G.R. No.
133000           October 2, 2001
PATRICIA NATCHER, petitioner, 
vs.
HON. COURT OFAPPEALS AND THE HEIR OF GRACIANO DEL ROSARIO – LETICIA DEL ROSARIO, EMILIA DEL RESORIO – MANANGAN,
ROSALINDA FUENTES LLANA, RODOLFO FUENTES, ALBERTO FUENTES, EVELYN DEL ROSARIO, and EDUARDO DEL ROSARIO, respondent..
BUENA, J.:
May a Regional Trial Court, acting as a court of general jurisdiction in an action for reconveyance annulment of title with damages,
adjudicate matters relating to the settlement of the estate of a deceased person particularly on questions as to advancement of property
made by the decedent to any of the heirs?
Sought to be reversed in this petition for review on certiorari under Rule 45 is the decision1 of public respondent Court of Appeals, the
decretal portion of which declares:
"Wherefore in view of the foregoing considerations, judgment appealed from is reversed and set aside and another one
entered annulling the Deed of Sale executed by Graciano Del Rosario in favor of defendant-appellee Patricia Natcher, and
ordering the Register of Deeds to Cancel TCT No. 186059 and reinstate TCT No. 107443 without prejudice to the filing of a
special proceeding for the settlement of the estate of Graciano Del Rosario in a proper court. No costs.
"So ordered."
Spouses Graciano del Rosario and Graciana Esguerra were registered owners of a parcel of land with an area of 9,322 square meters located
in Manila and covered by Transfer Certificate of Title No. 11889. Upon the death of Graciana in 1951, Graciano, together with his six
children, namely: Bayani, Ricardo, Rafael, Leticia, Emiliana and Nieves, entered into an extrajudicial settlement of Graciana's estate on 09
February 1954 adjudicating and dividing among themselves the real property subject of TCT No. 11889. Under the agreement, Graciano
received 8/14 share while each of the six children received 1/14 share of the said property. Accordingly, TCT No. 11889 was cancelled,
and in lieu thereof, TCT No. 35980 was issued in the name of Graciano and the Six children.1âwphi1.nêt
Further, on 09 February 1954, said heirs executed and forged an "Agreement of Consolidation-Subdivision of Real Property with Waiver of
Rights" where they subdivided among themselves the parcel of land covered by TCT No. 35980 into several lots. Graciano then donated to
his children, share and share alike, a portion of his interest in the land amounting to 4,849.38 square meters leaving only 447.60 square
meters registered under Graciano's name, as covered by TCT No. 35988. Subsequently, the land subject of TCT No. 35988 was further
subdivided into two separate lots where the first lot with a land area of 80.90 square meter was registered under TCT No. 107442 and the
second lot with a land area of 396.70 square meters was registered under TCT No. 107443. Eventually, Graciano sold the first lot 2 to a third
person but retained ownership over the second lot. 3
On 20 March 1980, Graciano married herein petitioner Patricia Natcher. During their marriage, Graciano sold the land covered by TCT No.
107443 to his wife Patricia as a result of which TCT No. 186059 4 was issued in the latter's name. On 07 October 1985,Graciano died leaving
his second wife Patricia and his six children by his first marriage, as heirs.
In a complaint5 filed in Civil Case No. 71075 before the Regional Trial Court of Manila, Branch 55, herein private respondents alleged that
upon Graciano's death, petitioner Natcher, through the employment of fraud, misrepresentation and forgery, acquired TCT No. 107443, by
making it appear that Graciano executed a Deed of Sale dated 25 June 1987 6 in favor herein petitioner resulting in the cancellation of TCT
No. 107443 and the issuance of TCT no. 186059 in the name of Patricia Natcher. Similarly, herein private respondents alleged in said
complaint that as a consequence of such fraudulent sale, their legitimes have been impaired.
In her answer7 dated 19 August 1994, herein petitioner Natcher averred that she was legally married to Graciano in 20 March 1980 and thus,
under the law, she was likewise considered a compulsory heir of the latter. Petitioner further alleged that during Graciano's lifetime,
Graciano already distributed, in advance, properties to his children, hence, herein private respondents may not anymore claim against
Graciano's estate or against herein petitioner's property.
After trial, the Regional Trial Court of Manila, Branch 55, rendered a decision dated 26 January 1996 holding: 8
"1) The deed of sale executed by the late Graciano del Rosario in favor of Patricia Natcher is prohibited by law and thus a
complete nullity. There being no evidence that a separation of property was agreed upon in the marriage settlements or that
there has been decreed a judicial separation of property between them, the spouses are prohibited from entering (into) a
contract of sale;
"2) The deed as sale cannot be likewise regarded as a valid donation as it was equally prohibited by law under Article 133 of
the New Civil Code;
"3) Although the deed of sale cannot be regarded as such or as a donation, it may however be regarded as an extension of
advance inheritance of Patricia Natcher being a compulsory heir of the deceased."
On appeal, the Court of Appeals reversed and set aside the lower court's decision ratiocinating, inter alia:
"It is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. The court a quo,
trying an ordinary action for reconveyance / annulment of title, went beyond its jurisdiction when it performed the acts
proper only in a special proceeding for the settlement of estate of a deceased person. XXX
"X X X Thus the court a quo erred in regarding the subject property as advance inheritance. What the court should have done
was merely to rule on the validity of (the) sale and leave the issue on advancement to be resolved in a separate proceeding
instituted for that purpose. XXX"
Aggrieved, herein petitioner seeks refuge under our protective mantle through the expediency of Rule 45 of the Rules of Court and assails
the appellate court's decision "for being contrary to law and the facts of the case."
We concur with the Court of Appeals and find no merit in the instant petition.
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in this wise:
"XXX a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong.
"A civil action may either be ordinary or special. Both are government by the rules for ordinary civil actions, subject to specific
rules prescribed for a special civil action.
"XXX
"c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact."
As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An action is a formal
demand of one's right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies
according to definite established rules. The term "special proceeding" may be defined as an application or proceeding to establish the status
or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so
provides. In special proceedings, the remedy is granted generally upon an application or motion." 9
Citing American Jurisprudence, a noted authority in Remedial Law expounds further:
"It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted according
to the ordinary rules and provisions relating to actions at law or suits in equity, and that special proceedings include those
proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special mode as in the
case of proceedings commenced without summons and prosecuted without regular pleadings, which are characteristics of
ordinary actions. XXX A special proceeding must therefore be in the nature of a distinct and independent proceeding for
particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice." 10
Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to
settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special
proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate
court in the exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to
any heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon
shall be binding on the person raising the questions and on the heir.
While it may be true that the Rules used the word "may", it is nevertheless clear that the same provision 11contemplates a probate court
when it speaks of the "court having jurisdiction of the estate proceedings".
Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and
resolve the issue of advancement of the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 471075 for
reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under the
present circumstances, the RTC of Manila, Branch 55 was not properly constituted as a probate court so as to validly pass upon the question
of advancement made by the decedent Graciano Del Rosario to his wife, herein petitioner Natcher.
At this point, the appellate court's disquisition is elucidating:
"Before a court can make a partition and distribution of the estate of a deceased, it must first settle the estate in a special
proceeding instituted for the purpose. In the case at hand, the court a quo determined the respective legitimes of the
plaintiffs-appellants and assigned the subject property owned by the estate of the deceased to defendant-appellee without
observing the proper proceedings provided (for) by the Rules of Court. From the aforecited discussions, it is clear that trial
courts trying an ordinary action cannot resolve to perform acts pertaining to a special proceeding because it is subject to
specific prescribed rules. Thus, the court a quo erred in regarding the subject property as an advance inheritance." 12
In resolving the case at bench, this Court is not unaware of our pronouncement in Coca vs. Borromeo13 and Mendoza vs. Teh14 that whether
a particular matter should be resolved by the Regional Trial Court (then Court of First Instance) in the exercise of its general jurisdiction or
its limited probate jurisdiction is not a jurisdictional issue but a mere question of procedure. In essence, it is procedural question involving a
mode of practice "which may be waived".15
Notwithstanding, we do not see any waiver on the part of herein private respondents inasmuch as the six children of the decedent even
assailed the authority of the trail court, acting in its general jurisdiction, to rule on this specific issue of advancement made by the decedent
to petitioner.
Analogously, in a train of decisions, this Court has consistently enunciated the long standing principle that although generally, a probate
court may not decide a question of title or ownership, yet if the interested parties are all heirs, or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the probate court and the rights of third parties are not impaired,
then the probate court is competent to decide the question of ownership. 16
Similarly in Mendoza vs. Teh, we had occasion to hold:
"In the present suit, no settlement of estate is involved, but merely an allegation seeking appointment as estate
administratrix which does not necessarily involve settlement of estate that would have invited the exercise of the limited
jurisdiction of a probate court. 17 (emphasis supplied)
Of equal importance is that before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that
certain steps be taken first.18 The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the
value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the
partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only thereafter can it be ascertained
whether or not a donation had prejudiced the legitimes. 19
A perusal of the records, specifically the antecedents and proceedings in the present case, reveals that the trial court failed to observe
established rules of procedure governing the settlement of the estate of Graciano Del Rosario. This Court sees no cogent reason to sanction
the non-observance of these well-entrenched rules and hereby holds that under the prevailing circumstances, a probate court, in the
exercise of its limited jurisdiction, is indeed the best forum to ventilate and adjudge the issue of advancement as well as other related
matters involving the settlement of Graciano Del Rosario's estate.1âwphi1.nêt
WHEREFORE, premises considered, the assailed decision of the Court of Appeals is hereby AFFIRMED and the instant petition
is DISMISSED for lack of merit.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing, De Leon, Jr., Davide, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
 
