You are on page 1of 20

1997 Rules on Civil Procedure Rule 03

2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Rule 03
PARTIES TO CIVIL ACTIONS
CLASSES OF PARTIES:

I. Real Parties in Interest


II. Representative Parties
III. Permissive Parties
IV. Indispensable Parties
V. Necessary Parties

Sec. 1. Who may be parties; plaintiff and defendant. - Only natural or


juridical persons, or entities authorized by law may be parties in a civil action.
The term "plaintiff" may refer to the claiming party, the counter-claimant, the
cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant"
may refer to the original defending party, the defendant in a counterclaim, the
cross-defendant, or other third (fourth, etc.)-party defendant. (1a)

Q: Who may be parties to a civil case?


A: Only natural or juridical persons or entities authorized by law may be parties in a civil action. So,
you cannot sue or be sued unless you are a person. A dead man cannot sue and he cannot be sued because
he has no more personality.

That is why in one case, Brod Pito sued the firm name, “Paningkamot Store.” So, it is “Brod Pito vs.
Paningkamot Store.” The SC said, that is wrong. Paningkamot Store is not a person. PangaIan ng
tindahan iyan. The correct procedure is you sue the owner because he is the real person. But the defect
is not really substantial. It is only a formal defect that can easily be corrected.

“ENTITIES AUTHORIZED BY LAW”

Q: Give an example of an entity authorized by law which can be sued although it is not a person.
A: The best example is Section 15 of this rule.

Section 15. Entity without juridical personality as defendant.- When two or


more persons not organized as an entity with juridical personality enter into u
transaction, they may be sued under the name by which they are generally or
commonly known.
In the answer of such defendant the names and addresses of the persons
composing said entity must all be revealed.

Another example of an entity authorized by law which may not be a natural or juridical person is a
labor union under the Labor Code. It is an entity authorized by law to file a case in behalf of the of its
members. Although it may not have been incorporated under the Corporation Law but registered under
the Labor Code.

Q: Who are the plaintiffs, defendants?


A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the counter-claimant,
the cross-claimant, the third (fourth, etc.)- party plaintiff. So, the word ‘plaintiff’ covers them.

The term DEFENDANT may refer to the original defending party, the defendant in a counterclaim,
the cross-defendant, or other third (fourth, etc.)-party defendant. These are explained in Rule 6, Sections
6, 8 & 11.

I. REAL PARTIES IN INTEREST

Sec 2. Parties in interest. - A real party in interest is the party who stands
to be benefited or injured by the judgment in the suit, or the party entitled to
the avails of the suit. Unless otherwise authorized by law or these Rules, every
action must be prosecuted or defended in the name of the real party in interest.
(2a)

Property of LAKAS ATENISTA 74


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Q: Who is a real party in interest?


A: A real party in interest is the party who stands to be benefited or injured by the judgment in the
suit. (Section 2)

That is a new sentence taken form jurisprudence because the prior rule never gave a definition of real
parties in interest but jurisprudence gives a definition. That definition is taken from the leading case of
SALONGA VS. WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is defined and that
definition has been repeated through the years.

every action must be prosecuted or defended


in the name of the real party in interest

So a complaint is dismissible if it is not made in the name of the real party in interest.

In an action to recover a piece of land , you do not file a case against tenant. He is not the real party
in interest. You must file the case against the owner of the land.

When you are riding in a bus which collided and you were injured, do not file a case against the
driver for damages. Your contract in not with the drive. Your contract is with the operator. So you file a
case of culpa contractual against the owner or operator.

GENERAL RULE: In a breach of contract, the real parties in interest are the parties to the contract. So
strangers, as a rule, have no business suing in a contract because they are not real parties in interest.
EXCEPTION: When there is a stipulation in the contract favorable to a third person (stipulation pour
autrui – Art. 1311, NCC) Example: Third-Party Liability (TPL) in insurance. A insured his car with B for
TPL. A bumped C. C can file a case against A and B to recover from the insurance contract.

BALIWAG TRANSIT vs. COURT OF APPEALS


169 SCRA 649 [1989 BAR]

FACTS: A student who was riding in one of the Baliwag buses met an accident. So, an
action was filed where the parents and the injured boy were the co-plaintiffs against Baliwag
Transit. While the case was going on, the boy entered into amicable settlement with the bus
company. Based on the settlement, Baliwag moved to dismiss the case. The parents objected,
“We are objecting because we are also plaintiffs. We didn’t know about the settlement. We
were the ones who spent money, therefore it should not be dismissed simply because our son
is withdrawing the case.”

HELD: The parents are not the real party in interest. The were not the passengers. The real
parties in a contract of carriage are the parties to the contract itself. “In the absence of any
contract of carriage between the transportation company and the parents of the injured party,
the parents are not real parties in interest in an action for breach of contract.”

SALONGA vs. WARNER BARNES


88 Phil. 125 [Bar Problem]

FACTS: Aiza Guadolope decided to go abroad but she has properties in the Philippines.
So she executed a special power of attorney in favor of Ken A. Sabayah: “You have the full
power to administer, to collect all my money; to withdraw my money in the bank; with full power to
sue these people who owe me; with the authority to hire a lawyer; and enter into a contract. Practically,
you are my alter ego.” And then Aiza went abroad.

Property of LAKAS ATENISTA 75


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Ken started to manage the property. One of the tenants failed to pay rentals. So in
accordance with the authority, he hired a lawyer. In preparation of the complaint, it was
stated that, “ Ken, plaintiff vs. Lewee Yoda, defendant.”

ISSUE: Is the action properly filed?

HELD: NO. The real property in interest is the principal, the owner of the property. Ken
is only an attorney-in-fact. An attorney-in-fact cannot use in his own name because he is not
the real party in interest. Ken is given the authority to sue, to manage, hire a lawyer but not
as the plaintiff because the real party in interest is Aiza. The complaint should be name as
“Aiza, plaintiff vs. Leewee Yoda, defendant.” Yaan!

Q: Suppose Ken, the lawyer will amend the complaint: “Ken, as attorney-in-fact of Aiza, plaintiff vs.
Leewee Yoda, defendant” is the complaint properly filed.
A: NO. This is even worse because Ken is admitting that he is only an attorney-in-fact. The more
reason na nahalata ka that he is not the real party in interest. If Ken wants to include the his name, it
should be: “Aiza, plaintiff, represented by Ken, his attorney-in-fact vs. Leewee Yoda, defendant.”

Q: Does the law require Aiza to come here to file the case?
A: NO. Take note that the law does not require the principal (A) to come back to file the case because,
the law does not say “every action must be prosecuted and defendant BY the real party in interest.”
Hindi naman sinabing “by” eh. So an attorney-in-fact can prosecute or defend a party but in the name of
the real party in interest. The real party in interest has submitted to the jurisdiction of the court by filing
the complaint through his lawyer.

