Suit was commenced on October 15, 1956 by Marcelina Salinangan, Moyang Senduyan, Cellona

Abayon and Juaning, all surnamed Manoba heirs of Campa-an (Manobo), against Sebastian
Miranda in the Court of First Instance of Davao (civil case 2127). The plaintiffs sought to recover
from the defendant the ownership and possession of a parcel of land of a little more than 9 hectares
in area, situated in Malita, Davao, and covered by OCT 1652 issued on January 19, 1937 in the
name of the Heirs of Campa-an( Manobo), together with all the improvements standing thereon, plus
damages, actual and exemplary, attorney's fees and costs. The complainant alleges in essence that
they are the absolute co-owners of the land, and that the defendant, through gross
misrepresentations and deceit, succeeded in 1936 in obtaining from the plaintiff Salinangan all the
papers and documents appertaining thereto, and thereafter securing a certificate of title in his name
without their knowledge and consent. In his answer with counterclaim, Miranda averred that he took
possession of the land sometime in 1938, after acquiring it in an auction sale conducted by the
provincial treasurer of Davao on May 13, 1938, and that since then he had been in continuous
ownership and possession thereof.

After 17 postponements covering a period of almost four years, the case was finally set for hearing
on September 30, 1960, counsel of both parties being duly notified thereof.

On the said date, the counsel for the plaintiffs appeared in court, but neither the defendant nor his
counsel was present. The plaintiffs thereupon prayed the court to allow them to present their
evidence ex parte. This prayer was granted, but only after the trial judge had verified that the
counsel of the defendant had been duly notified of the hearing, and after waiting for about two hours
for him to put in his appearance.

On December 21, 1960, the trial court rendered judgment for the plaintiffs, ordering the defendant
Miranda to vacate the land and deliver possession thereof together with all the improvements
thereon to the plaintiffs, and to pay the latter P5,000 in damages with legal interest thereon from the
date of the filing of the complaint, plus costs.

A copy of this decision was received by the defendant's counsel on January 20, 1961. On the
following February 3, he filed a motion for reconsideration. This motion was denied on May 26, 1961.
Notice of denial was received by the defendant's counsel on June 6, 1961. On July 17, 1961 the
court ordered the issuance of a writ of execution. On July 26, 1961 the defendant's counsel in a
written manifestation, informed the court that the defendant Miranda had died in the meanwhile on
February 21, 1961, leaving his wife Estefania de Miranda and children as heirs, and that he is in
receipt of a copy of the plaintiff's motion for issuance of a writ of execution, and stated that "we
submit to the discretion of the Honorable Court on the above-entitled case". On August 11, 1961, a
writ of execution was issued against the defendant Miranda, but was served on his wife "who
refused to sign but received copy". On August 16, 1961 entry of judgment was made.

The record further shows that on August 30, 1961 the court promulgated an order stating that "since
the defendant had died after the rendition of the judgment the writ of execution already issued
against defendant may be enforced against his successor-in-interest (the heirs) (Rule 39, sec. 7,
Rules of Court)," and further that "The petition for relief from judgment is hereby denied for lack of
merits." The defendant's subsequent motion for reconsideration was denied on September 11, 1961.

No appeal was taken by the heirs of the defendant. Instead, on April 5, 1962, almost 7 months later,
they filed the present petition with this Court praying that all the proceedings had in the court below
be annulled. They tender for resolution two issues, namely, (1) did the respondent judge incur in,
grave abuse of discretion amounting to lack of jurisdiction in allowing the plaintiffs to introduce their
evidence ex parte at the hearing on September 30, 1960, without reserving to the defendant
Miranda the right to present evidence at a later date? (2) having in view the provisions of section 7 of
Rule 39, was the order of July 17, 1961 directing the issuance of a writ of execution proper and legal
although entry of judgment was made long after the death of the defendant Miranda?

Upon the first issue, the petitioners contend that the trial court gravely abused its discretion in not
reserving to the defendant Miranda the right to present evidence at a later date, arguing that the
plaintiff had been granted ten postponements, while the defendant had been granted only one
postponement. This contention is without merit.

Although it is true, as the petitioners aver, that trial had been postponed ten times at the instance of
the plaintiffs and only once at the instance of the defendant, it is nonetheless also true that trial had
also been postponed six times at the instance of the counsel of both parties. In other words 17
postponements, all told, were granted without objection from the parties. The record does not reveal
the ground or grounds relied upon for each postponement granted, but we must assume that the trial
court correctly exercised its discretion in the matter of every postponement granted by it, in the
absence of any evidence to the contrary.

Focusing now our attention upon the incidents that transpired anent the hearing on September 30,
1960, we note that it is not disputed by the petitioners that the counsel of the defendant Miranda not
only was duly notified of the said hearing but as well that he did not ask for a postponement thereof.
The judge waited for two hours on that day for the defendant's counsel to appear, and only after the
latter had failed to appear and after the trial judge had verified from the record that the defendant's
counsel had duly received notice of the hearing did he allow the plaintiffs to introduce their
evidence ex parte. We are not persuaded that in so doing the trial judge incurred in grave abuse of
discretion. The matter of continuances is ever addressed to the sound discretion of the court, and its
action thereon will not be disturbed on review, save upon a patent and manifest abuse of discretion,
which is not shown here.