G.R. No. 109373 March 20, 1995
PACIFIC BANKING CORPORATION EMPLOYEES ORGANIZATION, PAULA S. PAUG, and its officers and members, petitioners, 
vs.
THE HONORABLE COURT OF APPEALS and VITALIANO N. NAÑAGAS II, as Liquidator of Pacific Banking Corporation, respondents.
G.R. No. 112991 March 20, 1995
THE PRESIDENT OF THE PHILIPPINE DEPOSIT INSURANCE CORPORATION, as Liquidator of the Pacific Banking Corporation , petitioner, 
vs.
COURT OF APPEALS, HON. JUDGE REGINO T. VERIDIANO II, DEPUTY SHERIFF RAMON ENRIQUEZ and ANG ENG JOO, ANG KEONG LAN and
E.J ANG INT'L. LTD., represented by their Attorney-in-fact, GONZALO C. SY, respondents.
MENDOZA, J.:
These cases have been consolidated because the principal question involved is the same: whether a petition for liquidation under §29 of
Rep. Act No. 265, otherwise known as the Central Bank Act, is a special proceeding or an ordinary civil action. The Fifth and the Fourteenth
Divisions of the Court of Appeals reached opposite results on this question and consequently applied different periods for appealing.
The facts are as follows:
I.
Proceedings in the CB and the RTC
On July 5, 1985, the Pacific Banking Corporation (PaBC) was placed under receivership by the Central Bank of the Philippines pursuant to
Resolution No. 699 of its Monetary Board. A few months later, it was placed under liquidation 1 and a Liquidator was appointed.2
On April 7, 1986, the Central Bank filed with the Regional Trial Court of Manila Branch 31, a petition entitled "Petition for Assistance in the
Liquidation of Pacific Banking Corporation." 3 The petition was approved, after which creditors filed their claims with the court.
On May 17, 1991, a new Liquidator, Vitaliano N. Nañagas, 4 President of the Philippine Deposit Insurance Corporation (PDIC), was appointed
by the Central Bank.
On March 13, 1989 the Pacific Banking Corporation Employees Organization (Union for short), petitioner in G.R. No. 109373, filed a
complaint-in-intervention seeking payment of holiday pay, 13th month pay differential, salary increase differential, Christmas bonus, and
cash equivalent of Sick Leave Benefit due its members as employees of PaBC. In its order dated September 13, 1991, the trial court ordered
payment of the principal claims of the Union. 5
The Liquidator received a copy of the order on September 16, 1991. On October 16, 1991, he filed a Motion for Reconsideration and
Clarification of the order. In his order of December 6, 1991, the judge modified his September 13, 1991 6 but in effect denied the Liquidator's
motion for reconsideration. This order was received by the Liquidator on December 9, 1991. The following day, December 10, 1991, he filed
a Notice of Appeal and a Motion for Additional Time to Submit Record on Appeal. On December 23, 1991, another Notice of Appeal was
filed by the Office of the Solicitor General in behalf of Nañagas.
In his order of February 10, 1992, respondent judge disallowed the Liquidator's Notice of Appeal on the ground that it was late, i.e., more 5. The Court of Appeals erred seriously in declaring that the second notice of appeal filed on December 23,
than 15 days after receipt of the decision. The judge declared his September 13, 1991 order and subsequent orders to be final and 1991 by the Solicitor General is a superfluity.
executory and denied reconsideration. On March 27, 1992, he granted the Union's Motion for issuance of a writ of Execution.