II. REPRESENTATIVE PARTY

Sec. 3. Representatives as parties. - Where the action is allowed to be


prosecuted or defended by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the case and shall
be deemed to be the real party in interest. A representative may be a trustee of
an express trust, a guardian, an executor or administrator, or a party authorized
by law or these Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal except
when the contract involves things belonging to the principal. (3a)

Section 3 is a relaxation of Section 2 because under Section 2, you cannot sue and be sued if you are
not the real party in interest. But Section 3 allows one who is not a real party in interest to sue and be
sued in behalf of somebody else. It is possible if you can qualify as a representative party.

Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be filed in
behalf of the minor. A minor cannot use and be sued but she is the real party in interest. The law allows
the parents to come in and also be the plaintiff. The parents are what we the representative party. The
law still requires for the minor to be included in the case. The law states that “the beneficiary shall be
included in the title of the case and shall be deemed to be the real party in interest.”

Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example is a trustee of an express


trust, or executor or administrator of the estate of a deceased person. When a person dies, what survives
after him is his estate which represent everything that is left behind. This later on will be given to his
heirs. But for the meantime under the law on succession, the executor or administrator will take charge
of his property.
Q: If the estate of the deceased has some collectibles, who will file the case?
A: The administrator or executor as the representative party. If you want to sue the estate, you should
sue the estate through the administrator or executor.

CHING vs. COURT OF APPEALS


181 SCRA 9

Property of LAKAS ATENISTA 76


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money. The problem
is, she cannot locate John’s whereabouts. Also, Maya was not certain whether John is dead
or alive. So, to play it safe, what the Maya did was to file a case against the “defendant and/or
the estate of defendant.” Maya obtained a judgment against the ‘defendant and/or the estate
of defendant.’
Later on when the judgment was enforced, it turned out that the John was already dead
(tsk! tsk!) but he has properties left behind. So, they started to take hold of their properties.
Now, the heirs of the John challenged the decision.

ISSUE: Whether or not there was a valid judgment against the ‘defendant/or the estate of
the defendant.”

HELD: The decision is void. “The decision of the lower court insofar as the deceased is
concerned, is void for lack of jurisdiction over his person. He was not, and he could not have
been validly served with summons. He had no more civil personality. His juridical
personality, that is fitness to be subject of legal relations, was lost through death (Arts. 37 and
42 Civil Code).”
“The same conclusion would still inevitably be reached notwithstanding joinder of B’s
estate as co-defendant. It is a well-settled rule that an estate can sue or be sued through an
executor or administrator in his representative capacity.”

So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the
administrator of his estate. So, either way, the case cannot prosper.

The last sentence of Section 3:

An agent acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except when the contract involves
things belonging to the principal.

The agent cannot sue because the principal is the real party in interest. But when an agent acts in his
own name and for the benefit of an undisclosed principal, he may sue and be sued, EXCEPT when the
contract involves things belonging to the principal. Under the exception, the principal has really to be
included. The agent cannot file a case where the principal will lose his property without being named as
part to the case.

Sec 4. Spouses as parties. - Husband and wife shall sue or be sued jointly,
except as provided by law. (4a)

Normally, the husband and the wife should sue and be sued together. Even if the wife borrowed
money alone and you want to sue the woman, still the husband should be included. Why? In the property
relationship between the husband and wife, they are governed by absolute community or conjugal
partnership. Whether you like it or not, the implication of the wife is also the implication of the husband
because of the property relationship.

In the same manner, if the wife wants to collect, even if the husband does not know anything about
it, the husband should still be named as party plaintiff, on the ground again that in the income that she
can get redounds to the benefit of the conjugal partnership.

And there were decided cases in the part where even if for example, a wife sues without the husband,
the defect is not fatal but merely format. The complaint should not be dismissed. All that is to be done is
to amend the complaint impleading the husband. (Cuyugan vs. Dizon, 76 Phil. 80)

Q: Give an exception to that general rule that husband and wife shall sue or be sued jointly.

Property of LAKAS ATENISTA 77


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

A: The EXCEPTION is in case of Complete Separation of Property (Article 145, Family Code), and
under Article 111, Family Code:

Art. 111. A spouse of age may mortgage, alienate, encumber or otherwise dispose
of his or her exclusive property without the consent of the other spouse and
appear alone in court to litigate with regard to the same. (Family Code)

Sec 5. Minor or incompetent persons. - A minor or a person alleged to be


incompetent, may sue or be sued, with the assistance of his father, mother,
guardian, or if he has none, a guardian ad litem. (5a)

Section 5 is related to Section 3. The minor or incompetent person must be assisted by the parents
and considered as representative party. Incompetent persons includes insane people or mentally
retarded people. They are supposed to be under the custody of other persons, the guardians. If no
guardian, the court has to appoint a guardian called the guardian ad litem.

III. PERMISSIVE PARTY

Sec 6. Permissive joinder of parties. - All persons in whom or against any


right to relief in respect to or arising out of the same transaction or series of
transactions is alleged to exist, whether jointly, severally, or in the
alternative, may, except as otherwise provided in these Rules, join as plaintiffs
or be joined as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the action;
but the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (6)

Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2 on joinder
of causes of action because when there is proper joinder of parties, necessarily there is also automatic
joinder of causes of action. But there could be joinder of causes of action without joinder of parties.

Q: May two or more persons join in one complaint as plaintiffs? Or can two or more persons be
joined together as defendants?
A: YES, under two conditions, to wit:

1.) There is a right to relief in favor of or against or against the parties joined in respect to or
arising out of the same transaction or series of transactions; and

2.) There is a question of law or fact common to the parties joined in the action.

PROBLEM: Suppose some passengers riding a particular common carrier are injured because of an
accident. All of them want to sue the operator of the carrier for damages arising out of the breach of
contract of carriage. Under the Law on Transportation, it possible for each passenger to file his own case
because our causes of action are different from each other. But can they be joined together in one
complaint against the common carrier?
A: YES because there is a common question of law or fact in the causes of actions of the injured
passengers: the evidence is identical; the issues whether the carrier is at fault are the came; the witnesses
for both parties will be the same; the report will be the same; the defense of the operator against one
party will be the same defense as against the other passenger. So, since there is a common
denominator on their causes of action, they can be joined.

It would be different if the passengers were riding on different buses belonging to the same company,
and all of them met an accident. What happened to Passenger No. 1 does not concern Passenger No. 2.
The evidence will not be the same. So, there is no common denominator – no common question of fact.
Therefore, they cannot be joined.

Property of LAKAS ATENISTA 78


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng kings.
They were allegedly involved in jueteng – these are the jueteng kings: Ken, Kenneth, Francis, Thad and
Sheriff. Now, the five of them want to sue the Inquirer for damages arising from libel. Is it possible for
the five (5) people named in the article to file only one complaint against the editor and publisher of the
Inquirer?
A: YES because it is of the same story. Their names appeared in the same story. It is not a different
issue. So there is a common question of act law in their cause of action.

PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and causing injury
to other passengers. So, there are three offended parties : the owner of the vehicle, the driver of the vehicle
, and the passenger. There are three(3) causes of action. Can they join in one complaint against Myra, the
owner of the car which bumped them?
A: YES because there is a common question of fact and law. There is only one accident.

Q: But suppose the three of them will file 3 separate cases against Myra, puwede?
A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga ‘permissive’ eh! It is
not mandatory but optional although the law encourages permissive joinder of parities.

Q: Why does the law encourage joinder of parties?


A: The following are the reasons:

1.) to promote convenience in trial;


2.) to prevent multiplicity of suits;
3.) to expedite the termination of the litigation; and
4.) to attain economy of procedure under which several demands arising out of the same
occurrence may be tried together thus avoiding the repetition of evidence relating to facts
common to the general demands.

Now, take note that when there is joinder of parties, there is automatically a joinder of causes of
action. That is why one of the conditions of limitations in joinder of causes of action is you must observe
the rule on joinder of parties. If joinder of parties is improper under Rule 3, the joinder of causes of action
is also proper under Rule 2, Section 5

Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A JOINDER OF CAUSES OF


ACTION. BUT THERE CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A JOINDER OF
PARTIES.

Paano yun?

EXAMPLE: When there is only one plaintiff and one defendant: Suppose Melissa will secure three
(3) loans from me.
Q: How many causes of action do I have if Melissa will not pay me?
A: Three (3) man ba!

Q: Now, can I join them in one complaint?


A: Yes.

Q: Is there joinder of causes of action?


A: Yes.

Q: Is there joinder of parties?


A: NONE, because there is only one plaintiff and one defendant.

So, there can be joinder of causes of action without joinder of parties because there is only one plaintiff
and one defendant. But if you join parties in Rule 3, automatically, there is joinder of causes of action.
This is the relationship of these two provisions.
Property of LAKAS ATENISTA 79
1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Finally, the last two types of parties to the action are the so-called indispensable parties and necessary
parties. (Section 7 and Section 8, respectively)

INDISPENSABLE PARTY and NECESSARY PARTIES

Sec. 7. Compulsory joinder of indispensable parties. Parties in interest


without whom no final determination can be had of an action shall be joined either
as plaintiffs or defendants. (7)

Sec. 8. Necessary party. A necessary party is one who is not indispensable but
who ought to be joined as a party if complete relief is to be accorded as to those
already parties, or for a complete determination or settlement of the claim
subject of the action. (8a)

Take note that under the Old Rules, Section 8, the party there was called ‘proper party.’ Now they
change the word from ‘proper party’ to ‘necessary party.’ This readopts the old name under the 1940
Rules. Under the old rules, the parties were either indispensable or necessary. Then under the 1964 Rule,
it was changed from ‘necessary’ to ‘proper.’ Now, under the new rule, back to its old name: ‘necessary
party.’

Q: Distinguish indispensable from necessary party.


A: An INDISPENSABLE PARTY must be joined under any and all conditions, his presence being a
sine qua non of the exercise of judicial power, for without him, no final determination can be had of the
action. (Borlasa vs. Polistico, 47 Phil. 345)
A NECESSARY PARTY ought to be joined whenever possible in order to adjudicate the whole
controversy and avoid multiplicity of suits, but if for some reason or another he cannot be joined, the
court may proceed without him and the judgment shall not prejudice his rights. (Ibid.)

Q: Give examples of indispensable party.


A: In an action for partition of land, all the co-owners thereof are indispensable parties. (De Lara vs.
De Lara, 2 Phil. 294) In an action for annulment of partition, all of the heirs must be made parties. (Caram
vs. CA, 101 Phil. 315) In an action for recovery of ownership of land, the person who claims to be the
owner of the land is the indispensable party defendant and not the one in possession as tenant. (Sanidad
vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 Phil. 938)

Q: Give examples of necessary party.


A: In an action for collection of debt instituted by the creditor against the surety, the principal debtor
is merely a necessary party. (Vaño vs. Alo, 95 Phil. 495) In an action for recovery of debt instituted by
the creditor against the debtor, the guarantor or surety is merely a necessary property. (Ibid.) In an action
for foreclosure of a real estate mortgage instituted by the first mortgagee, the second mortgagee is merely
a necessary party. (Somes vs. Gov’t of Phil., 62 Phil. 432)

REVIEW: What is the difference between a surety and a guarantor? The liability of guarantor to the
creditor is only secondary. Meaning, the guarantor is only liable to the creditor if the principal debtor
cannot pay like when the debtor is insolvent. On the other hand, a surety is principally liable to the
creditor whether or not the debtor can pay.

PROBLEM: In credit transactions, there is a creditor, debtor and surety. Debtor borrowed money
from the creditor, then another acted as the surety. Now, suppose the debtor will not pay, the creditor
files now a case against the surety without the debtor. The debtor was not included in the case.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.

Now, the surety may be ordered to pay. Pero bag binayaran ng surety iyong creditor, what will he
do next? He will now sue the principal debtor for reimbursement. Meaning, there is still a future case.
Thus, there could be no complete relief between those who are parties. So, the debtor is a necessary party,

Property of LAKAS ATENISTA 80


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

and not indispensable. But it is advisable to join the debtor in one case, para pag nag-claim ang creditor
from the surety, the latter can automatically claim from the debtor. Pang-one time ba!

PROBLEM: Kuya Mortz borrowed money from Doña Eugenia a.k.a. Genie. Ate Maya is the
guarantor. The Doña Genie filed a case against Kuya Mortz. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Q: YES because the guarantor is merely a necessary party. And if the debtor turns out to be insolvent,
the creditor will now file another case against the guarantor.

REVIEW: What is the difference between joint debtors and solidary debtors? In solidary, the creditor
can collect the whole obligation from any of the debtors without prejudice to the right of the latter for
reimbursement of his share in the obligation from his co-debtors. On the other hand, in joint obligation,
the creditor can only get from a debtor the latter’s share in the whole obligation. Meaning, the creditor
cannot compel the debtor to pay the share of his co-debtor. Kanya-kanya tayo.

PROBLEM: Manuel and Cathy are JOINT debtors of P100,000 (50-50 sharing). Doña Eugenia is the
creditor. Both did not pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES but Doña Eugenia can only collect from Manuel up to P50,000 only because of their joint
obligation. Cathy is only necessary insofar as Manuel’s share is concern. But Manuel is indispensable
party insofar as his share is concern.
Q: But if Doña Eugenia wants to collect the entire P100,000, what should she do?
A: She should file a case against both Manuel and Cathy.

