and
possibly getting a favorable opinion in another forum, other than
by appeal or the special civil action of certiorari, or the institution
of two or more actions or proceedings grounded on the same
cause on the supposition tha tone or the other court would make
a favorable disposition.[14] The language of the circular distinctly
suggests that it is primarily intended to cover an initiatory
pleading or an incipient application of a party asserting a claim
for relief.[15]

It should not be too difficult, the foregoing rationale of the


circular aptly taken, to sustain the view that the circular in
question has not, in fact, been contemplated to include a kind of
claim which, by its very nature as being auxiliary to the
proceedings in the suit and as deriving its substantive and
jurisdictional support therefrom, can only be appropriately
pleaded in the answer and not remain outstanding for
independent resolution except by the court where the main case
pends. Prescinding from the foregoing, the provisio in the
second paragraph of Section 5, Rule 8 of the 1997 Rules on
Civil Procedure, i.e., that the violation of the anti-forum shopping
rule shall not be curable by mere amendment x x x but shall be
cause for the dismissal of the case without prejudice, being
CIVIL PROCEDURE RULE 7-9 FULL TEXT
Administrative Circular No. 04-94 of this Court issued by the Chief
Justice on 8 February 1994 and which took effect on 1 April 1994
pertinently provides:

Revised Circular No. 28-91, dated February 8, 1994 applies


to and governs the filing of petitions in the Supreme Court
and the Court of Appeals and is intended to prevent the
multiple filing of petitions or complaints involving the same
issues in other tribunals or agencies as a form of forum
shopping.

Complementary thereto and for the same purpose, the


G.R. No. 117083 October 27, 1995 following requirements, in addition to those in pertinent
provisions of the Rules of Court and existing circulars, shall
LAZARO V. KAVINTA, petitioner, be strictly complied with in the filing of complaints petitions,
vs. applications or other initiatory pleadings in all courts and
HON. PRUDENCIO ALTRE CASTILLO, JR., Presiding Judge, agencies other than the Supreme Court and the Court of
Branch 220, Regional Trial Court, Quezon City, and ANTONIO C. Appeals, and shall be subject to the sanctions provided
FRANCO, respondents. hereunder:

DAVIDE, JR., J.: 1. The plaintiff, petitioner, applicant or principal party seeking
relief in the complaint, petition, application or other initiatory
pleading shall certify under oath in such original pleading, or
The issue in this special civil action for certiorari is whether public
in a sworn certification annexed thereto and simultaneously
respondent Judge Prudencio Altre Castillo, Jr., has committed grave
filed therewith, to the truth of the following facts and
abuse of discretion in denying the motion to dismiss the complaint in
undertakings: (a) he has not theretofore commenced any
Civil Case No. Q-94-20532 on the ground that the certification of
other action or proceeding involving the same issues in the
non-forum shopping required under Administrative Circular No. 04-
Supreme Court, the Court of Appeals, or any other tribunal
941 was, nevertheless, subsequently submitted after the filing of the
or agency; (b) to the best of his knowledge, no such action
motion to dismiss.
or proceeding is pending in the Supreme Court, the Court of
Appeals or any other tribunal or agency; (c) if there is any
The antecedent disclosed by the parties in their pleadings are such action or proceeding which is either pending or may
uncomplicated. have been terminated, he must state the status thereof; and
(d) if he should thereafter learn that a similar action or
On 11 May 1994, private respondent represented by his attorney-in- proceeding has been filed or is pending before the Supreme
fact, Angeles F. Arroyo, filed with the Regional Trial Court of Quezon Court, the Court of Appeals, or any other tribunal or agency,
City a complaint against petitioner Lazaro V. Kavinta and others 2 a he undertakes to report that fact within five (5) days
complaint for Recovery of Possession and Issuance of Writ of therefrom to the court or agency wherein the original
Demolition. The case was docketed as Civil Case No. Q-94-20532 pleading and sworn certification contemplated herein have
and was raffled to Branch 220 of said court, which is presided over been filed.
by public respondent Judge Castillo.
The complaint and other initiatory pleadings referred to and
On 20 June 1994, the petitioner and his codefendants moved to subject of this Circular are the original civil complaint,
dismiss the complaint 3 on the ground that "it does not comply with counterclaim, cross-claim, third (fourth, etc.) party
Administrative Circular No. 04-94 of the Supreme Court which took complaint, or complaint-in-intervention, petition, or
effect on April 1, 1994." application wherein a party asserts his claim for relief.

On 4 July 1994 private respondent filed, through counsel, an 2. Any violation of this Circular shall be a cause for the
opposition to the motion to dismiss, 4 to which he attached as Annex dismissal of the complaint, petition, application or other
"A" thereof the certification required in Administrative Circular No. initiatory pleading, upon motion and after hearing. However,
04-94. 5 any clearly wilful and deliberate forum shopping by any party
and his counsel through the filing of multiple complaints or
other initiatory pleadings to obtain favorable action shall be a
On 20 July 1994, Judge Castillo issued an order 6 denying the
ground for summary dismissal thereof and shall constitute
motion to dismiss in view of the submission of the aforesaid
direct contempt of court. Furthermore, the submission of a
certification, and directing the defendants to file their answer or
false certification or non-compliance with the undertakings
responsive pleading "within the remaining reglementary period in
therein, as provided in Paragraph 1 hereof, shall constitute
accordance with the Rules of Court."
indirect contempt of court, without prejudice to disciplinary
proceedings against the counsel and the filing of a criminal
On 3 August 1994, Judge Castillo issued an order 7 declaring action against the guilty party.
petitioner's Reply to the opposition to the motion to dismiss moot
and academic in view of the order of 20 July 1994.
In Loyola vs. Court of Appeals, et al., 10 we categorically ruled that
the Circular is mandatory as indicated by the clear language of its
On 24 August 1994, petitioner filed a motion to reconsider his Reply paragraph 2. Nevertheless, substantial compliance thereof is
as a motion for the reconsideration of the order of 20 July 1994. 8 sufficient. Thus:

On 2 September 1994, Judge Castillo issued an order 9 denying the Substantial compliance with the Circular is sufficient. This
Reply, which was treated as a motion for reconsideration, and Circular expanded or broadened the applicability of Circular
clarifying that No. 28-91 of this Court. In Gabionza vs. Court of
Appeals [G.R. No. 112547, Resolution of 18 July 1994. 234
The language of the July 20, 1994 order is very clear and SCRA 192] this Court held that substantial compliance
unambiguous. The fifteen (15) days reglementary period to therewith is sufficient for:
plead is reckoned from the date defendants, through
counsel, received the notice denying their motion to dismiss. It is scarcely necessary to add that Circular No. 28-
91 must be so interpreted and applied as to achieve
the purposes projected by the Supreme Court when
it promulgated that Circular. Circular No. 28-91 was
CIVIL PROCEDURE RULE 7-9 FULL TEXT
designed to serve as an instrument to promote and On February 3, 1988, the Philippine Ports Authority issued
facilitate an orderly administration of justice and Administrative Order No. 02-88 (A.O. No. 02-88) entitled
should not be interpreted with such absolute "Implementing Guidelines on Open Pilotage Service". A.O. No.
literalness as to subvert its 02-88 opened pilotage services in the Philippines to all licensed
own ultimate and legitimate objective or the goal of and accredited harbor pilots regardless of their non-membership
all rules of procedure which is to achieve in existing harbor pilots association. 2
substantial justice as expeditiously as possible.

The United Harbor Pilots Association of the Philippines, Inc.


xxx xxx xxx
(hereinafter referred to as "United Harbor" for brevity) and
private respondent Manila Pilots Association (hereinafter
The fact that the Circular requires that it be strictly referred to as "Manila Pilots") 3 made representations with then
complied with merely underscores its mandatory Acting Secretary of Transportation and Communications, Hon.
nature in that it cannot be dispensed with or its
Rainerio O. Reyes and the Chairman of the Philippine Ports
requirements altogether disregarded, but it does not
Authority to set aside the implementation of A.O. No. 02-88
thereby interdict substantial compliance with its
claiming that it violated their exclusive right to provide pilotage
provisions under justifiable circumstances.
services in the Philippines.