On the other hand, in G.R. No. 112991 the Liquidator contends that:
Ang Keong Lan and E.J. Ang Int'l., private respondents in G.R. No. 112991, likewise filed claims for the payment of investment in the PaBC
allegedly in the form of shares of stocks amounting to US$2,531,632.18. The shares of stocks, consisting of 154,462 common shares,
constituted 11% of the total subscribed capital stock of the PaBC. They alleged that their claim constituted foreign exchange capital 1. The Petition for Assistance in the Liquidation of the Pacific Banking Corporation s a Special Proceeding case
investment entitled to preference in payment under the Foreign Investments Law. and/or one which allows multiple appeals, in which case the period of appeal is 30 days and not 15 days from
receipt of the order/judgment appealed from.

In his order dated September 11, 1992, respondent judge of the RTC directed the Liquidator to pay private respondents the total amount of
their claim as preferred creditors. 7 2. Private respondents are not creditors of PaBC but are plain stockholders whose right to receive payment as
such would accrue only after all the creditors of the insolvent bank have been paid.

The Liquidator received the order on September 16, 1992. On September 30, 1992 he moved for reconsideration, but his motion was denied
by the court on October 2, 1992. He received the order denying his Motion for Reconsideration on October 5, 1992. On October 14, 1992 he 3. The claim of private respondents in the amount of US$22,531,632.18 is not in the nature of foreign
filed a Notice of Appeal from the orders of September 16, 1992 and October 2, 1992. As in the case of the Union, however, the judge investment as it is understood in law.
ordered the Notice of Appeal stricken off the record on the ground that it had been filed without authority of the Central Bank and beyond
15 days. In his order of October 28, 1992, the judge directed the execution of his September 11, 1992 order granting the Stockholders/
Investors' claim. 4. The claim of private respondents has not been clearly established and proved.

II. 5. The issuance of a writ of execution against the assets of PaBC was made with grave abuse of discretion.

Proceedings in the Court of Appeals The petitions in these cases must be dismissed.

The Liquidator filed separate Petitions for Certiorari, Prohibition and Mandamus  in the Court of Appeals to set aside the orders of the trial First. As stated in the beginning, the principal question in these cases is whether a petition for liquidation under §29 of Rep. Act No. 265 is in
court denying his appeal from the orders granting the claims of Union and of the Stockholders/Investors. The two Divisions of the Court of the nature of a special proceeding. If it is, then the period of appeal is 30 days and the party appealing must, in addition to a notice of
Appeals, to which the cases were separately raffled, rendered conflicting rulings. appeal, file with the trial court a record on appeal in order to perfect his appeal. Otherwise, if a liquidation proceeding is an ordinary action,
the period of appeal is 15 days from notice of the decision or final order appealed from.

In its decision of November 17, 1992 in CA-G.R. SP No. 27751 (now G.R. No. 09373) the Fifth Division 8 held in the case of the Union that the
proceeding before the trial court was a special proceeding and, therefore, the period for appealing from any decision or final order BP Blg. 129 provides:
rendered therein is 30 days. Since the notice of appeal of the Liquidator was filed on the 30th day of his receipt of the decision granting the
Union's claims, the appeal was brought on time. The Fifth Division, therefore, set aside the orders of the lower court and directed the latter
to give due course to the appeal of the Liquidator and set the Record on Appeal he had filed for hearing. §39. Appeals. — The period for appeal from final orders, resolutions, awards, judgments, or decisions of any
court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award,
judgment or decision appealed from: Provided, however, that in habeas corpus cases the period for appeal
On the other hand, on December 16, 1993, the Fourteenth Division 9 ruled in CA-G.R. SP No. 29351 (now G.R. No. 112991) in the case of the shall be forty-eight (48) hours from the notice of the judgment appealed from.
Stockholders/Investors that a liquidation proceeding is an ordinary action. Therefore, the period for appealing from any decision or final
order rendered therein is 15 days and that since the Liquidator's appeal notice was filed on the 23rd day of his receipt of the order appealed
from, deducting the period during which his motion for reconsideration was pending, the notice of appeal was filed late. Accordingly, the No record on appeal shall be required to take an appeal. In lieu thereof, the entire record shall be transmitted
Fourteenth Division dismissed the Liquidator's petition. with all the pages prominently numbered consecutively, together with an index of the contents thereof.

III. This section shall not apply in appeals in special proceedings and in other cases wherein multiple appeals are
allowed under applicable provisions of the Rules of Court.

Present Proceedings
The Interim Rules and Guidelines to implement BP Blg. 129 provides:

The Union and the Liquidator then separately filed petitions before this Court.
19. Period of Appeals. —

In G.R. No. 109373 the Union contends that:

(a) All appeals, except in habeas corpus  cases and in the cases referred to in
paragraph (b) hereof, must be taken within fifteen (15) days from notice of the
1. The Court of Appeals acted without jurisdiction over the subject matter or nature of the suit. judgment, order, resolution or award appealed from.

2. The Court of Appeals gravely erred in taking cognizance of the petition for certiorari filed by Nañagas who (b) In appeals in special proceedings in accordance with Rule 109 of the Rules of
was without any legal authority to file it. Court and other cases wherein multiple appeals are allowed, the period of
appeals shall be thirty (30) days, a record on appeal being required.