PROBLEM: Manuel and Cathy are SOLIDARY debtors of P100,000 (50-50 sharing). Doña Eugenia is
the creditor. Both did not pay Doña Eugenia.
Q: If Doña Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES and Manuel is required to pay Doña Eugenia the whole amount of the debt because of solidary
obligation. Then Manuel can proceed against Cathy for reimbursement. Be is merely necessary party.

Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any


pleading in which a claim is asserted a necessary party is not joined, the pleader
shall set forth his name, if known, and shall state why he is omitted. Should the
court find the reason for the omission unmeritorious, it may order the inclusion
of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (8a, 9a)

If you do not implead a necessary party, you must give an explanation why did you not implead
him. The law requires as much as possible that all parties be impleaded to avoid multiplicity of suits.
EXAMPLE: Tato “The Hunk” files a case against Andre “The Hippie”, a surety, without including Sheriff
“The Punk” as the debtor. In the complaint of Tato, he shall explain why he is not including Sheriff.

Assuming that a necessary party cannot be impleaded, his non-inclusion does not prevent the court
from proceeding with the action. The judgment rendered shall be without prejudice to the rights of such
necessary party.

However, if the court finds no valid reason for not impleading a party, the court may order the
inclusion of the necessary party under Section 9. And take note that under the new rules, the failure to
comply with the order of inclusion without justifiable cause shall be deemed a waiver of the claim against
such (necessary) party.

EXAMPLE: If Tato, without justifiable cause, refuses to include Sheriff despite the order of the court,
and later on, Andre cannot also pay Tato, there is no way now for Tato to go against Sheriff anymore
because he (Tato) failed to comply with the order of inclusion without justifiable cause.

Property of LAKAS ATENISTA 81


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Sec. 10. Unwilling co-plaintiff. If the consent of any party who should be
joined as plaintiff can not be obtained, he may be made a defendant and the reason
therefor shall be stated in the complaint. (10)

This is particularly true with INDISPENSABLE parties – the case cannot proceed without you.

EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to recover
property which they believe was owned by their parents. Then, brother 4 say to sister 1, “Let us file a
case.” But sabi ni sister 1, “Pilitin mo muna ako.” Then she says, “Ayoko nga, hindi mo ako pinilit eh!”
Meaning, all of them will suffer because ayaw ni sister 1 mag-file ng kaso.

Q: Now, what is the remedy of the 4 brothers?


A: Under Section 10, include the one who refused as one of the defendants. If there is unwilling
plaintiff, name him as defendant whether he likes it or not.

MISJOINDER AND NON-JOINDER OF PARTIES

Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-
joinder of parties is ground for dismissal of an action. Parties may be dropped
or added by order of the court on motion of any party or on its own initiative at
any stage of the action and on such terms as are just. Any claim against a
misjoined party may be severed and proceeded with separately. (11a)

This is similar to Section 6 of Rule 2 – misjoinder of causes of action is not a ground for dismissal of
an action. Misjoinder or non-joinder at parties is not a ground for a motion to dismiss because at any
stage of the case, the court can order a misjoined party to be removed or a party not joined to be included.

Q: Do you know what ‘MISJOINDER of parties’ mean?


A: It means that two or more parties should not be joined but they are improperly joined. A good
example is, if there is no common question of fact or law. Meaning, you do not have any business to be
here but you are joined or misjoined. That is what we call misjoinder of parties. It is also known as
“spurious class suit.”

Well, ‘NON-JOINDER’ is different. A party who should be joined was not joined such as a necessary
party.

Q: What happens if a party is misjoined or if there is a non-joinder, should the case be dismissed?
A: Not, that is not a ground for dismissal.

Q: So what is the remedy then?


A: The remedy is to order the removal of the party who is misjoined, or to order the inclusion of the
party who should be joined. And that is not a defect which should cause the dismissal of the case
because the can always issue an order ordering the removal of a misjoined party or the inclusion of
joinder of a party who should be included.

Q: Does it mean to say therefore, that the plaintiff has the license to include anybody in an action?
Like for example, I have a case against somebody in the class, the trouble is in the meantime, I cannot
identify who among you who did the wrong to me. So I will file a case against all of you. Anyway later
on, I can dump you kung hindi ka talaga sabit. Now, is this allowed?
A: NO. That is not a license. What the law contemplates, according to the SC, the party was joined in
good faith believing that he was a defendant but actually it turned out to be wrong. So, you have no right
to sue anybody just like that. That is not an excuse for suing any party left and right. In the case of

REPUBLIC vs. SANDIGANBAYAN


173 SCRA 72 [1989]

HELD: Section 11 of Rule 3 “does not comprehend whimsical and irrational dropping or
adding of parties in a complaint. What it really contemplates is erroneous or mistaken non-
Property of LAKAS ATENISTA 82
1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

joinder and misjoinder of parties. No one is free to join anybody in a complaint in court only
to drop him unceremoniously later at the pleasure of the plaintiff. The rule presupposes that
the original inclusion had been made in the honest conviction that it was proper and the
subsequent dropping is requested because it turned out that such inclusion was a mistake.”

CLASS SUIT

SEC. 12. Class suit. When the subject matter of the controversy is one of
common or general interest to many persons so numerous that it is impracticable
to join all as parties, a number of them which the court finds to be sufficiently
numerous and representative as to fully protect the interests of all concerned
may sue or defend for the benefit of all. Any party in interest shall have the
right to intervene to protect his individual interest. (12a)

As a GENERAL RULE, if there are several real parties in interest, they shall be included in the case
whether indispensable or necessary. Example: There are 30 of us. The general rule is that all parties in
interest, indispensable or necessary shall be included.
EXCEPTION to the General Rule: Class Suit. Meaning, some of you will sue to represent the rest.
That is also known as the “doctrine of virtual representation.” The concept of a class suit was first
enunciated in the old case of

BORLAZA vs. POLISTICO


47 Phil. 345

FACTS: This case has something to do with raffle. A group of people decided to form an
association which they called “Turnuhang Polistico.” You become a member of this
association by contributing a certain sum of money. And then every Sunday after mass, half
of the collection will go to the treasurer of the association. The other half will be raffled off.
This has been going on for months and years. The time came when the funds of the association
became very big. Some of the members, in behalf of all the members, decided to file a case
against the officers to render an accounting of all the amounts. The real parties in interest
would be the members.

ISSUE: Is the suit filed by some members in behalf of some members proper?

HELD: YES, because if We will require all the members to appear, it will be quite
impossible. Therefore, some members must be made to sue but only in behalf of all the
members who are not around and it is impracticable to bring them all to the court. A number
of them may sue for the benefit of all.

Q: What are the CONDITIONS FOR A VALID CLASS SUIT ?