In his opposition to the motion to dismiss, private respondent neither


offered any explanation why he failed to comply with the Circular nor Failing in their efforts to obtain a reconsideration of the said
invoked any justifiable circumstance which would relieve him of the administrative order, "United Harbor" and private respondent
adverse effect of non-compliance. If this Court is to be unbending in "Manila Pilots" sought to invalidate A.O. No. 02-88 by filing with
its demand for at least a substantial compliance of the said Circular, the Regional Trial Court of Manila, a petition for certiorari and
the challenged order must have to be set aside. However, in his prohibition with prayer for a temporary restraining order against
motion to dismiss the instant petition, 11private respondent pointed Secretary Reyes, the Philippine Ports Authority, its General
out that the filing of the required certification was done with dispatch Manager, Maximo S. Dumlao, Jr. and certain "John Does" (Civil
by his counsel upon "realization of the existence of said circular." He Case No. 88-44726).
thereby admits his unawareness or ignorance of the Circular at the
time he filed his complaint. We are not unmindful of the fact that
On October 26, 1989, the Regional Trial Court rendered its
Administrative Circular No. 04-94 took effect only on 1 April 1994
decision in Civil Case No. 88-44726 in favor of "United Harbor"
and the complaint in Civil Case No.
and private respondent "Manila Pilots", the dispositive portion of
Q-94-20532 was filed on 11 May 1994. The proximity then of the
filing of the complaint to the date of the effectivity of the Circular may which reads:
be pleaded as a justifiable circumstance, and the belated filing of the
certification required thereunder may be deemed a substantial WHEREFORE, for all of the foregoing, the petition is
compliance therewith. We thus rule pro hac vice, but not without a hereby granted:
whit of reluctance, that this special circumstance in this case could
sustain the action of the respondent Judge. This should not be
1. Respondents are hereby declared to have acted in
taken, however, as a precedent. Elsewise stated, the mere
excess of jurisdiction and with grave abuse of discretion
submission of a certification under Administrative Circular No. 04-94
after the filing of a motion to dismiss on the ground of non-
amounting to lack of jurisdiction in approving Resolution
compliance thereof does not ipso facto operate as a substantial No. 869 and in enacting Administrative Order No. 02-88,
compliance; otherwise the Circular would lose its value or efficacy. the subject of which is "Implementing Guidelines or (sic)
Open Pilotage Service;
WHEREFORE, the instant petition is DISMISSED. Petitioner is
DIRECTED to file his responsive pleading in Civil Case No. Q-94- 2. Philippine Ports Authority Administrative Order No. 02-
20532 within a period of ten (10) days from notice of this resolution. 88 is declared null and void;

Costs against petitioner. 3. The preliminary injunction issued on September 8,


1989 is made permanent; and
SO ORDERED.
4. Without costs.

SO ORDERED. 4

The above decision was appealed to the Court of Appeals via a


petition for certiorari and prohibition which was dismissed for
lack of jurisdiction, as it raised a purely legal question. 5 The
G.R. No. 116910 October 18, 1995 dismissal was appealed to this court by way of a petition for
review on certiorari which was denied with finality on June 8,
INTERNATIONAL CONTAINER TERMINAL SERVICES, INC., 1992. 6 Notwithstanding the finality of the decision recognizing
ET AL., petitioners, the exclusive right to pilotage of "United Harbor" and private
vs. respondent "Manila Pilots", petitioner "International Container"
COURT OF APPEALS, HON. ANGEL V. COLET, MANILA took over the pilotage services at the Manila International Port
PILOTS ASSOCIATION, ET AL., respondents. area 7 on October 28, 1992 by virtue of a contract it entered into
with the Philippine Ports Authority.

As a consequence, "United Harbor" and private respondent


FRANCISCO, J.: "Manila Pilots" filed a series of petitions in Civil Case No. 88-
44726 to hold then Philippine Ports Authority General Manager
Rogelio A. Dayan and "International Container" officials and
Material hereto are the antecedents mostly taken from the
other persons in contempt of court. The contempt petitions,
decision of the respondent Court of Appeals in CA-G.R. No. SP
however, have not been resolved because the Office of the
33177, (International Container Terminal Services, Inc., et. al. v.
Solicitor General elevated to the Supreme Court (docketed as
Hon. Angel V. Colet, et. al.), 1 subject of the present petition for
G.R. 107720) the question of whether or not the lower court still
review, viz:
CIVIL PROCEDURE RULE 7-9 FULL TEXT
had jurisdiction to take cognizance of the petitions for contempt The assailed decision is in accordance with the established rule
in view of the finality of the decision in Civil Case No. 88-44726. that for forum shopping to exist, both actions must involve the
same transactions, same essential facts and
Pending resolution of the contempt petitions, private respondent circumstances. 14 Furthermore, the actions must also raise
"Manila Pilots" filed another case against petitioner identical causes of action, subject matter, and issues. 15 We find
"International Container" before Branch 32 of the Regional Trial no such similarity in the actions involved. Thus, as correctly
Court of Manila docketed as Civil Case No. 93-66024 for observed by the respondent court:
damages suffered by private respondent "Manila Pilots"
between April 19, 1993 and April 29, 1993 as a result of The facts which gave rise to the contempt petition is
petitioner's usurpation of its sole and exclusive exercise of directed against what was perceived to be violative of
harbor pilotage in the South and North Harbors of Manila and the permanent injunction issued by Judge Flojo not to
Limay, Bataan, except the Manila International Port area. 8 implement the open pilotage policy as provided for
under PPA Administrative Order No. 02-88, . . . .
Similarly, aggrieved by the unjust actuations of petitioner
"International Container", and its continuing refusal to relinquish Upon the other hand the complaint in Civil Case No.
pilotage services in the Manila International Port area, private 93-68143 (sic) is anchored on the alleged usurpation
respondent "Manila Pilots" instituted a petition for mandamus, of the right of respondents on (sic) the sole and
prohibition with preliminary mandatory injunction and damages exclusive exercise of Harbor Pilotage only in the MIP
against petitioner "International Container" before Branch 47 of area, from October 29, 1992 up to the present and
the Regional Trial Court of Manila docketed as Civil Case No. the corresponding claim for damages.16 (Emphasis
66143. provided)

In an Order dated January 20, 1994, the Regional Trial Court in Furthermore, G.R. No. 107720 was filed with the Supreme Court
Civil Case No. 93-66143 issued the writ prayed for, thereby solely to question the jurisdiction of the lower court to take
"restoring and reinstating private respondent "Manila Pilots" to cognizance of the contempt petitions filed in Civil Case No. 88-
the exclusive exercise of harbor pilotage in the Manila 44726, and the issue raised therein has no bearing on that
International Port (MIP) area and commanding petitioner raised in Civil Case No. 93-66143.
"International Container" to cease and desist from usurping or
exercising the right to compulsory pilotage in the said Manila On the other hand, Civil Case No. 93-66024 sought
International Port (MIP) area." 9 Petitioner "International the recovery of damages in the form of unearned income as a
Container" assailed this order of the lower court by filing a result of petitioner's usurpation of the right to pilotage of private
petition for certiorari with respondent court contending, among respondent "Manila Pilots" in the South and North Harbors of
others, that the filing of Civil Case No. 93-66143, pending: Manila and Limay, Bataan except Manila International Port area
from April 19, 1993 to April 29, 1993while Civil Case No. 93-
1.) Contempt petitions incidents of Civil Case No. 66143 was brought to enjoin petitioner from further usurping the
88-44726 The contempt petitions filed by "United same right of private respondent "Manila Pilots" in the Manila
Harbor" and private respondent "Manila Pilots" against International Port area only from October 28, 1992 up to the
petitioner "International Container" and Philippine Ports present. Clearly, these two cases do not have the same facts
Authority for defying the final judgment in Civil Case No. nor do they raise identical causes of action.
88-44726;
Moreover, "[t]here is forum shopping whenever, as a result of an
2.) G.R. No. 107720 The case filed by the Office of the adverse opinion in one forum, a party seeks a favorable opinion
Solicitor General with the Supreme Court raising the (other than by appeal or certiorari) in another". 17 Therefore, a
question of jurisdiction of the lower court to take party to a case resorts to forum shopping because "[b]y filing
cognizance of the contempt petitions in view of the finality another petition involving the same essential facts and
of the decision in Civil Case No. 88-44726; and circumstances, . . ., respondents approached two different fora
in order to increase their chances of obtaining a favorable
3.) Civil Case No. 93-66024 The action for damages decision or action". 18 It cannot be said that private respondent
filed by private respondent "Manila Pilots" against "Manila Pilots" sought to increase its chances of obtaining a
"International Container" to recover unearned income from favorable decision or action as a result of an adverse opinion in
the exercise of harbor pilotage in ports other than the one forum, inasmuch as no unfavorable decision had ever been
Manila International Port (MIP) area from April 19, 1993 to rendered against private respondent "Manila Pilots" in any of the
April 29, 1993 was violative of the prohibition against cases brought before the courts below. On the contrary, private
forum shopping. 10 Respondent court found no merit in this respondent "Manila Pilots" was one of the prevailing parties in
contention, and affirmed the decision of the lower court. Civil Case No. 88-44726 which established with finality its
exclusive right together with "United Harbor" to provide pilotage
services in the Philippines even prior to the institution of the
Hence, the main inquiry posed before us: On the basis of the
other actions (G.R.107720, Civil Case No. 93-66024 and Civil
foregoing, is there forum shopping?
Case No. 93-66143.)