3. The Court of Appeals erred in concluding that the case is a special proceeding governed by Rules 72 to 109
of the Revised Rules of Court. The Fourteenth Division of the Court of Appeals held that the proceeding is an ordinary action similar to an action for interpleader under
Rule 63. 10 The Fourteenth Division stated:

4. The Court of Appeals erred seriously in concluding that the notice of appeal filed by Nañagas was filed on
time. The petition filed is akin to an interpleader under Rule 63 of the Rules of Court where there are conflicting
claimants or several claims upon the same subject matter, a person who claims no interest thereon may file an
 action for interpleader to compel the claimants to "interplead" and litigate their several claims among
themselves. (Section I Rule 63).
An interpleader is in the category of a special civil action under Rule 62 which, like an ordinary action, may be
appealed only within fifteen (15) days from notice of the judgment or order appealed from. Under Rule 62, the
preceding rules covering ordinary civil actions which are not inconsistent with or may serve to supplement the
provisions of the rule relating to such civil actions are applicable to special civil actions. This embraces Rule 41
covering appeals from the regional trial court to the Court of Appeals.
xxx xxx xxx
Thus, under Section 1 Rule 2 of the Rules of Court, an action is defined as "an ordinary suit in a court of justice
by which one party prosecutes another for the enforcement or protection of a right or the prevention or
redress of a wrong." On the other hand, Section 2 of the same Rule states that "every other remedy including
one to establish the status or right of a party or a particular fact shall be by special proceeding."
To our mind, from the aforequoted definitions of an action and a special proceeding, the petition for
assistance of the court in the liquidation of an asset of a bank is not "one to establish the status or right of a
party or a particular fact." Contrary to the submission of the petitioner, the petition is not intended to
establish the fact of insolvency of the bank. The insolvency of the bank had already been previously
determined by the Central Bank in accordance with Section 9 of the CB Act before the petition was filed. All
that needs to be done is to liquidate the assets of the bank and thus the assistance of the respondent court is
sought for that purpose.
It should be pointed out that this petition filed is not among the cases categorized as a special proceeding
under Section 1, Rule 72 of the Rules of Court, nor among the special proceedings that may be appealed under
Section 1, Rule 109 of the Rules.
We disagree with the foregoing view of the Fourteenth Division. Rule 2 of the Rules of Court provide:
§1. Action defined. — Action means an ordinary suit in a court of justice, by which the party prosecutes
another for the enforcement or protection of a right, or the prevention or redress of a wrong.
§2. Special Proceeding Distinguished. — Every other remedy, including one to establish the status or right of a
party or a particular fact, shall be by special proceeding.
Elucidating the crucial distinction between an ordinary action and a special proceeding, Chief Justice Moran states:" 11
Action is the act by which one sues another in a court of justice for the enforcement or protection of a right, or
the prevention or redress of a wrong while special proceeding is the act by which one seeks to establish the
status or right of a party, or a particular fact. Hence, action is distinguished from special proceeding in that the
former is a formal demand of a right by one against another, while the latter is but a petition for a declaration
of a status, right or fact. Where a party litigant seeks to recover property from another, his remedy is to file an
action. Where his purpose is to seek the appointment of a guardian for an insane, his remedy is a special
proceeding to establish the fact or status of insanity calling for an appointment of guardianship.
Considering this distinction, a petition for liquidation of an insolvent corporation should be classified a special proceeding and not an
ordinary action. Such petition does not seek the enforcement or protection of a right nor the prevention or redress of a wrong against a
party. It does not pray for affirmative relief for injury arising from a party's wrongful act or omission nor state a cause of action that can be
enforced against any person.
What it seeks is merely a declaration by the trial court of the corporation's insolvency so that its creditors may be able to file their claims in
the settlement of the corporation's debts and obligations. Put in another way, the petition only seeks a declaration of the corporation's
debts and obligations. Put in another way, the petition only seeks a declaration of the corporation's state of insolvency and the concomitant
right of creditors and the order of payment of their claims in the disposition of the corporation's assets.
Contrary to the rulings of the Fourteenth Division, liquidation proceedings do not resemble petitions for interpleader. For one, an action for
interpleader involves claims on a subject matter against a person who has no interest therein. 12 This is not the case in a liquidation
proceeding where the Liquidator, as representative of the corporation, takes charge of its assets and liabilities for the benefit of the
creditors.13 He is thus charged with insuring that the assets of the corporation are paid only to rightful claimants and in the order of
payment provided by law.
Rather, a liquidation proceeding resembles the proceeding for the settlement of state of deceased persons under Rules 73 to 91 of the Rules
of Court. The two have a common purpose: the determination of all the assets and the payment of all the debts and liabilities of the
insolvent corporation or the estate. The Liquidator and the administrator or executor are both charged with the assets for the benefit of the
claimants. In both instances, the liability of the corporation and the estate is not disputed. The court's concern is with the declaration of
creditors and their rights and the determination of their order of payment.
Furthermore, as in the settlement of estates, multiple appeals are allowed in proceedings for liquidation of an insolvent corporation. As the
Fifth Division of the Court of Appeals, quoting the Liquidator, correctly noted:
A liquidation proceeding is a single proceeding which consists of a number of cases properly classified as
"claims." It is basically a two-phased proceeding. The first phase is concerned with the approval and
disapproval of claims. Upon the approval of the petition seeking the assistance of the proper court in the
liquidation of a close entity, all money claims against the bank are required to be filed with the liquidation
court. This phase may end with the declaration by the liquidation court that the claim is not proper or without
basis. On the other hand, it may also end with the liquidation court allowing the claim. In the latter case, the
claim shall be classified whether it is ordinary or preferred, and thereafter included Liquidator. In either case,
the order allowing or disallowing a particular claim is final order, and may be appealed by the party aggrieved
thereby.
The second phase involves the approval by the Court of the distribution plan prepared by the duly appointed
liquidator. The distribution plan specifies in detail the total amount available for distribution to creditors
whose claim were earlier allowed. The Order finally disposes of the issue of how much property is available for
disposal. Moreover, it ushers in the final phase of the liquidation proceeding — payment of all allowed claims
in accordance with the order of legal priority and the approved distribution plan.
Verily, the import of the final character of an Order of allowance or disallowance of a particular claim cannot
be overemphasized. It is the operative fact that constitutes a liquidation proceeding a "case where multiple
appeals are allowed by law." The issuance of an Order which, by its nature, affects only the particular claims
involved, and which may assume finality if no appeal is made therefrom, ipso factocreates a situation where
multiple appeals are allowed.
A liquidation proceeding is commenced by the filing of a single petition by the Solicitor General with a court of
competent jurisdiction entitled, "Petition for Assistance in the Liquidation of e.g., Pacific Banking Corporation.
All claims against the insolvent are required to be filed with the liquidation court. Although the claims are
litigated in the same proceeding, the treatment is individual. Each claim is heard separately. And the Order
issued relative to a particular claim applies only to said claim, leaving the other claims unaffected, as each
claim is considered separate and distinct from the others. Obviously, in the event that an appeal from an
Order allowing or disallowing a particular claim is made, only said claim is affected, leaving the others to
proceed with their ordinary course. In such case, the original records of the proceeding are not elevated to the
appellate court. They remain with the liquidation court. In lieu of the original record, a record of appeal is
instead required to be prepared and transmitted to the appellate court.
Inevitably, multiple appeals are allowed in liquidation proceedings. Consequently, a record on appeal is
necessary in each and every appeal made. Hence, the period to appeal therefrom should be thirty (30) days, a
record on appeal being required. (Record pp. 162-164).
In G.R. No. 112991 (the case of the Stockholders/Investors), the Liquidator's notice of appeal was filed on time, having been filed on the
23rd day of receipt of the order granting the claims of the Stockholders/Investors. However, the Liquidator did not file a record on appeal
with the result that he failed to perfect his appeal. As already stated a record on appeal is required under the Interim Rules and Guidelines
in special proceedings and for cases where multiple appeals are allowed. The reason for this is that the several claims are actually separate
ones and a decision or final order with respect to any claim can be appealed. Necessarily the original record on appeal must remain in the
trial court where other claims may still be pending.
Because of the Liquidator's failure to perfect his appeal, the order granting the claims of the Stockholders/Investors became final.
Consequently. the Fourteenth Division's decision dismissing the Liquidator's Petition for Certiorari,Prohibition and Mandamus  must be
affirmed albeit for a different reason.
On the other hand, in G.R. No. 109373 (case of the Labor Union), we find that the Fifth Division correctly granted the Liquidator's Petition
for Certiorari. Prohibition and Mandamus. As already noted, the Liquidator filed a notice of appeal and a motion for extension to file a
record on appeal on December 10, 1991, i.e., within 30 days of his receipt of the order granting the Union's claim. Without waiting for the
resolution of his motion for extension, he filed on December 20, 1991 within the extension sought a record on appeal. Respondent judge
thus erred in disallowing the notice on appeal and denying the Liquidator's motion for extension to file a record on appeal.
The Fifth Division of the Court of Appeals correctly granted the Liquidator's Petition for Certiorari, Prohibition and Mandamus and its
decision should, therefore, be affirmed.