A: Under Section 12, the following are the conditions of a valid class suit:

1. The subject matter of the controversy is one of common or general interest to many persons
(such as the funds of the association in the case of POLISTICO); and
2. The parties are so numerous that it is impracticable to bring them all before the court.

In which case a number of them which the court finds to be sufficient and numerous and
representative as to fully protect the interests of all concerned may sue or defend for the benefit of all.
Example is a taxpayer’s suit – filed in behalf of all the taxpayers in the Philippines. And there is no specific
number of persons that is provided by law.

Now, we will go to some interesting cases on class suit decided by the Supreme Court:

SULO NG BAYAN vs. ARANETA, INC.


72 SCRA 347 [1976]

Property of LAKAS ATENISTA 83


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

FACTS: This concerns the big property of the Araneta’s in Quezon City. It has been the
subject matter of litigation for the past years – 3 or 4 decades. It is a big track of land in Quezon
City occupied by so many people who want to acquire it. They are questioning the title of the
Araneta’s
So, Sulo (torch) ng Bayan is the association of squatters. Since the properties of the Araneta
is very big, they subdivided it – kanya-kanyang lote. Then a case was filed by Sulo ng bayan
Association against Araneta to annul the title of the latter.

ISSUE #1: Whether or not the action was file in the name of the real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It violates Section 2 – “the action
must be prosecuted and defended in the name of the real parties in interest.” The members
occupying the land are the plaintiffs. The association is not the one occupying the lot. So, the
first question is, who should be the plaintiff? It should be the members.

ISSUE #2: Whether or not the action was properly pleaded as a class suit
HELD: NO. This is the more important reason why they cannot qualify as a class suit: In
a class suit, the subject matter is of common interest to all. Meaning, lahat tayo is interesado.
To illustrate:
You are Occupant No. 1, which lot do you occupy? “Here (a particular lot).” Meron ka
bang interest diyan? “Meron.” Do you have an interest in that (another lot) portion?
“Wala.” If that is so, then the subject matte is not of common interest. The interest of one
occupant is only on the lot he occupies. Meaning, “My neighbor does not have an interest on
the lot I occupied.”

What should be done is that all of them to sue together to cover the entire property, for each one has
a lot. So, in that case, Section 6 should be applied – permissive joinder of parties because there is a
common question of fact. This is more of permissive joinder of Parties rather than a class suit. That’s
why you can confuse Section 6 with Section 12. But the permissive joinder of parties kailangan, lahat
kayoi nandiyan. Hindi puwede na I will represent you. Kanya-kanya yan but they can join together.
Unlike in a class suit, the subject matter is of interest to everybody and we cannot all be joined because
we are so numerous.

BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO LINES


May 19, 1989

RE: Doña Paz Tragedy – iyong lumubog na barko owned by Sulpicio Lines.
FACTS: There we so many relatives who filed a case against Sulpicio Lines and there was
an attempt to file a class suit in behalf of everyone who were drowned including those who
were not identified.

HELD: That cannot be. The survivors have no interest in the death of other passengers.
The interest in this case is individual. What would have been proper is permissive joinder of
parties because of common question of tact or law, but not class suit.

OPOSA vs. FACTORAN


224 SCRA 12 [1993]

FACTS: Oposa et al were all minors. Some were small boys duly represented by their
parents. They filed a case against then DENR Secretary Factoran. The prayer in the case is to
order the DENR to cancel all existing Timber License Agreements (TLA’s), to cease and desist
from proceeding, accepting, processing, renewing all accruing new TLA’s. So, in effect, it
prays for a total log ban in the country to preserve the remaining forest all over the
Philippines.

Property of LAKAS ATENISTA 84


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

These young boys sue with their parents. They are suing in their behalf, in behalf of the
other citizens who are of their age because they stand to suffer if the environment will be
deteriorated. They say that they are entitled to the full benefit, use and enjoyment of the
natural resources of our country’s rich tropical rainforests. They say, the case was tiled for
themselves and others for the preservation of our rainforest and we are so numerous that it
is impracticable to bring all plaintiffs to court. They say that they represent their generations
and generations yet unborn.

HELD: The civil case is indeed a class suit. The case however has a special and novel
element. The personality of the minors to sue for the succeeding generations is based on the
concept of inter-generational responsibility insofar as a balanced and healthful ecology is
concerned. Every generation has a responsibility to preserve the ecology. The minors’ right to
a sound environment constitute at the same time the performance of the obligation to ensure
the protection of the rights or the generations to come.

Q: In case of doubt, should a class suit be allowed?


A: NO. When the issue is not so clear, a class suit should not be allowed b e cause class suit is an
exception to the general rule that all parties should be included.

CADALIN vs. POEA ADMINISTRATOR


238 SCRA 721 [1995]

HELD: While it is true that class suit is allowed, it should be allowed with caution because
the fact that you represent others is only a fiction of law. For all you know, those others may
not want to be represented. So okey lang kung manalo ang kaso. Eh kung matalo ang kaso?
All others start blaming you. That is why the court is extra-cautious in allowing class suits
because they are the exceptions to the condition sine qua non requiring joinder of all
indispensable parties.
In an improperly instituted class suit, there would be no problem it the decision secured
is favorable to the plaintiffs. The problem arises where the decision is adverse to them. In
which case, the parties who are impleaded through their self-appointed representatives
would surely plead denial of due process.

Q: Distinguish a representative suit from a class suit.


A: In the case of

LIANA’S SUPERMARKET vs. NLRC


257 SCRA 186 [May 31, 1996]

FACTS: A labor union filed a case against the employer in behalf of hundreds of
employees. Is this a representative suit or a class suit?

HELD: “What makes the situation a proper case for a class suit is the circumstance that
there is only one right or cause of action pertaining or belonging in common to many persons,
not separately or severally to distinct individuals. The object of the suit is to obtain relief for
or against numerous persons as a group or as an integral entity, and not as separate, distinct
individuals whose rights or liabilities are separate from and independent of those affecting
the others.”
In a representative suit, there are different causes of action pertaining different persons.
“In the present case, there are multiple rights or causes of action pertaining separately to
several, distinct employees who are members of respondent Union. Therefore, the applicable
rule is that provided in Rule 3 on Representative Parties. Nonetheless, as provided for in the
Labor Code, a legitimate labor organization has the right to sue and be sued in its registered
name. This authorizes a union to file a representative suit for the benefit of its members in the
interest of avoiding an otherwise cumbersome procedure of joining all union members in the

Property of LAKAS ATENISTA 85


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

complaint, even if they number by the hundreds.” For convenience, the Labor Code allows a
union to file a representative suit.

It is important to note the following:


1. CLASS SUIT
2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT – only peculiar to the corporation law where the minority files a suit in
behalf of the entire corporation because intra-corporate remedy is useless.