Petitioner "International Container" contends that there is forum


ACCORDINGLY, finding no reversible errors, the decision
shopping because "[t]he issue on (sic) the contempt petition
appealed from is hereby AFFIRMED and this petition is
before Judge Flojo 11 and before this Court and (sic) in G.R. No.
DENIED.
107720 is the very same issue involved in the case
for mandamus and prohibition (Civil Case No. 93-66143)". 12 It
further contends that private respondent "Manila Pilots" is guilty
of forum shopping because "[a]t the time the contempt petitions
were pending . . . and while these petitions were being
challenged . . . (G.R. No. 107720), another case . . . was
pending before RTC Manila, docketed as Civil Case No.
93-66024 . . ." 13

We are not persuaded.


CIVIL PROCEDURE RULE 7-9 FULL TEXT

[G.R. No. 127393. December 4, 1998] From the foregoing factual and procedural antecedents,
the main issue for our resolution is:
SPOUSES VALENTINO ORTIZ AND CAMILLA MILAN
ORTIZ, petitioners, vs. COURT OF APPEALS and SPOUSES DID THE RESPONDENT COURT OF APPEALS ERR IN
FRANCISCO AND BERNARDINA RODRIGUEZ, respondents. DISMISSING THE PETITION FOR REVIEW UNDER RULE 41
OF THE REVISED RULES OF COURT AS AMENDED, FOR
DECISION FAILURE OF PETITIONERS TO FAITHFULLY COMPLY WITH
THE PROCEDURAL REQUIREMENTS SET FORTH IN SC
CIRCULAR NO. 28-91 AND SC ADMINISTRATIVE
QUISUMBING, J.:
CIRCULARS NO. 3-96?

Petitioners seeks a review of the decision[1] of the Court of


To resolve the issue, it should be recalled that Revised
Appeals in CA- G.R. CV 42238 dated October 18, 1996, and its
Circular No. 28-91[5] provides that the party must certify
resolution[2] dated December 03, 1996, on the motion for
under oath that he has not commenced any other action or
reconsideration, dismissing the case for failure of the petitioners
proceeding involving the same issues in the Supreme Court, the
to comply strictly with the Rules of Court. The appellate court
Court of Appeals, or different Divisions thereof, or any other
decreed, thus:
tribunal or agency, and that to the best of his knowledge, no
such action or proceeding is pending in the Supreme Court, the
WHEREFORE, for not being sufficient in form and substance, Court of Appeals, or different Division thereof, or any other
the instant Petition for Review is hereby DENIED due course tribunal or agency[6] (Emphasis supplied)
and accordingly DISMISSED outright.[3]
Petitioners admit that their lawyer, Atty. Ma. Filomena
The factual background of this petition is as follows: Singh-Paulite, signed the Certification on Non-Forum Shopping.
Allegedly, Atty. Paulite has personal knowledge that the Ortizes
The spouses Francisco and Bernardina Rodriguez, herein had not commenced any other action or proceeding involving
private respondents (hereafter the Rodriguezes), filed an action the same parties and causes of action. Petitioners now assert
for ejectment in the Metropolitan Trial Court (MeTC) of that their lawyers signature must be accepted as substantial
Paraaque, Branch 77, against Valentin and Camilla Ortiz, herein compliance with the requirements of the Circular.
petitioners (hereafter the Ortizes), who are lessees of Cristopher
and Angelica Barramedas, on the ground that they are the real Regrettably, we find that substantial compliance will not
owners of the house and lot or the subject property. MeTC, suffice in a matter involving strict observance as provided for in
Branch 77, awarded the possession of the property in favor of Circular No. 28-91. The attestation contained in the certification
the Rodriguezes. on non-forum shopping requires personal knowledge by the
party who executed the same. To merit the Courts consideration,
The Ortizes appealed the Paraaque MeTC decision to the petitioners here must show reasonable cause for failure to
RTC of Paraaque, Branch 257. On August 30, 1996, the latter personally sign the certification. The petitioners must convince
court found no reversible error in the assailed judgment, and the court that the outright dismissal of the petition would defeat
thus affirmed it in toto. On September 27, 1996, the the administration of justice. However, the petitioners did not
Rodriguezes filed the Motion for Issuance of Writ of Execution of give any explanation to warrant their exemption from the strict
judgment, which was opposed by the herein petitioners on application of rule. Utter disregard of the rules cannot justly be
October 24, 1996. rationalized by harking on the policy of liberal construction.

Upon the Paraaque RTCs denial of the Opposition to Concerning the second ground for the appellate courts
Motion for Issuance of Writ of Execution, the petitioner Ortizes dismissal of the petition, it is required that:
appealed to the Court of Appeals (CA). The petition was
dismissed on the following grounds: (1) the certification of non- 2 The duplicate original copy must be duly signed or initialled by
forum shopping was signed by the counsel and not by the the authorities or the corresponding officers or representative of
petitioners themselves, and (2) the copy of the RTC decision is the issuing entity, or shall at least bear the dry seal thereof or
not duly certified as a true copy as required by Sec. 3 (b), Rule 6 any other official indication of the authenticity and completeness
of the Revised Internal Rules of CA. Further, the supposed of such copy.[7] (Emphasis ours.)
duplicate original copy of said decision does not bear the dry
seal of the trial court, but merely stamped Original Signed,
Petitioners contend that they attached the very same
which appears above the name of the judge.
duplicate original copy of the decision which they revised from
the RTC. Said duplicate original copy of the decision, having
Hence, the petitioners now come before us, and raise the come from the trial court itself., petitioners believed in good faith
following grounds in support of the petition: that, by attaching it to the petition, they would be considered to
have substantially complied with the filing requirements under
I The Court of Appeals is clear contravention of the rules of the law. However, strict compliance with procedural
Court, and the ruling in Gabionza v. Court of Appeals, 234 requirements in taking an appeal cannot be substituted by good
SCRA 192, Loyola v. Court of Appeals, 245 SCRA 477 and faith compliance. To rule otherwise would defeat the very
Kavinta v. Castillo, 249 SCRA 604 gravely erred in dismissing purpose of the rules of procedure, i. e., to facilitate the orderly
the Ortizes' petition review, and/or in failing to reconsider such administration of justice.[8]
dismissal.
Although the petitioners subsequently submitted to the CA
II. The Court of Appeals gravely erred in failing to rule on the the corrected annexes of the Petition for review, the respondent
issue of lack of jurisdiction of the MTC which had decided the court ruled that it did not stop the questioned decision from
issue of ownership. becoming final and executory.