Second. In G.R. No. 109373, The Union claims that under §29 of Rep. Act No. 265, the court merely assists in adjudicating the claims of
creditors, preserves the assets of the institution, and implements the liquidation plan approved by the Monetary Board and that, therefore,
as representative of the Monetary Board, the Liquidator cannot question the order of the court or appeal from it. It contends that since the
Monetary Board had previously admitted PaBC's liability to the laborers by in fact setting aside the amount of P112,234,292.44 for the
payment of their claims, there was nothing else for the Liquidator to do except to comply with the order of the court.

The Union's contention is untenable. In liquidation proceedings, the function of the trial court is not limited to assisting in the
implementation of the orders of the Monetary Board. Under the same section (§29) of the law invoked by the Union, the court has
authority to set aside the decision of the Monetary Board "if there is a convincing proof that the action is plainly arbitrary and made in bad
faith." 14 As this Court held in Rural Bank of Buhi, Inc.  v. Court of Appeals: 15

There is no question, that the action of the monetary Board in this regard may be subject to judicial review.
Thus, it has been held that the Court's may interfere with the Central Bank's exercise of discretion in
determining whether or not a distressed bank shall be supported or liquidated. Discretion has its limits and has
never been held to include arbitrariness, discrimination or bad faith (Ramos v. Central Bank of the Philippines,
41 SCRA 567 [1971]).

In truth, the Liquidator is the representative not only of the Central Bank but also of the insolvent bank. Under §§28A-29 of Rep. Act No. 265
he acts in behalf of the bank "personally or through counsel as he may retain, in all actions or proceedings or against the corporation" and
he has authority "to do whatever may be necessary for these purposes." This authority includes the power to appeal from the decisions or
final orders of the court which he believes to be contrary to the interest of the bank.

Finally the Union contends that the notice of appeal and motion for extension of time to file the record on appeal filed in behalf of the
Central Bank was not filed by the office of the Solicitor General as counsel for the Central Bank. This contention has no merit. On October
22, 1992, as Assistant Solicitor General Cecilio O. Estoesta informed the trial court in March 27, 1992, the OSG had previously authorized
lawyers of the PDIC to prepare and sign pleadings in the case. 16 Conformably thereto the Notice of Appeal and the Motion for Additional
Time to submit Record on Appeal filed were jointly signed by Solicitor Reynaldo I. Saludares in behalf of the OSG and by lawyers of the
PDIC. 17

WHEREFORE, in G.R. No. 109373 and G.R. No 112991, the decisions appealed from are AFFIRMED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado and Puno, JJ. concur.

 Republic of the Philippines However, it must be emphasized that petitioner's contention that rules in ordinary actions are only supplementary to rules in special
Supreme Court proceedings is not entirely correct.
Manila  
  Section 2, Rule 72, Part II of the same Rules of Court provides:
   
THIRD DIVISION Sec. 2. Applicability of rules of Civil Actions. - In the absence of special provisions, the rules
  provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.
   