ALTERNATIVE DEFENDANTS

Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who
of several persons he is entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to relief against one may be
inconsistent with a right of relief against the other. (13a)

Alternative defendants is also related to alternative causes of action – even if your right against one
is inconsistent with your right to relief against the other party, you may file a suit against the alternative
defendant. (c.f. Rule 2, Section 5 – Joinder of Causes of Action)

You filed a case against the operators of two vehicles. In effect, your cause of action is either culpa
aquiliana or culpa contractual. Is that not inconsistent? The law says, “although a right to relief against
one may be inconsistent with a right against the other.” In other words, even if the two causes of action
is inconsistent with each other, it is allowed.

As a matter of fact, this is the best policy because the plaintiff is a sure winner. The only question is,
who among the two will be held liable.

Although the law is silent, if there is such a thing as “alternative defendants,” there is no reason why
the grounds for “alternative plaintiffs” should not be allowed.

Q: (Taken from Remedial Law Reviewer by Nuevas) May plaintiff join in the alternative?
A: YES, plaintiffs may join in the alternative under the same principle as alternative joinder of
defendants. When several persons are uncertain as to who among them is entitled to relief from a certain
defendant, they may join as plaintiffs in the alternative. This is also sanctioned by the rule on permissive
joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the principal and his agent may join as
plaintiffs in the alternative against a defendant. If the agency is proved, the relief is awarded to the
principal. If not, award is then made to the agent.

Sec. 14. Unknown identity or name of defendant. Whenever the identity or name
of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or
by such other designation as the case may require; when his identity or true name
is discovered, the pleading must be amended accord. (14)

Q: Can you sue somebody who is unknown?


A: YES, under Section 14.

BAR PROBLEM: While Leyva “The Rapper” was walking on the street. He was bumped by a car, say
a Toyota Altis, 2001 model, color blue. Now, so far, he could not determine who is the owner. If you are
the lawyer of the Leyva, how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in my
complaint, “Leyva ‘the rapper’, plaintiff, vs. the registered owner of Honda motor vehicle with plate

Property of LAKAS ATENISTA 86


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

number so and so.” And later if you discover the true identity of the owner, we can amend the complaint
to place the name of the defendant.

Section 14 is similar with Rule 110 in Criminal Procedure – a case may be filed against an unknown
accused.

RULE 110, SEC. 7. Name of the accused. – The complaint or information must
state the name and surname of the accused or any appellation or nickname by which
he has been or is known. If his name cannot be ascertained, he must be described
under a fictitious name with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in
some other manner to the court, such true name shall be inserted in the complaint
or information and record. (7a)

ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT

Sec. 15. Entity without juridical personality as defendant. When two or more
persons not organized as an entity with juridical personality enter into a
transaction, they may be sued under the name by which they are generally or
commonly known.
In the answer of such defendant, the names and addresses of the persons
composing said entity must all be revealed.

Rule 1, Section 1 provides that only natural of juridical persons may be sued.

Entity without juridical personality as defendant. Under the old law, this was known as suing two or
more persons involved in a business under a common name. When two or more persons transact in a
business under a common name, they may be sued under their common name.

Q: Who are really the defendants here? A: The persons involved.

Now, it is worded in this manner: “When two or more persons not organized as an entity with
juridical personality,” instead of a ‘common name.’ You cannot sue the entity because it has no juridical
personality. But you do not also know the members of that entity, so the law allows you to file a case
against the entity.

Under the second paragraph of Section 15, when the defendants file an answer, they must file under
their names as they are really the real parties in interest. When the lawyer answers the complaint, he is
duty-bound to provide the names of all the defendants.

Q: How do you summon this kind of defendant?


A: Rule 14, Section 8:

RULE 14, Sec. 8. Service upon entity without juridical personality. When
persons associated in an entity without juridical personality are sued under the
name by which they are generally or commonly known, service may be effected upon
all the defendants by serving upon any one of them, or upon the person in charge
of the office or place of business maintained in such name. But such service shall
not bind individually any person whose connection with the entity has, upon due
notice, been severed before the action was brought. (9a)

Correlate this with Rule 36, Section 6:

Sec. 6. Judgment against entity without juridical personality. When judgment


is rendered against two or more persons sued as an entity without juridical
personality, the judgment shall set out their individual or proper names, if
known. (6a)

GENERAL RULE: actions must be filed against real parties in interest.


EXCEPTIONS: (When may an action be filed without naming all the parties in involved?)

Property of LAKAS ATENISTA 87


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

1. Class suit (Section 12, Rule 3);


2. Entity without juridical personality (Section 15, Rule 3);
3. Any co-owners may bring an action for ejectment (Article 487, New Civil Code)

EFFECT OF DEATH OF A PARTY

Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action
dies, and the claim is not thereby extinguished, it shall be the duty of his
counsel to inform the court within thirty (30) days after such death of the fact
thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall be a ground
for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor or administrator and the court
may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives
to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or
if the one so named shall fail to appear within the specified period, the court
may order the opposing party, within a specified time, to procure the appointment
of an executor or administrator for the estate of the deceased and the latter
shall immediately appear for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing party, may be recovered
as costs. (16, 17a)

First of all, there are cases when a party to a pending action dies and the claim is not thereby
extinguished (this is what they called an action which survives as we will explain later) and there are
certain actions where if a party dies, the claim is automatically extinguished. Meaning, the death of a
party causes death of the action. But these are very few. Majority of cases when the party dies, the case
or the cause of action continues.

It is the duty of the lawyer of the deceased to inform the court within 30 days after the death of the
party thereof. He must inform the court and give the name and address of his legal representative/s
(e.g. administrator of executor of the estate)

Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically
terminated by the death of the client because the lawyer-client relationship is personal. But procedurally,
you must tell the court and you must give the name of the legal representative. The latter may re-hire the
lawyer but under a new contract.

The purpose there is for substitution so that the legal representative will be ordered substituted. And
there is a new provision under the new rules. That is, failure of the counsel to comply with his duty shall
be a ground for disciplinary action. That is not found in the prior rule. So, the lawyer can be subjected to
disciplinary action.

So the provision continues, “the heirs of the deceased may be allowed to be substituted for the
deceased without requiring the appointment of an executor or administrator. And the court may appoint
a guardian ad litem for the minor heirs.

So, other than the legal representative, before anything else, the representative refers to the executor
or administrator, and the other alternative will be the heirs, such as the surviving children, wife or
spouse.

Although there was a case decided by the SC way back in 1986 in the case of

LAWAS vs. COURT OF APPEALS


146 SCRA 173

HELD: “The priority of substitution would be the executor or administrator not the heirs.
The heirs would only be allowed to be substituted if there is an (1) unreasonable delay in the
Property of LAKAS ATENISTA 88
1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

appointment of administrator or executor, or (2) when the heirs resort to extrajudicial


partition. But outside of those two reason, the law always gives priority to the administrator
or executor.”