III. The Court of Appeals gravely erred in ignoring the issue of The petitioners failed to fully satisfy the CA or this Court
forum shopping raised against the Rodriguezes, and thus that (1) the non-compliance with the requirements was not in
sanctioned a violation of Circular Nos. 28-91 and 04-94.[4] any way attributable to them; (2) they exerted due diligence; (3)
CIVIL PROCEDURE RULE 7-9 FULL TEXT
there are highly justifiable and compelling reasons for the court regarded by Matilde Cantiveros with great confidence, even as
to make a disposition in the interest of justice.[9] her child. Through the influence of Gustavus Bough, who
brought a story to Matilde Cantiveros that her husband Jose
The Petition for review filed by the Ortizes with the CA was Vasquez was in town and might contest the contract for the
an appeal from the RTC in the exercise of its appellate separation of the conjugal property, Matilde Cantiveros was
jurisdiction. Consequently, the Ortizes should bear in mind that induced to sign a fictitious contract of sale of all her property to
the right to appeal is not a natural right to a part of due process; Basilia Bough. This document, introduced in evidence as Exhibit
it is merely a statutory privilege, and may be exercised only in A, was prepared in due from and acknowledged before a notary
manner and in accordance with the provisions of the law.[10] The public, the amount of the consideration, ten thousand pesos,
party who seeks to avail of the same must comply with the being last inserted with a pen. By this deed, Matilde Cantiveros
requirements of the rules, Failing to do so, the right to appeal is purported to convey sixty-three parcels of land, the real value of
lost.[11] Rules of Procedure are required to be followed, except which was over thirty thousand pesos, for ten thousand pesos,
only when for the most persuasive of reasons, they must be although no evidence that any such sum ever passed between
relaxed to relieve a litigant of an injustice not commensurate the parties was introduced, to her cousin, Basilia Bough. In
with the degree of his thoughtlessness in not complying with the order to reassure Matilde Cantiveros that they would not take
procedure prescribed.[12] advantage of the fictitious sale, Gustavus Bough and Basilia
Bough prepared and signed another document, introduced in
evidence as Exhibit 1, which is a donation by them to Matilde
WHEREFORE, finding no reversible error nor grave abuse
Cantiveros of all the property mentioned in Exhibit A, to be
of discretion committed by public respondent, the Court resolved
effective in case of the death of themselves and their children
to DENY the Petition for Review on Certiorari and AFFIRM the
before the death of Matilde Cantiveros. The defendant, Matilde
decision in CA-G.R. CV 42238. COST against the petitioners.
Cantiveros, has remained in possession of the property.

SO ORDERED.
These facts, which, it may be said, are mainly derived from the
findings of the trial court, merely repeat the threadbare story of a
conveyance of property entered into with a fraudulent intention
and for a fraudulent purpose, in order to defeat recovery in a suit
at law by a third party.

Plaintiffs and appellants assign six errors of the trial court. In so


far as these assignments concern the facts, they need no
G.R. No. 13300 September 29, 1919
discussion. Plaintiff's declarations have not been corroborated,
while defendant's story has been corroborated by reliable
BASILIA BOUGH and GUSTAVUS BOUGH, plaintiffs- witnesses. All the reason all the equity of the case, is in
appellants, favor of the defendants. As far as necessary for the disposition
vs. of the appeal, we resolve plaintiff's points in order.
MATILDE CANTIVEROS and PRESBITERA
HANOPOL, defendants-appellees.
1. The first assignment of error reads: "The lower Court erred in
permitting the defendants to present evidence, over the
objections of the plaintiff, tending to impugn the genuineness
and due execution of the document, Exhibit A, and in admitting
MALCOLM, J.: them to show the circumstances under which it was executed.

This action was begun in the Court of First Instance of Leyte, It is undeniable that this was an action brought upon a written
pursuant to a complaint by means of which the plaintiffs Basilia instrument, and that the complaint contained a copy of the
Bough and Gustavus Bough sought to have themselves put in instrument, but that its genuineness and due execution were not
possession of the property covered by the deed of sale quoted specifically denied under oath in the answer. Is this fatal to the
in the complaint, and to require the defendant Matilde defense?
Cantiveros to pay the plaintiffs the sum of five hundreds pesos
by way of damages, and to pay the costs. Matilde Cantiveros Section 103 of the Philippine Code of Civil Procedure provides:
answered with a general denial and a special defense, not
sworn to, in which she asked that judgment be rendered
When an action is brought upon a written instrument and
declaring the contract of sale theretofore made between herself the complaint contains or has annexed a copy of such
and Basilia Bough null. The plaintiffs, thereupon, denied under instrument, the genuineness and due execution of the
oath the genuineness and due execution of the so-called instrument shall be deemed admitted, unless specifically
donation intervivos set forth in the answer. Presbitera Hanopol denied under oath in the answer; and when the defense to
was permitted to intervene as a defendant. After trial, judgment an action, or a counterclaim stated in an answer, is
was rendered by the Honorable W. E. McMahon, judge of first founded upon a written instrument and the copy thereof is
instance, in favor of the defendants, declaring the deed of sale, contained in or annexed to the answer, the genuineness
Exhibit A, fictitious, null, and without effect, and absolving the and due execution of such instrument shall be deemed
defendants from the complaint, with costs against the plaintiffs. admitted, unless specifically denied under oath by the
It is from this judgment through the ordinary means of perfection plaintiff in his pleadings.
of a bill of exceptions that the case is brought to this court for
decision. This section is derived from sections 448 and 449 of the Code of
Civil Procedure of California, and is to be found in varying form
The facts are these: Matilde Cantiveros is reputed to be the in the statutes of practically all the states of the American Union.
richest resident of the municipality of Carigara, Leyte. In the The meaning of this portion of the Code, and the intention of the
latter part of the year 1913, she was the owner of various Legislature in enacting it, are easily found. The law says that the
parcels of realty of the value of thirty thousand pesos or more. genuineness and due execution of a written instrument properly
On December 24, 1912, Matilde Cantiveros and her husband pleaded shall be deemed admitted unless the plaintiff or
Jose Vasquez, signed a marital contract of separation. At this defendant, as the case may be, shall specifically deny the same
time there lived with Matilde Cantiveros, Basilia Hanopol, a under oath. When the law makes use of the phrase
cousin and protege since childhood, who was married to "genuineness and due execution of the instrument" it means
Gustavus Bough. For this reason, Gustavus Bough was nothing more than that the instrument is not spurious,
CIVIL PROCEDURE RULE 7-9 FULL TEXT
counterfeit, or of different import on its face from the one We hold that parole evidence was properly admitted to show the
executed. As an example, where the name of a corporation is illegality of the contract of sale introduced as Exhibit A.
signed to the document which is the basis of an action, the
failure of the defendant corporation to put in issue, by denial 3. The third point raised by appellant is, that the defendant,
under oath, the due execution of the instrument, as required in having accepted the donation expressed in the instrument
section 103 of the Code of Civil Procedure, operates as an Exhibit 1, is now estopped from denying the consideration set
admission of the authority of the officer to execute the contract, forth therein. A sufficient answer is, that it having been
since the authority of the officer to bind the company is essential established that Exhibit A is invalid, such an instrument cannot
to the due execution of its contract. But the failure of the party to be made the basis of an estoppel.
file an affidavit denying the genuineness and due execution of
the document does not estop him from controverting it by
We hold that the so-called donation in favor of Matilde
evidence of fraud, mistake, compromise, payment, statute of
Cantiveros did not operate to create an estoppel.
limitations, estoppel, and want of consideration. As section 285
of our Code of Civil Procedure permits a writing to be
impeached because of its illegality or fraud, such a defense 4. The last question which is propounded by appellant relates to
would not be barred by the provisions of section 103. the effect of the illegality of the instant contract.