ALAN JOSEPH A. SHEKER,   G.R. No. 157912 Stated differently, special provisions under Part II of the Rules of Court govern special proceedings; but in the absence of
Petitioner,     special provisions, the rules provided for in Part I of the Rules governing ordinary civil actions shall be applicable to special proceedings, as
    Present: far as practicable.
       
    YNARES-SANTIAGO, J., The word practicable is defined as: possible to practice or perform; capable of being put into practice, done or accomplished.
[4]
- versus -   Chairperson,  This means that in the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible
    AUSTRIA-MARTINEZ, and where doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say that rules in
    CHICO-NAZARIO, ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules of Court requiring a certification of
    NACHURA, and non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of
ESTATE OF ALICE O. SHEKER,   REYES, JJ. filing fees for money claims against an estate would not in any way obstruct probate proceedings, thus, they are applicable to special
VICTORIA S. MEDINA-     proceedings such as the settlement of the estate of a deceased person as in the present case.
Administratrix,   Promulgated:  
Respondent.   December 13, 2007 Thus, the principal question in the present case is: did the RTC err in dismissing petitioner's contingent money claim against
x------------------------------------------------x respondent estate for failure of petitioner to attach to his motion a certification against non-forum shopping?
   
  The Court rules in the affirmative.
   
DECISION The certification of non-forum shopping is required only for complaints and other initiatory pleadings. The RTC erred in
  ruling that a contingent money claim against the estate of a decedent is an initiatory pleading.  In the present case, the whole probate
  proceeding was initiated upon the filing of the petition for allowance of the decedent's will.Under Sections 1 and 5, Rule 86 of the Rules of
  Court, after granting letters of testamentary or of administration, all persons having money claims against the decedent are mandated to
AUSTRIA-MARTINEZ, J.: file or notify the court and the estate administrator of their respective money claims; otherwise, they would be barred, subject to certain
  exceptions.[5]
   
This resolves the Petition for Review on Certiorari seeking the reversal of the Order [1] of the Regional Trial Court of Iligan City, Branch 6 (RTC) Such being the case, a money claim against an estate is more akin to a motion for creditors' claims to be recognized and taken into
dated January 15, 2003 and its Omnibus Order dated April 9, 2003. consideration in the proper disposition of the properties of the estate. In Arquiza  v. Court of Appeals,[6] the Court explained thus:
   
The undisputed facts are as follows. x x x The office of a motion is not to initiate new litigation, but to bring a material but incidental matter
  arising in the progress of the case in which the motion is filed.  A motion is not an independent right or
The RTC admitted to probate the holographic will of Alice O. Sheker and thereafter issued an order for all the creditors to file their remedy, but is confined to incidental matters in the progress of a cause. It relates to some question that is
respective claims against the estate. In compliance therewith, petitioner filed on October 7, 2002 a contingent claim for agent's commission collateral to the main object of the action and is connected with and dependent upon the principal remedy.
[7]
due him amounting to approximately P206,250.00 in the event of the sale of certain parcels of land belonging to the estate, and the amount  (Emphasis supplied)
of P275,000.00, as reimbursement for expenses incurred and/or to be incurred by petitioner in the course of negotiating the sale of said  
realties. A money claim is only an incidental matter in the main action for the settlement of the decedent's estate; more so if the claim is contingent
  since the claimant cannot even institute a separate action for a mere contingent claim. Hence, herein petitioner's contingent money claim,
The executrix of the Estate of Alice O. Sheker (respondent) moved for the dismissal of said money claim against the estate on the grounds not being an initiatory pleading, does not require a certification against non-forum shopping.
that (1) the requisite docket fee, as prescribed in Section 7(a), Rule 141 of the Rules of Court, had not been paid; (2) petitioner failed to  
attach a certification against non-forum shopping; and (3) petitioner failed to attach a written explanation why the money claim was not On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals,[8] that the trial court has jurisdiction to act on a money claim
filed and served personally. (attorney's fees) against an estate for services rendered by a lawyer to the  administratrix to assist her in fulfilling her duties to the estate
  even without payment of separate docket fees because the filing fees shall constitute a lien on the judgment pursuant to Section 2, Rule 141
On January 15, 2003, the RTC issued the assailed Order dismissing without prejudice the money claim based on the grounds advanced by of the Rules of Court, or the trial court may order the payment of such filing fees within a reasonable time. [9] After all, the trial court had
respondent. Petitioner's motion for reconsideration was denied per Omnibus Order dated April 9, 2003. already assumed jurisdiction over the action for settlement of the estate. Clearly, therefore, non-payment of filing fees for a money claim
  against the estate is not one of the grounds for dismissing a money claim against the estate.
Petitioner then filed the present petition for review on certiorari, raising the following questions:  
  With regard to the requirement of a written explanation, Maceda v. De Guzman  Vda. de Macatangay[10] is squarely in point. Therein, the
(a) must a contingent claim filed in the probate proceeding contain a certification against non-forum shopping, Court held thus:
failing which such claim should be dismissed?  
  In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of Rule 13 of the Rules of
(b) must a contingent claim filed against an estate in a probate proceeding be dismissed for failing to pay the Court, held that a court has the discretion to consider a pleading or paper as not filed if said rule is not
docket fees at the time of its filing thereat? complied with.
  Personal service and filing are preferred for obvious reasons.  Plainly, such should expedite action or
(c) must a contingent claim filed in a probate proceeding be dismissed because of its failure to contain a resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely to be
written explanation on the service and filing by registered mail? [2] incurred if service or filing is done by mail, considering the inefficiency of the postal service.  Likewise, personal
  service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following
Petitioner maintains that the RTC erred in strictly applying to a probate  proceeding the rules requiring a certification of non- less than ethical practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus
forum shopping, a written explanation for non-personal filing, and the payment of docket fees upon filing of the claim.  He insists that leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or (2)
Section 2, Rule 72 of the Rules of Court provides that rules in ordinary actions are applicable to special proceedings only in upon receiving notice from the post office that the registered mail containing the pleading of or other paper
a suppletory manner. from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not
  claiming it at all, thereby causing undue delay in the disposition of such pleading or other papers.
The Court gave due course to the petition for review on certiorari although directly filed with this Court, pursuant to Section  
2(c), Rule 41 of the Rules of Court.[3] If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal
  service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to consider a pleading
The petition is imbued with merit. or paper as not filed if the other modes of service or filing were not resorted to and no written explanation
  was made as to why personal service was not done in the first place. The exercise of discretion must,
 necessarily consider the practicability of personal service, for Section 11 itself begins with the clause
whenever practicable.
 