Under the rule, priority is given co the legal representative of the deceased. That is, the executor or
the administrator of his estate. Many courts do not enforce it strictly. Normally, patay na, “O! Ito ang
heirs o!” “OK! Substitute!” Actually, that is wrong based on LAWAS case. The priority is given to the
administrator or executor. It is only when there is unreasonable delay in the appointment, or when the
heirs resort to extrajudicial partition because there is no more administrator or executor in extrajudicial
settlement.
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]

FACTS: This is an ejectment. case. The defendant died while the case is going on. What is
the procedure? There should be substitution. But there was no substitution in the case for ten
years, until it was decided. The court was not informed of the death of the defendant. Until
finally, there was a decision.

ISSUE: When there is failure to effectuate the substitution of heirs before the rendition of
judgment, is the judgment jurisdictionally detective? Because here, the case continued eh, in
which somebody is already dead.

HELD: NO, “the judgment is valid where the heirs themselves appeared before the trial
court and participated in the proceedings. Therein, they presented evidence in defense of the
deceased defendant. It is undeniably evident that the heirs themselves sought their day in
court and exercised their right to due process.”

In other words, when there was a defect the heirs however cannot used that because they themselves
appeared and continued the case. So, in effect, there was estoppel.

EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS

Now, one of the radical changes again introduced by the new rules is the effect of the death of the
defendant in a money claim – action to collect a sum of money.

Sec. 20. Action on contractual money claims. When the action is for recovery
of money arising from contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was pending at the time
of such death, it shall not be dismissed but shall instead be allowed to continue
until entry of final judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person. (21a)

The best example here is an action to collect an unpaid loan. And while the case is pending the
defendant died. What will happen to the case? The law says: If the defendant dies before the entry of the
final judgment in the court at the time of death, it shall not be dismissed but it shall instead be allowed
to continue until entry of final judgment.

Under the OLD RULES, the case shall be dismissed. So, the civil case is not suspended but it will be
dismissed. Eh, paano 'yung utang? Now, you file a case against the estate of the deceased under the Rules
on Special Proceedings. But definitely the civil case hindi na matuloy . . . patay na iyon when the
defendant dies.

Now, under the NEW RULE, the case will not be dismissed but rather, the case will now continue
until entry of final judgment. That is a radical change of procedure! So case will not be dismissed. It shall
be allowed to continue until entry of final judgement. Meaning, until it becomes final and executory.

Property of LAKAS ATENISTA 89


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Q: But of course, if the judgment is favorable to you (the plaintiff), can you move to execute? Can you
move to execute the decision against or buy the property of the defendant?
A: NO, because the law provides, “xxx a favorable judgment obtained by the plaintiff therein shall
be enforced in the manner specially provided in these Rules for prosecuting claims against the estate of
a deceased person.”

Q: And what is that procedure?


A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but there
will be no execution.

[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]

Q: We are talking of death of a party in a pending civil action. While there is a case and a party dies,
what will happen to the case?
A: I will distinguish – Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT SURVIVE
or an ACTION WHICH SURVIVES?

1.) ACTION WHICH DOES NOT SURVIVE


An action which does not survive is an action which is abated upon the death of a party. The case
cannot go on once a party dies. And normally, that refers to actions which are purely personal in
character like an action for annulment of marriages, an action for declaration of the nullity of
marriage or, an action for legal separation, or an action for support. These are the cases arising from
the Family Code.

Example: The husband files a case against the wife for annulment of marriage or legal
separation. One of them dies. Wala nang substitution, TAPOS NA! When one of the
parties dies, the marriage is dissolved. There is nothing to annul because the marriage is
already dissolved. So, these are the actions which are purely personal .

Q: So, what is the effect of the death of the party in actions which does not survived?
A: The case is dismissed!

However, these cases are very few. Majority of the cases are damage suit, recovery of
possession, recovery of land, recovery of unpaid loans, etc. So, these are what you call actions
which survive. Meaning , if a party dies, you cannot say that the case is terminated upon the death
of the party. So, ano ang mga kaso na iyan?

2.) ACTIONS WHICH SURVIVE – Is it a contractual money claim or non-contractual claim? If it is a


contractual claim, who died – is it the plaintiff or is it the defendant? If the defendant is the one
who died, when did he die?

2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:

2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal representatives
will proceed. So, there is substitution.

2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before entry of
final judgment or after entry? This is where Section 20 will come in.

2a2a.) If the defendant died before entry of final judgment, you apply Section 20 of Rule
3. Meaning, the case shall not be dismissed but shall be allowed to continue until entry of final
judgment. And the favorable judgment obtained by the plaintiff therein shall be enforced in
the manner especially provided in these Rules for prosecuting claims against the estate of a
deceased person, and that is Section 5 of Rule 86.

2a2b.) If the defendant died after the entry of the final judgment but before execution (after
the judgment became final but before there could be levy or execution) you cannot move to
Property of LAKAS ATENISTA 90
1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

execute. Again, you apply Section 5 of Rule 86 which is the governing rule – you file your
judgment as a claim against the estate of the deceased defendant. [Section 5, Rule 86 - Please
refer to your codals.] The purpose there is, so that the creditor will share with the other
creditors pro-rata in the distribution of the estate.

2a2c) If the defendant died after levy or execution but before the auction sale – meaning,
the property was already levied by the sheriff bago pa namatay – we will now apply Section
7[c] of Rule 39:

Rule 39, Sec. 7. Execution in case of death of party. In case of the death
of party, execution may issue or be enforced in the following manner:
x x x x x x
(c) In case of the death of the judgment obligor, after execution is
actually levied upon any of his property, the same may be sold for the
satisfaction of the judgment obligation, and the officer making the sale shall
account to the corresponding executor or administrator for any surplus in his
hands. (7a)

Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if there is an
excess, the excess shall be delivered to the administrator of executor.

2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS:


EXAMPLE: an action for recovery of property, real or personal like replevin,
forcible entry, unlawful detainer, action publiciana, action reinvidicatoria, or action
for damages, (damages that is not the same for transaction of money because damages
arising from culpa aquiliana is one not arising from contract.)

If a party dies in an action which survives which is a non-contractual money claim,


obviously, there is substitution of parties. So, what are these non-contractual money
claims which survive? These are those mentioned in Section 7 of Rule 86 and Section 1 of
Rule 87. That is in the study of Special Proceedings on settlement of the estate of a
deceased person.

So, that is the outline in the light of the amendments of the Rules of Court. [PLEASE REFER TO THE
OUTLINE HEREIN ATTACHED.]

Note: What Section 20 says is that: before the case can be decided and the defendant dies (in actions
involving money claims) the case shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. BUT CONTINUE AGAINST WHOM? Against the deceased? Now, to my mind,
you correlate this with Section 16 --- there should still be substitution.