We hold that although the defendants did not deny the It is rudimentary that contracting parties may not establish pacts,
genuineness and due execution of the contract of sale of clauses, and conditions, which conflict with the laws, morals, or
December 9, 1913, under oath, yet the defendants could public order; "public order" signifies "the public weal" public
properly set up the defenses of fraud and want of consideration. policy It is further well settled, that a party to an illegal contract
cannot come into a court of law and ask to have his illegal
objects carried out. The rule is expressed in the maxims: "Ex
2. The second assignment of error reads: "The lower Court
dolo malo non oritur actio," and "In pari delicto potior est
erred in finding that the plaintiff Gustavus Bough, having
conditio defendentis." The law will not aid either party to an
prepared a contract of separation between the defendant
illegal agreement; it leaves the parties where it finds them.
Matilde Cantiveros and her husband, Jose Vasquez, sought to
cause her to believe that she exposed herself to a suit by her
husband regarding her property, notwithstanding the contract of Where, however, the parties to an illegal contract are not equally
separation, and for that reason and for the purpose of shielding guilty, and where public policy is considered as advanced by
herself from the consequences of the apprehended suit, that allowing the more excusable of the two to sue for relief against
she and her mother executed the document Exhibit A." the transaction, relief is given to him. Cases of this character
are, where they conveyance was wrongfully induced by the
grantee through imposition or overreaching, or by false
Counsel relies on the provisions of article 1218 of the Civil
representations, especially by one in a confidential relation. (13
Code, which provides that "Public instruments are evidence,
C. J., 497-499; Pride vs. Andrew [1894], 51 Ohio State, 405.)
even against a third person, of the fact which gave rise to their
execution and of the date of the latter." The effect of this article
has been announced in numerous decisions of the Supreme As corroborative examples of these principles, we may cite the
Court of Spain and of this Court. But in conjunction with article following:
1218 of the Civil Code, there should always be read section 285
of the Code of Civil Procedure which provides that: Where a husband falsely represented to his wife that she
was liable for certain debts, and that the creditors would
When the terms of an agreement have been reduced take her property and influenced by this, and intending to
to writing by the parties, it is to be considered as defraud such creditors, she transferred her property to him,
containing all those terms, and therefore there can be, it was held that the deed would be set aside.
between the parties and their representatives or
successors in interest, no evidence of the terms of Where a party has given a conveyance of his property with
agreement other than contents of the writing, except in intent to defraud a creditor, the law will allow him no relief
the following cases: against such conveyance, but will leave him in the situation
in which he has placed himself. But where there is no
1. Where a mistake or imperfection of the writing, or its creditor in fact, but only an imaginary one, through fear of
failure to express the true intent and agreement of the whom the grantor, encouraged by the grantee, makes the
parties, is put in issue by the pleadings; conveyance, a fraudulent intent will not be imputed to the
grantor, and where the conveyance of the property has
been without consideration, he may recover the same or its
2. Where the validity of the agreement is the fact in
value. (Kervick vs. Mitchell [1885], 68 Iowa, 273.)
dispute. But this section does not exclude other
evidence of the circumstances under which the
agreement was made, or to which it relates, or to Where a son falsely represented to his mother that a suit
explain an intrinsic ambiguity, or to establish its was about to be brought against her for slander which
illegality or fraud. The term `agreement' includes would result in her losing all her property, and thereby
deeds and intruments conveying real estate, and wills induced her to convey all her property to him, it was held
as well as contracts between parties. that the conveyance would be set aside at her suit.
(Harper vs. Harper & Co. [1887], 85 Ky., 160.)
While thus as the law well says "public instruments are evidence
of the fact which gave rise to their execution" and are to be Where a woman seventy years of age and illiterate was
considered as containing all the terms of the agreement, yet, if induced by her son-in-law and the sureties on his bond to
the validity of the agreement is the issue, parole evidence may execute a mortgage to the sureties to indemnify them on a
be introduced to establish illegality or fraud. Evidence to defalcation by the son-in-law, by holding out to her the
establish illegality or fraud, is expressly permitted under section anticipated punishment of the latter, without allowing her a
285 of the Code of Civil Procedure, and may be proved by chance to consult any disinterested friend, it was held that
circumstantial evidence, aided by legitimate inferences from the the mortgage would be set aside.
direct facts.
One who executes a bill of sale at the instance of the
grantee for the purpose of putting his property beyond the
CIVIL PROCEDURE RULE 7-9 FULL TEXT
reach of a third person whom the grantee represented was L.O. HIBBERD, plaintiff-appellant,
about to institute suit against the grantor, is entitled to vs.
recover the value of the property, where such third person WM. J. ROHDE and D.J. MCMILLIAN, defendants-appellees.
had no valid claim against the grantor, but had been settled
TRENT, J.:
with in full, and his receipt taken.

This is a suit on a promissory note against the makers. Only one


A brother who conveyed property to his sister on a secret of them, the defendant Rohde, appeared and answered. He not
trust for his benefit, to defeat any claim for alimony which having entered a verified specific denial of the genuineness and
his wife, who had instituted a suit for divorce, might make due execution of the note, the plaintiff claims that his special
against him, is entitled to enforce the trust upon which the defense of illegality of consideration is cut off by section 103 of
conveyance was made, where it does not appear that any the Code of Civil Procedure, which reads as follows: "Actions
and defenses based upon a written instruments. When an
claim for alimony was ever set up by his wife, or allowed, or
action is brought upon a written instrument and the complaint
that facts existed entitling her to such an allowance. The contains or has annexed a copy of such instrument, the
court said: `It does not appear that there was any creditor genuineness and due execution of the instrument shall be
whose rights or interests could be prejudiced by the deemed admitted, unless specifically denied under oath in the
conveyance, and the question is whether or not the mere answer; and when the defense to an action, or a counterclaim
motive which impelled the party to make the deed will stated in an answer, is founded upon a written instrument and
preclude him from enforcing the trust upon which it was the copy thereof is contained in or annexed to the answer, the
genuineness and due execution of such instrument shall be
executed. We think that where there is no creditor, there is
deemed admitted, unless specifically denied under oath by the
no fraud, and therefore no policy of the law to prevent the plaintiff in his pleadings."
enforcement of the trust.
By the admission of the genuineness and due execution of an
A conveyance made by a mother to a daughter in instrument, as provided in this section, is meant that the party
consequence of false representations that her property whose signature it bears admits that he signed it or that it was
might otherwise be taken from her to satisfy a claim for signed by another for him with his authority; that at the time it
alimony arising from a suit for divorce about to be brought was signed it was in words and figures exactly as set out in the
pleadings of the party relying upon it; that the documents was
against her son by his wife will be cancelled. The Court delivered; and that any formal requisites required by law, such
said: "If the conveyance was made for the purpose of as a seal, an acknowledgment, or revenue stamp, which it lacks,
protecting the property from such claim, such are waived by him. Hence, such defense as that the signature is
representations being untrue, and such apprehensions in a forgery \; or that it was unauthorized, as in the case of an
fact groundless, then she is entitled to have the deeds set agent signing for his principal, or one signing in behalf of a
aside." partnership, or of a corporation; or that, in the case of the latter,
that the corporation was not authorized under its charter to sign
the instrument; or that the party charged signed the instrument
In this instance, the grantor, reposing faith in the integrity of the in some other capacity than that alleged in the pleading setting it
grantee, and relying on a suggested occurrence, which did not out; or that it was never delivered are cut off by the admission of
in fact take place, was made the dupe of the grantee, and led its genuineness and due execution.
into an agreement against public policy. The party asking to be
relieved from the agreement which she was induced to enter The effect of the admission is such that in the case of a
into by means of fraud, was thus in delicto, but not in pari promissory note a prima facie case is made for the plaintiff
delicto with the other party. The deed was procured by which dispenses with the necessity of evidence on his part and
entitles him to a judgment on the pleadings unless a special
misrepresentation and fraud sufficient to vitiate the transaction.
defense of new matter, such as payment, is interposed by the
The rights of creditors are not affected. We feel that justice will defendant. But we have held that the section is not applicable to
be done if we place the grantor in the position in which she was the indorsement on a promissory note in a suit against the
before these transactions were entered into. maker; nor against the heirs of decedent who signed a
document declared upon 1awphil.net Under statutes similar to
our own it has been held that the admission of the genuineness
The facts of this case are not greatly dissimilar from those to be
and due execution of the instrument does not bar the defense of
found in Hibberd vs. Rohde and McMillian([1915], 32 Phil., 476), want of consideration. And in Kentucky in actions based upon
relating to the defenses permissible where an instrument was promissory notes the consideration for which were gambling
submitted by the plaintiff, and not denied under oath by the debts, it has been held that such an admission does not prevent
defendant, and to the subject of contracts against public policy. the defense of illegality of consideration. In Freeman vs. Ellison
The doctrine there announced need not be incorporated in this (37 Mich., 458), it was said: "It is now claimed for plaintiff below
decision. that this (rule) precludes any inquiry into the date of delivery or
the circumstances of the signing as bearing on any defenses
dependent on time in any way.
We resolve each assignment of error against the appellants, and
having done so, affirm the judgment of the trial court, with costs There is no authority that we know of or any such
of this instance against the appellants. So ordered. construction of the rule. Undoubtedly when a plaintiff
produces in court an instrument corresponding to the
one set forth he is exempted from proving its
execution. But the actual time of delivery may involve
questions which it would be absurd to hold foreclosed
by any such assumption, If a note is dated back in
order to include usurious interest, and that defense is
set up, it would hardly be regarded as bearing on the
question of execution. Execution can only refer to the
actual making and delivery, but it cannot involved other
matters without enlarging its meaning beyond reason.
The only object of the rule was to enable a plaintiff to
make out a prima facie, not a conclusive case, and it
cannot preclude a defendant from introducing any
defense on the merits which does not contradict the
execution of the instrument introduced in evidence.