We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure,
personal service and filing is the general rule, and resort to other modes of service and filing, the
exception.Henceforth, whenever personal service or filing is practicable, in the light of the circumstances of
time, place and person, personal service or filing is mandatory.  Only when personal service or filing is not
practicable may resort to other modes be had, which must then be accompanied by a written explanation as
to why personal service or filing was not practicable to begin with. In adjudging the plausibility of an
explanation, a court shall likewise consider the importance of the subject matter of the case or the issues
involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11.
(Emphasis and italics supplied)
 
In Musa v.  Amor, this Court, on noting the impracticality of personal service, exercised its discretion and
liberally applied Section 11 of Rule 13:
 
As [Section 11, Rule 13 of the Rules of Court] requires, service and filing of
pleadings must be done personally whenever practicable. The court notes that in
the present case, personal service would not be practicable. Considering the
distance between the Court of Appeals and  Donsol, Sorsogon  where the
petition was posted, clearly, service by registered mail [sic] would have entailed
considerable time, effort and expense.  A written explanation why service was
not done personally might have been superfluous. In any case, as the rule is so
worded with the use of may, signifying permissiveness, a violation thereof gives
the court discretion whether or not to consider the paper as not filed.  While it
is true that procedural rules are necessary to secure an orderly and speedy
administration of justice, rigid application of Section 11, Rule 13 may be relaxed
in this case in the interest of substantial justice. (Emphasis and italics supplied)
 
In the case at bar, the address of respondents counsel is Lopez, Quezon, while petitioner
Sonias counsels is Lucena City. Lopez, Quezon is 83 kilometers away from Lucena City. Such distance makes
personal service impracticable. As in Musa v. Amor, a written explanation why service was not done
personally might have been superfluous.
 
As this Court held in Tan v. Court of Appeals, liberal construction of a rule of procedure has been allowed
where, among other cases, the injustice to the adverse party is not commensurate with the degree of his
thoughtlessness in not complying with the procedure prescribed. [11] (Emphasis supplied)
 
In the present case, petitioner holds office in Salcedo Village, Makati City, while counsel for respondent and the RTC which rendered the
assailed orders are both in Iligan City. The lower court should have taken judicial notice of the great distance between said cities and
realized that it is indeed not practicable to serve and file the money claim personally.  Thus, following Medina v. Court of Appeals,[12] the
failure of petitioner to submit a written explanation why service has not been done personally, may be considered as superfluous and the
RTC should have exercised its discretion under Section 11, Rule 13, not to dismiss the money claim of petitioner, in the interest of
substantial justice.
 
The ruling spirit of the probate law is the speedy settlement of estates of deceased persons for the benefit of creditors and
those entitled to residue by way of inheritance or legacy after the debts and expenses of administration have been paid. [13] The ultimate
purpose for the rule on money claims was further explained in Union Bank of the Phil. v.  Santibaez,[14] thus:
 
The filing of a money claim against the decedents estate in the probate court is mandatory.  As we held in the
vintage case of Py Eng  Chong  v. Herrera:
 
x x x This requirement is for the purpose of protecting the estate of the deceased by informing the executor
or administrator of the claims against it, thus enabling him to examine each claim and to determine whether
it is a proper one which should be allowed. The plain and obvious design of the rule is the speedy settlement
of the affairs of the deceased and the early delivery of the property to the  distributees, legatees, or heirs. The
law strictly requires the prompt presentation and disposition of the claims against the decedent's estate in
order to settle the affairs of the estate as soon as possible , pay off its debts and distribute the residue.
[15]
 (Emphasis supplied)
 
The RTC should have relaxed and liberally construed the procedural rule on the requirement of a written explanation for non-personal
service, again in the interest of substantial justice.
 
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Iligan City, Branch 6 dated January 15, 2003 and April 9,
2003, respectively, are REVERSED and SET ASIDE. The Regional Trial Court of Iligan City, Branch 6, is hereby DIRECTED to give due course
and take appropriate action on petitioner's money claim in accordance with Rule 82 of the Rules of Court.
No pronouncement as to costs.
 
SO ORDERED.
 THIRD DIVISION On the basis of the foregoing discussion, the subject Order dated January 13, 2000 denying OSGs Motion for Reconsideration of the Order
dated November 22, 1999 disapproving its Notice of Appeal was correctly issued. The instant petition, being in the nature of a special
proceeding, OSG should have filed, in addition to its Notice of Appeal, a record on appeal  in accordance with Section 19 of the Interim
Rules and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and underscoring supplied)

[G.R. No. 163604. May 6, 2005] The Republic (petitioner) insists that the declaration of presumptive death under Article 41 of the Family Code is not a special
proceeding involving multiple or separate appeals where a record on appeal shall be filed and served in like manner.

Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases wherein multiple appeals are allowed and a
record on appeal is required for an appeal to be perfected. The petition for the declaration of presumptive death of an absent spouse not
being included in the enumeration, petitioner contends that a mere notice of appeal suffices.
REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HON. COURT OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE FORTUNITO L.
MADRONA, RTC-BR. 35 and APOLINARIA MALINAO JOMOC, respondents. By Resolution of December 15, 2004, [8] this Court, noting that copy of the September 27, 2004 Resolution [9] requiring respondent to
file her comment on the petition was returned unserved with postmasters notation Party refused, Resolved to consider that copy deemed
served upon her.
DECISION
The pertinent provisions on the General Provisions on Special Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
CARPIO-MORALES, J.: PROCEEDINGS, read:

In In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner, RULE 72
the Ormoc City, Regional Trial Court, Branch 35, by Order of September 29, 1999,[1] granted the petition on the basis of the Commissioners SUBJECT MATTER AND APPLICABILITY
Report[2] and accordingly declared the absentee spouse, who had left his petitioner-wife nine years earlier, presumptively dead. OF GENERAL RULES

In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2 of the Family Code. Said article provides
that for the purpose of contracting a valid subsequent marriage during the subsistence of a previous marriage where the prior spouse had Section 1. Subject matter of special proceedings. Rules of special proceedings are provided for in the following:
been absent for four consecutive years, the spouse present must institute  summary proceedings for the declaration of presumptive death
of the absentee spouse, without prejudice to the effect of the reappearance of the absent spouse.
(a) Settlement of estate of deceased persons;
The Republic, through the Office of the Solicitor General, sought to appeal the trial courts order by filing a Notice of Appeal. [3] (b) Escheat;
(c) Guardianship and custody of children;
By Order of November 22, 1999 s,[4] the trial court, noting that no record of appeal was filed and served as required by and pursuant (d) Trustees;
to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present case being a special proceeding, disapproved the Notice of Appeal. (e) Adoption;
(f) Rescission and revocation of adoption;
The Republics Motion for Reconsideration of the trial courts order of disapproval having been denied by  Order of January 13, 2000, (g) Hospitalization of insane persons;
[5]
 it filed a Petition for Certiorari[6] before the Court of Appeals, it contending that the declaration of presumptive death of a person under (h) Habeas corpus;
Article 41 of the Family Code is not a special proceeding or a case of multiple or separate appeals requiring a record on appeal. (i) Change of name;
(j) Voluntary dissolution of corporations;
By Decision of May 5, 2004, [7] the Court of Appeals denied the Republics petition on procedural and substantive grounds in this (k) Judicial approval of voluntary recognition of minor natural children;
wise: (l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.
At the outset, it must be stressed that the petition is not sufficient in form. It failed to attach to its petition a certified true copy of the
assailed Order dated January 13, 2000 [denying its Motion for Reconsideration of the November 22, 1999 Order disapproving its Notice of
Appeal]. Moreover, the petition questioned the [trial courts] Order dated August 15, 1999, which declared Clemente Jomoc presumptively Sec. 2. Applicability of rules of civil actions.  In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as
dead, likewise for having been issued with grave abuse of discretion amounting to lack of jurisdiction, yet, not even a copy could be found in practicable, applicable in special proceedings. (Underscoring supplied)
the records. On this score alone, the petition should have been dismissed outright in accordance with Sec. 3, Rule 46 of the Rules of Court.

The pertinent provision of the Civil Code on presumption of death provides:

However, despite the procedural lapses, the Court resolves to delve deeper into the substantive issue of the validity/nullity of the assailed
order.
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The principal issue in this case is whether a petition for declaration of the presumptive death of a person is in the nature of a special
proceeding. If it is, the period to appeal is 30 days and the party appealing must, in addition to a notice of appeal, file with the trial court a
record on appeal to perfect its appeal. Otherwise, if the petition is an ordinary action, the period to appeal is 15 days from notice or decision x x x (Emphasis and underscoring supplied)
or final order appealed from and the appeal is perfected by filing a notice of appeal (Section 3, Rule 41, Rules of Court).

As defined in Section 3(a), Rule 1 of the Rules of Court, a civil action is one by which a party sues another for the enforcement or protection
of a right, or the prevention of redress of a wrong while a special proceeding under Section 3(c) of the same rule is defined as a remedy by
which a party seeks to establish a status, a right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March
2, 1999).
Considering the aforementioned distinction, this Court finds that the instant petition is in the nature of a special proceeding and not an
ordinary action. The petition merely seeks for a declaration by the trial court of the presumptive death of absentee spouse Clemente
Jomoc. It does not seek the enforcement or protection of a right or the prevention or redress of a wrong. Neither does it involve a demand
of right or a cause of action that can be enforced against any person.
Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored its grant of the petition for the declaration
of presumptive death of the absent spouse, provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouses had been absent for four consecutive years and the spouse present had a well-
founded belief that the absent spouses was already dead. In case of disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose pf contracting the subsequent marriage under the preceding paragraph, the spouses present must institute a  summary
proceeding as provided in this Code  for the declaration of presumptive death of the absentee , without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis and underscoring supplied)
 Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving petitioners Notice
of Appeal, provides:

Sec. 2. Modes of appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a
copy thereof upon the adverse party. No record on appeal shall be required except in  special proceedings  and other cases of multiple or
separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner.
(Emphasis and underscoring supplied)

xxx

By the trial courts citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to have her absent
spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent marriage . Ergo, the petition for that
purpose is a summary proceeding, following above-quoted Art. 41, paragraph 2 of the Family Code.

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following
provision, inter alia:

xxx

Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Codes
requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. (Emphasis
and underscoring supplied)

x x x,

there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the Family Code,  not a
special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary
proceeding, the filing of a Notice of Appeal from the trial courts order sufficed.

That the Family Code provision on repeal, Art. 254, provides as follows:

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as
amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and
Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations rules and regulations, or parts
thereof, inconsistent therewith are hereby repealed, (Emphasis and underscoring supplied),

seals the case in petitioners favor.

Finally, on the alleged procedural flaw in petitioners petition before the appellate court. Petitioners failure to attach to his petition
before the appellate court a copy of the trial courts order denying its motion for reconsideration of the disapproval of its Notice of Appeal is
not necessarily fatal, for the rules of procedure are not to be applied in a technical sense. Given the issue raised before it by petitioner, what
the appellate court should have done was to direct petitioner to comply with the rule.

As for petitioners failure to submit copy of the trial courts order granting the petition for declaration of presumptive death,
contrary to the appellate courts observation that petitioner was also assailing it, petitioners 8-page petition [10] filed in said court does not so
reflect, it merely having assailed the order disapproving the Notice of Appeal.

WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Let the case be
REMANDED to it for appropriate action in light of the foregoing discussion.

SO ORDERED.

Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and  Garcia, JJ., concur.