But assuming, there was no substitution and the heirs fought in the case; there is waiver because the
defect is procedural. Just like what happened in the case of VDA. DE SALAZAR. Actually, what Section
20 emphasized is that, the action shall not be dismissed but shall continue – to emphasize that it is now
different compared with the prior RULE. But obviously, there will always be a substitution

Sec. 17. Death or separation of a party who is a public officer. When a public
officer is a party in an action in his official capacity and during its pendency
dies, resigns, or otherwise ceases to hold office, the action may be continued
and maintained by or against his successor if, within thirty (30) days after the
successor takes office or such time as may be granted by the court, it is
satisfactorily shown to the court by any party that there is a substantial need
for continuing or maintaining it and that the successor adopts or continues or
threatens to adopt or continue the action of his predecessor. Before a
substitution is made, the party or officer to be affected, unless expressly
assenting thereto, shall be given reasonable notice of the application therefor
and accorded an opportunity to be heard. (18a)

This applies only when the public officer is party to an action in his official capacity. If he (1) dies;
(2) resigns; or (3) cease to hold office, there will be a succession.

Property of LAKAS ATENISTA 91


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

Q: What will happen to the case?


A: The following:

1.) If the successor intends to continue with the policy.


EXAMPLE: Mayor Pascua threatened to demolished the building of Mr. Nuere as a
hazard. If Mayor Pascua dies, Vice-Mayor Angeles becomes the mayor. If Vice-Mayor
Angeles who is now the mayor says that he will continue with the demolition, he will be
substituted and he is given 30 days to comment.

2.) If the successor does not adopt the policy, the case will be dismissed.

Sec. 18. Incompetency or incapacity. If a party becomes incompetent or


incapacitated, the court, upon motion with notice, may allow the action to be
continued by or against the incompetent or incapacitated person assisted by his
legal guardian or guardian ad litem. (19a)

EXAMPLE: Francis files a case against Kenneth. While the case is pending, Kenneth becomes insane.
(tsk! tsk!) The case will continue but Kenneth has to be assisted by his guardian ad litem Thad.

This is related to Rule 3, Section 3 on representative party but in Section 3, Kenneth was already
insane before the case is filed. [inborn na yan eh!]

Sec. 19. Transfer of interest. In case of any transfer of interest, the action
may be continued by or against the original party, unless the court upon motion
directs the person to whom the interest is transferred to be substituted in the
action or joined with the original party. (20)

EXAMPLE: Rudolpho files a case against Leweh to recover a piece of land. While the case is pending,
Leweh sold the land to Erec. Erec now assumes the risk and takes the property subject to the outcome of
the case.
Q: Can the case continue against Leweh?
A: YES.
1.) If Leweh loses and cannot pay, Erec is subsidiary liable;
2.) Leweh can be removed and Erec will be substituted; or
3.) Leweh can stay and Erec will be added.

In all 3 cases, Erec will be bound by the judgment.

Sec. 21. Indigent party. A party may be authorized to litigate his action,
claim or defense as an indigent if the court, upon an ex parte application and
hearing, is satisfied that the party is one who has no money or property sufficient
and available for food, shelter and basic necessities for himself and his family.
Such authority shall include an exemption from payment of docket and other
lawful fees, and of transcripts of stenographic notes which the court may order
to be furnished him. The amount of the docket and other lawful fees which the
indigent was exempted from paying shall be a lien on any judgment rendered in the
case favorable to the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time before
judgment is rendered by the trial court. If the court should determine after
hearing that the party declared as an indigent is in fact a person with sufficient
income or property, the proper docket and other lawful fees shall be assessed and
collected by the clerk of court. If payment is not made within the time fixed by
the court, execution shall issue for the payment thereof, without prejudice to
such other sanctions as the court may impose. (22a)

In criminal cases, the court assigns a counsel de officio. Under the Constitution on Bill of Rights, no
person shall be denied access to courts by reason of poverty.

In civil cases, a plaintiff need not pay docket fee if he is an indigent if he files an application (ex-party
application) to allow him to litigate as an indigent litigant. But if the indigent wins, he has to pay the fees
– file now, pay later) – the amount shall be a lien on any favorable judgment.

Property of LAKAS ATENISTA 92


1997 Rules on Civil Procedure Rule 03
2001 Edition < DRAFT COPY; Please check for errors > Parties to Civil Actions

The third paragraph is new. The other party may contest the claim of the indigent if he is really an
indigent or not.

Sec. 22. Notice to the Solicitor General. In any action involving the validity
of any treaty, law, ordinance, executive order, presidential decree, rules or
regulations, the court, in its discretion, may require the appearance of the
Solicitor General who may be heard in person or through a representative duly
designated by him. (23a)

EXAMPLE: Inday (the love-is-blind club president) files a case against Kenneth Bruce Lim for
declaration of nullity on the ground of psychological incapacity. Kenneth alleges that Article 38 of the
Family Code is unconstitutional. So the court will rule on the validity of the law in which case, the
Solicitor General has to be involved in the case to defend the validity of the law.

REASON: The Solicitor General is the legal counsel of the Republic of the Philippines whose duty is
to defend all the official acts of the Government.


published by

LAKAS ATENISTA 1997 – 1998: FOURTH YEAR: Anna Vanessa Angeles • Glenda Buhion •
Joseph Martin Castillo • Aaron Philip Cruz • Pearly Joan Jayagan • Anderson Lo •
Yogie Martirizar • Frecelyn Mejia • Dorothy Montejo • Rowena Panales • Regina Sison •
Ruby Teleron • Marilou Timbol • Maceste Uy • Perla Vicencio • Liberty Wong • Jude Zamora •
Special Thanks to: Marissa Corrales and July Romena

SECOND YEAR: Jonalyn Adiong • Emily Aliño • Karen Allones • Joseph Apao •
Melody Penelope Batu • Gemma Betonio • Rocky Cabarroguis • Charina Cabrera •
Marlon Cascuejo • Mike Castaños • Karen de Leon • Cherry Frondozo • Jude Fuentes • Maila Ilao
• Ilai Llena • Rocky Malaki • Jenny Namoc • Ines Papaya • Jennifer Ramos • Paisal Tanjili

LAKAS ATENISTA 2001–2002: REVISION COMMITTEE: Melissa Suarez • Jessamyn Agustin •


Judee Uy • Janice Joanne Torres • Genie Salvania • Pches Fernandez • Riezl Locsin •
Kenneth Lim • Charles Concon • Roy Acelar • Francis Ampig • Karen Cacabelos •
Maying Dadula • Hannah Examen • Thea Guadalope • Myra Montecalvo • Paul Ongkingco •
Michael Pito • Rod Quiachon • Maya Quitain • Rina Sacdalan • Lyle Santos •Joshua Tan •
Thaddeus Tuburan • John Vera Cruz • Mortmort

Property of LAKAS ATENISTA 93