To so interpret section 103 as to prohibit such a defense as


illegality of consideration, which is clearly a defense of new
G.R. No. L-8418 December 9, 1915 matter, would pro tanto repeal the second paragraph of section
94, which permits a defendant to answer by "A statement
CIVIL PROCEDURE RULE 7-9 FULL TEXT
of any new matter constituting a defense or counterclaim." recognizes the civil liability of offenders (arts. 119, et seq). In this
Likewise, section 285 provides that the terms of a writing may civil liability the State has no interest other than its undertaking
be impeached by reason of its illegality or fraud. We do not to aid the injure person in securing compensation for his injuries,
understand that such defenses are barred by the provisions of and it cannot be doubted that if the injured person so desires he
section 103. We accordingly hold that the special defense may privately negotiate with the criminals or with persons
interposed by the defendant of illegality of consideration is not interested in the latter for the settlement of his private damages.
barred by his failure to enter a verified denial of the genuineness Article 1813 of the Civil Code provides that a civil action arising
and due execution of the note set out in the complaint. Hence, from a crime may be compromised, but the public action for the
the evidence in support of that plea was competent. The note imposition of the legal penalty shall not be extinguished thereby.
reads as follows:itc-a1f So long as the right of the State to exact the penalty for the
public offense is not trenched upon, there is nothing unlawful or
BAGUIO, BENGUET, April 27th, 1911.
immoral in such a contract. And mere threats of prosecution will
For value received, we the undersigned parties, jointly and not vitiate an instrument given for an amount embezzled or for
severally agree to pay to the firm of Brand & Hibberd, of the the value of property feloniously taken, unless coupled with an
city of Baguio, P. I., twelve hundred pesos, Philippine agreement not to prosecute if the instrument be given. A mere
currency, in monthly installments of one hundred pesos per expectation of the one of the parties that the settlement of the
month, beginning with the first day of June, 1911. (Not civil injuries will stop the public prosecution is not sufficient to
transferable, excepting to Jos. C. Brand or L.O. Hibberd.) make such a contract void as against public morals or public
policy. As was said in Moog vs. Strang (69 Ala., 98), the law
WM. J. ROHDE.
does not "seek to control the hope or expectation of the
D. J. MCMILLIAN.
offender. He may very reasonably, in many cases, expect that
the prompt settlement of a discovered default may tend to
paralyze the energy of an incipient prosecution, and however
According to the testimony of the defendant Rohde, McMillian reprehensible the motives of the parties, they are not cognizable
was in the retail liquor business and secured a stock of by the courts so long as their minds falls short of concurring in
merchandise valued at P1,200 from Brand & Hibberd and sold an agreement, express or implied, to compound or not to
it. Alleging that they delivered the merchandise to him on prosecute as the consideration in part or in whole of the
deposit only, Brand & Hibberd filed a complaint of estafa against payment of the debt or damages resulting from the crime
McMillian. McMillian was arrested and released on bond committed."
pending the preliminary hearing before the justice of the peace.
The defendant Rohde was a practicing attorney and undertook
McMillian's defense in the estafa case. Rohde testified that he In this country a personal is not an accessory to a public offense
was well acquainted with the nature of the transaction between except in the cases expressly provided by law. In
the firm of Brand & Hibberd and McMillian; that the merchandise Goodrum vs. Merchants & Planters Bank , it appears that
was sold outright to McMillian; that he know the estafa complaint Goodrum was manager of bank and that one Eagle held the
was absolutely without foundation; and that McMillian could not majority of the bank's capital stock and controlled its policies.
possibly be convicted; but that one Sullivan informed him after Goodrum defaulted, and to settle his shortage executed a trust
the preliminary hearing was held that he knew positively that deed which was to be surrendered to the bank in case an
McMillian would be bound over for trial in the Court of First examination shows that he was criminally liable. In a suit by the
Instance. In rebuttal, Sullivan testified that what he told Rohde bank to compel the conveyance, Goodrum sought to show the
was that he was satisfied from the evidence introduced at the illegality of the contract by evidence that he had been promised
hearing that McMillian would be held for trial in the Court of First immunity from criminal prosecution if he would make good the
Instance. Upon the strength of Sullivan's statement, Rohde shortage. Eagle testified that he promised that, if the
agreed to sign the note reproduced above if Brand & Hibberd conveyance were made, "We won't lie around the courthouse
would withdraw the estafa complaint. He did this because he did and try to prosecute him: but if the grand jury calls on me and
not want his client to remain in confinement pending his trial in asks me to explain these books and asks me if the shortage
the Court of First Instance, which would not have occurred for occurred upon the expert's report, I will tell them everything I
three months. His client was sick at the time and Rohde was know about it." The court said: "We do not think that this
afraid that confinement in the jail for such a period of time would statement of Mr. eagle in effect that he would not go before the
seriously endanger his health. After the execution of the note, grand jury until summoned to appear was an implied agreement
Brand & Hibberd moved in the justice court that the estafa either to withhold testimony, conceal the crime, or to stifle the
complaint be dismissed and this motion was granted by the prosecution under the facts and circumstances of this case. The
presiding justice. In the order dismissing the complaint, the charges made against Goodrum that he was short in his
justice stated that, from the evidence introduced at the hearing accounts with the bank, and criminally so, were not only known
he was convinced that there was no sufficient basis for a to all the directors and persons present at the conference, but
criminal action, but that the controversy was of a civil character. they had been published to the world, and the knowledge
Rohde subsequently paid two hundred pesos on the note. The thereof rife amongst the people of that community, if not also
note was assigned to the plaintiff L.O. Hibberd, on June 10, amongst the people of the country. This is not a case where the
1911. charges were only known by a few persons, and upon their
failure to divulge them they would not come to the notice or
knowledge of the public or to those to whom the prosecution of
Any agreement which has for its purpose the concealment of a crime is entrusted by the law. ... At the most, Eagle only stated
public offense, the suppression of evidence thereof, or the that he would not instigate a prosecution. ... Because he would
stifling of a criminal prosecution already commenced is contra remain passive relative to matters of which the public authorities
bonos mores and against public policy. Every successful attempt had full knowledge, it can not be said that he thereby agreed to
to shield persons guilty of such offenses adds impetus to crime shield Goodrum from any public prosecution."
by encouraging the culprits and all others of criminal tendencies
who may learn of such perversions of justice, to commit further
offenses. A person suffering pecuniary from the commission of In Nickelson vs. Wilson (60 N.Y., 362), it was said: "But an
such a crime may not barter away the benefits of public order agreement to lay the whole facts before the court, and to leave it
and the personal safety and security of the people by to the free exercise of the discretionary powers vested in it by
representing to the culprit that he will actively aid in the task of law, is not in itself wrong, and is not rendered illegal even by a
securing immunity from the public prosecution if his civil stipulation on the part of a prosecutor to exert such legitimate
damages are made good. Courts are charged with the duty of influence as his position gives him in favor of the extension of
administering the law, and they should not lend their aid to the mercy to a guilty party."
enforcement of any contract which looks to its perversion. Nor is
it important that the shielding of the guilty party was a minor Whether the tendency of an agreement is to interfere with the
consideration of the agreement, or necessary that a crime shall due enforcement of criminal law is always a question of fact.
have been in fact committed. The intention of the parties to
obstruct criminal justice to whatever extent taints the entire
contract and makes it unenforcible. The courts will not interfere In the case at bar, the finding of fact made by the court below
either to rescind an executed contract or to enforce an have been duly submitted to us for review. The trial court found
executory contract of such character. The parties are left just as a fact that the consideration of the note was the compromise
where they are found. of a public offense. We do not think that the evidence justifies
this conclusion. It is true that the defendant Rohde testified that
the consideration of the note was "the withdrawal of the false
A very large number of public offenses, however, inflict charge against him (McMillian) and to get him out of jail." But it
pecuniary damage on private persons. The Penal Code is also in evidence that McMillian owed Brand & Hibberd the full
CIVIL PROCEDURE RULE 7-9 FULL TEXT
amount of the note and Rohde knew this fact before he signed SEGUNDINO TORIBIO, EUSEBIA TORIBIO, and the HEIRS
the note. There is no charge that Brand & Hibberd file the OF OLEGARIO TORIBIO, represented by his widow, ADELA
criminal complaint with a view of extorting a settlement of their DE LOS REYES, petitioners,
claim against McMillian. The hearing at the preliminary
vs.
investigation was duly had and all the evidence was before the
justice of the peace before the agreement represented by the THE HON. JUDGE ABDULWAHID A. BIDIN, in his capacity
note was made. It is not shown that Brand & Hibberd agreed not as Presiding Judge, Branch I, Court of First Instance, City
to testify in any further criminal proceedings against McMillian, of Zamboanga, DALMACIO RAMOS, and JUANITO
or that they would suppress any evidence in their possession, or CAMACHO, respondents.
that they would solicit the State's prosecutor or any other
Government official whose authority extend to the criminal case,
to not hold the defendant for trial. What they actually did was to
move in open court for a dismissal of the complaint. This is all
they did so far as the record shows, and that it was satisfactory GUTIERREZ, J.:
to the defendant Rohde is apparent from the fact that he
subsequently made partial payments on the note.
This petition is premised on the interpretation and application of
Sections 7 and 8, Rule 8 of the Revised Rules of Court on
There can be no doubt that the agreement which resulted in the
execution of the note was entered into by Brand & Hibberd with actionable documents, which state:
an eye to the satisfaction of their pecuniary claim against
McMillian. From the testimony of Rohde himself it appears that SEC. 7. Action or defense based on document.
he strongly insisted that McMillian was not guilty of the crime Whenever an action or defense is based upon a written
charged, and no doubt his ability as a lawyer tended to convince
instrument or document, the substance of such
the complainants that the criminal charge was unjustified. If they
became converted to this view of the matter, they no doubt more instrument or document shall be set forth in the
readily consented not to actively assist in the further prosecution pleading, and the original or a copy thereof shall be
of the criminal complaint. We do not think the record justifies a attached to the pleading as an exhibit, which shall be
more radical conclusion as to what Brand & Hibberd agreed to deemed to be a part of the pleading, or said copy may
do with reference to the criminal phase of the transaction than with like effect be set forth in the pleading.
that they promised not to further actively participate in the case.
The record does not justify the conclusion that they went further
and agreed to actively assist in preventing the due investigation SEC. 8. How to contest genuineness of such
of the criminal charge by suppressing evidence, by declining to documents. When an action or defense is founded
appear against McMillian if duly subpoenaed as witnesses, or by upon a written instrument, copied in or attached to the
other means. In our opinion, the case is similar in many aspects corresponding pleading as provided in the preceding
to Goodrum vs. Merchants & Planters Bank (102 Ark., 326), to
section, the genuineness and due execution of the
which we have referred above. The record indicates the same
passivity on the part of the injured party and the same publicity instrument shall be deemed admitted unless the
of the criminal charge. There having been no agreement to adverse party, under oath, specifically denies them, and
interfere with the due administration of the criminal law, we are sets forth what he claims to be the facts; but this
constrained to hold that no part of the consideration of the note provision does not apply when the adverse party does
declared upon his illegal or against public policy. The plaintiff is not appear to be a party to the instrument or when
therefore entitled to judgment. The judgment appealed from is compliance with an order for an inspection of the
reversed and judgment is decreed against the defendant Rohde
original instrument is refused.
for the sum of one thousand pesos, the amount remaining
unpaid on the note, together with legal interest from the date of
the institution of this action. Without costs. So ordered. The present controversy stems from a complaint filed by the
petitioners against private respondents Dalmacio Ramos and
Juanita Camacho.

Engracio Francisco and Juliana Esteban were the registered


owners of the parcel of land Zamboanga. At the death of said
spouses, they were survived by their ten (10) children who
inherited their state in equal pro indiviso shares. Subsequently,
the property was subdivided among the heirs and a portion
designated as Lot No. 1943-B was allotted to the Justa
Francisco. Justa died and was survived among by eight (8)
children namely: Dionoso, Eufremia, Alfonso, Rafael, Petrona,
Olegario, Segundino and Eusebia, all surnamed Toribio, who
eight heirs, Eufremia, Alfonso and Petrona, sold their in the
property to Ramon Ledesma. Rafael also sold his share to
Dinisio who, in turn, sold the same to Ramon Ledesma. Thus,
the latter acquired four (4) shares out of eight (8) shares, or a
pro indiviso share of Lot 1943-B.

Subsequently, Dionisio sold his own hereditary share in the


aforesaid estate of his mother to Juanito Camacho, who by said
sale acquired a 1/8 pro indiviso share of the property.

The three other heirs, petitioners Segundino Eusebia and


Olegario alleging that their shares had never been sold nor in
any wise transferred or disposed to others filed a case against
herein private respondents for recovery of hereditary rights. How
Juanito Camacho, who was entitled to only a total area of 931
square meters, nor, how one Dalmacio Ramos, Jr., acquired
share of the property was allegedly not known to them.

In their answer, the defendants-respondents alleged that the


shares of plaintiffs-petitioners had likewise been sold to Dionisio
G.R. No. L-57821 January 17, 1985
Toribio, their brother, who, in turn, sold the same to Juanito
CIVIL PROCEDURE RULE 7-9 FULL TEXT
Camacho and Dalmacio Ramos. The alleged sale from CAMACHO and DALMACIO C. RAMOS, JR., on
petitioners to Dionisio and the sale from Dionisio to the November 11, 1964 as adverted to in the preceding
respondents were evidenced by deeds of sale, xerox copies of paragraph, as will be discussed further in the specific
which were appended to and made an integral part of the and/or affirmative defenses hereunder; ...
respondents' partition agreement between the respondents and
also a xerox copy of the respondents' transfer certificates of title. As heretofore alleged, the hereditary shares of all the
plaintiffs herein in and over Lot 1943-B were all sold,
While testifying during the trial, Eusebia Toribio was asked transferred and conveyed in favor of DIONISIO TORIBIO
whether she executed any sale of her share in the parcel of land plaintiffs OLEGARIO TORIBIO and SEGUNDINO
in litigation. The counsel for private respondents objected, TORIBIO on October 24, 1964 and that of plaintiff
raising the proper mode of contesting the genuineness of an EUSEBIA TORIBIO on November 2, 1964, by virtue of two
actionable document pursuant to Sections 7 and 8, Rule 8 of the (2) deeds of sale all of which were acknowledged before
Revised Rules of Court. The trial court sustained the objection. Notary Public for and within the City of Zamboanga, Atty.
Armando B. Torralba and entered as Doc. No. 6, Page No.
Petitioners, thereupon, filed a constancia with a motion for 3, Book No. IX, Series of 1964, respectively, in his notarial
reconsideration stating that the documents submitted by the register, xerox copies of which are appended hereto to
respondents were merely evidentiary in nature, not a cause of form integral part hereof as Annexes "1" & "2",
action or defense, the due execution and genuineness of which respectively.
they had to prove. They alleged that the subject of litigation was
the hereditary shares of plaintiffs-petitioners, not any document. From the foregoing, it is clear that the respondents anchor their
They stated that the defense consisting mainly of transfer defense on the deeds of sale by virtue of which the hereditary
certificates of titles in the respondents' names originating from rights of all the petitioners over Lot 1943-B were sold,
the sale from petitioners to Dionisio and from the latter to the transferred, and conveyed in favor of their brother, Dionisio
respondents were merely evidentiary in nature. They argued Toribio, who in turn sold the same to herein respondents. The
that a simple specific denial without oath is sufficient. The court deed of sale executed by the petitioners in favor of their brother
denied the motion for reconsideration. The documents attached Dionisio is an essential and indispensable part of their defense
to the respondents' answer and made an integral part thereof to the allegation that the petitioners had never disposed of their
were declared to be the very foundation or basis of the property.
respondents' defense and not merely evidentiary in nature.
Hence, this petition for review on certiorari. The following question furnishes an absolute test as to the
essentiality of any allegation: Can it be made the subject of a
The initial issue brought before us is whether or not the deeds of material issue? In other words, if it be denied, win the failure to
sale allegedly executed by the petitioners in favor of their prove it decide the case in whole or in part? If it will not, the fact
brother Dionisio Toribio and appended to the respondents' is not essential. It is not one of those which constitute the cause
answer are merely evidentiary in nature or the very foundation of action, defense, or reply (Sutherland's Code of Pleading,
of their defense which must be denied under oath by the Practice and Forms, p. 82). A fact is essential if it cannot be
petitioner. stricken out without leaving the statement of the cause of action
or defense insufficient.
The records show that the deeds of sale are actionable
documents. Apart from alleging that the documents in this case are merely
evidentiary, the petitioners also point out that the deeds of sale
Jurisprudence has centered mainly on a discussion of purportedly executed by them were in favor of their brother,
actionable documents as basis of a plaintiff's cause of action. Dionisio, who in turn executed deeds of sale in favor of the
Little has been said of actionable documents being the respondents. Under this circumstance, does the genuineness
foundation of a defense. The Rule, however, covers both an and due execution of the deeds evidencing the two transactions
action or a defense based on documents. have to be denied under oath?

The situation obtaining in the case at bar is not a common one. The deed of sale executed by Dionisio Toribio in favor of the
The usual case is between plaintiff and defendant where, the respondents, by itself, would be insufficient to establish a
latter, as his defense, would present a document to which both defense against the petitioners' claims. If the petitioners deny
parties are parties and which states that the former relinquishes that they ever sold their shares in the inherited lot to their
his rights to the defendant. In the case at bar, we have a brother Dionisio, a failure to prove the sale would be decisive.
situation where the defendant presented a document in his For if it can be shown that no conveyance of the property was
defense, a document to which the plaintiff is a party but to which executed by the petitioners, then Dionisio Toribio had no right to
defendant is not. Thus, the question arises as to whether or not convey what did not belong to him. The respondents could
the document is included as a necessary part of the defense so acquire only the rights that Dionisio had over the disputed
as to make it actionable. property. The genuineness and due execution of the deed
between the co-heirs is also elemental to the defense of the
respondents. The first deeds of sale, to which the respondents
The petitioners alleged in their complaint that their shares in the
were not parties but which they seek to enforce against the
inheritance left by their mother were never sold nor in any wise
parties are also actionable documents.
transferred or disposed to others.

The petitioners further alleged that this case falls under the
The defendants, in their answers, declare:
exception to Section 8, Rule 8 which provides:

xxx xxx xxx


SECTION 8. ... but this provision does not apply when
the adverse party does not appear to be a party to the
... that the hereditary shares of plaintiffs OLEGARIO instrument.
TORIBIO, SEGUNDINO TORIBIO and EUSEBIA
TORIBIO were likewise sold, transferred and conveyed,
As early as Lim-Chingco v. Terariray (5 Phil. 120), this Court
first in favor of DIONISIO TORIBIO by virtue of two (2)
gave the reason for the rule on contesting actionable
deeds of sale executed in due form on October 24, 1964
documents. The purpose is:
and November 2, 1964, respectively, and thereafter, by
DIONISIO TORIBIO in favor of defendants JUANITO A.
CIVIL PROCEDURE RULE 7-9 FULL TEXT
Reasonably construed, the purpose of the enactment (sec. xxx xxx xxx
103) appears to have been to relieve a party of the trouble
and expense of proving in the first instance an alleged fact, The complaint was verified under oath by the petitioners.
the existence or nonexistence of which is necessarily within
the knowledge of the adverse party, and of the necessity (to
his opponent's case) of establishing which such adverse The petitioners' counsel was obviously lulled into complacency
party is notified by his opponent's pleading. by two factors. First, the plaintiffs, now petitioners, had already
stated under oath that they never sold, transferred, or disposed
of their shares in the inheritance to others. Second, the usual
This being so, the documents have to be treated in like manner.
procedure is for a defendant to specifically deny under oath the
The petitioners are themselves parties to the deeds of sale
genuineness and due execution of documents set forth in and
which are sought to be enforced against them. The complaint
annexed to the complaint. Somehow, it skipped counsel's
was filed by the petitioners. They filed suit to recover their
attention that the rule refers to either an action or
hereditary properties. The new owners introduced deeds of sale
a defense based upon a written instrument or document. It
as their main defense. In other words, the petitioners brought
applies to both plaintiffs and defendants.
the issue upon themselves. They should meet it properly
according to the Rules of Court.
Under the facts of this case, the private respondents were
placed on adequate notice by Paragraph 11 of the verified
Sections 7 and 8 of Rule 8, therefore, apply. The proper
complaint that they would be caned upon during trial to prove
procedure was for the petitioners to specifically deny under oath
the genuineness or due execution of the disputed deeds of sale.
the genuineness and due execution of the questioned deeds of
sale and to set forth what they claim to be the facts. However,
the oversight or negligence of petitioners' counsel in not properly Moreover, the heirs of Olegario Toribio, his widow and minor
drafting a reply to the answer and an answer to the counter children represented by their mother, are among the plaintiffs-
claim is not necessarily fatal to their cause. petitioners. They are not parties to the deeds of sale allegedly
executed by their father, aunt, and uncle. They are not required
to deny the deeds of sale under oath. The private respondents
The facts of the case and equitable considerations constrain us
will still have to introduce evidence to establish that the deeds of
to grant the petition and to set aside the questioned order of the
sale are genuine and that they were truly executed by the
respondent court.
parties with authority to dispose of the disputed property.

As stated earlier, the reason for the rule is to enable the adverse
It bears repeating that rules of procedure should be liberally
party to know beforehand whether he will have to meet the issue
construed to the end that substantial justice may be served. As
of genuineness or due execution of the document during trial.
stated in Pongasi v. Court of Appeals (71 SCRA 614):
(In re Dick's Estate, 235 N.W. 401). While mandatory, the rule is
a discovery procedure and must be reasonably construed to
attain its purpose, and in a way as not to effect a denial of We repeat what We said in Obut v. Court of Appeals, et
substantial justice. The interpretation should be one which assist al., supra, that 'what should guide judicial action is the
the parties in obtaining a speedy, inexpensive, and most principle that a party-litigant is to be given the fullest
important, a just determination of the disputed issues. opportunity to establish the merits of his complaint or
defense rather than for him to lose life, liberty, honor
Paragraphs 11 and 13 of the petitioners' complaint reads:
or property on technicalities.

xxx xxx xxx In dispensing justice Our action must reflect a deep
insight into the failings of human nature, a capability for
making allowances for human error and/or negligence,
11. That the share of herein Plaintiffs were never sold or in
and the ability to maintain the scales of justice happily
any wise transferred or disposed to others;
well-balanced between these virtues and the application
of the law.
xxx xxx xxx

An interpretation of a rule of procedure which would not deny to


13. That just how and by what means Defendant,
the petitioners their rights to their inheritance is warranted by the
JUANITO CAMACHO was able to acquire the total area of
circumstances of this case.
931 square meters, is not known; however, the acquisition
might have been effected, the same was in fraud of herein
plaintiffs; and so with the share of Defendant, DALMACIO WHEREFORE, the order of the respondent court dated July 20,
C. RAMOS, Jr., herein Plaintiffs, jointly and/or severally, 1981 is hereby REVERSED and SET ASIDE. The Regional Trial
do not know the person; and, however he might have Court which took over the cases of the respondent court is
acquired the said share of ONE FOURTH () of the ordered to receive the petitioners' evidence regarding the
property, was not from either, much less all of the genuineness and due execution of the disputed deeds of sale.
Plaintiffs;

SO ORDERED.