The petitioners nevertheless argue that the court should have reserved to the defendant his right to
present his evidence at a later date instead of declaring him in default. The fact of the matter is that
the court did not declare the defendant in default, but proceeded to render judgment on the evidence
presented by the plaintiffs. And as to the alleged right of the defendant to present his evidence at a
later date, this Court has held that the "failure of defendant to be present at the hearing" has the
"effect of depriving him of his right to present evidence (Santiago vs. Conde, L-11981, March 17,
1959).

Upon the second issue, the petitioners argue that because section 7 of Rule 39 of the old Rules of
Court, provides that "where a party dies after the entry of judgment or order, execution thereon may
issue, or one already issued may be enforced ... against his executor or administrator or successor-
in-interest if the judgment be for recovery of real property ...," the writ of execution of August 11,
1961 was void as the defendant had died on the previous February 21, and entry of judgment was
made only on August 16, 1961. The syllogism of the petitioners runs thus: the defendant died before,
not after, the entry of judgment, therefore the writ of execution issued is void.

We cannot accept this argument. The provision (section 7 of Rule 39) relied upon by the petitioners
cannot, be so construed as to invalidate the writ of execution already issued in so far as service
thereof upon the heirs or successors-in-interest of the defendant is concerned. It merely indicates
against whom a writ of execution is to be enforced when the losing party dies after the entry of
judgment or order. Nothing therein, nor in the entire Rule 39, to our mind, even as much as intimates
that a writ of execution issued after a party dies, which death occurs before entry of judgment, is a
nullity. The writ may yet be enforced against his executor or administrator, if there be any, or his
successor-in-interest. In the case at bar, judgment was rendered on December 21, 1960, two
months before the death of the defendant. Since neither the defendant, nor his heirs after his death,
appealed from the judgment, the writ of execution issued as a matter of course. The matter of the
death of the defendant was communicated to the trial court for the first time on July 26, 1961, after
the decision had become final. And in its order of August 30, 1961, the court clearly commanded that
the writ of execution already issued be enforced against the deceased defendant's successor-in-
interest, and this because the record does not at all show that there has been an executor or
administrator appointed for the estate of the deceased.

That the writ of execution was issued on August 11, 1961, or five days before entry of judgment was
physically made, is a non-prejudicial error.

Upon the foregoing considerations, the present petition is patently without merit.

Accordingly, the petition is denied. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez,
JJ., concur.

G.R. No. 96296 June 18, 1992

RAFAEL S. DIZON, in his capacity as Administrator of the Estate of the Deceased JOSE P.
FERNANDEZ, REDENTOR MELO, ELIODORO C. CRUZ, PIER 8 ARRASTRE & STEVEDORING
SERVICES, INC., COMPAÑIA MARITIMA, PASIG STEVEDORING COMPANY, INC., and
WESTERN PACIFIC CORPORATION, petitioners, 
vs.
HON. COURT OF APPEALS, HON. PROTACIO C. STO. TOMAS, Judge, RTC, Branch 14, Ligao,
Albay, and JOSE BALDE, respondents.

NARVASA, C.J.:

In the original action has given rise to the proceedings at bar   — instituted in 1975 by the plaintiff
1

Jose Balde (private respondent herein) principally for the recovery of damages resulting from the
allegedly illegal termination of his employment from the so-called "Fernandez Companies"   effected
2

by herein petitioners — one of the defendants, Jose P. Fernandez, denominated the "principal" one,
died before final judgment of the Trial Court. The legal consequences of that party's death are what
are now chiefly in issue.

The complaint filed in the Court a quo   named as defendants the six (6) petitioner corporations
3

herein, as well as (1) Jose P. Fernandez "in his own personal capacity and/or as Chairman of the
Board, President, or Director" of said firms; (2) Redentor R. Melo, "in his own personal capacity
and/or as Chief Legal Counsel of Pier 8 Arrastre & Stevedoring Services, Inc.;" and (3) Eliodoro C.
Cruz, "in his own personal capacity and/or as a legal assistant" in the same company. It alleged that
Balde was "summarily ousted and dismissed" from his job as "Chief Accountant and Credit &
Collection Manager of Pier 8 Arrastre and Stevedoring Services . . . (since) 1973 and Chief
Accountant of Western Pacific Corporation . . . (since) 1974."

The defendants filed a motion to dismiss on the ground that the Court had no jurisdiction over the
nature of the action, which was essentially a "money claim" arising from an employer-employee
relationship exclusively cognizable by the National Labor Relations Commission, and that no official
decision had yet been reached regarding termination of Balde's employment.   The defendants also
4
filed a supplemental motion urging dismissal of the action because venue had been improperly
laid.   After oppositions were filed to both motions, the Court issued an Order holding "in abeyance
5

the resolution . . . (thereof) until pre-trial is conducted and evidence is presented . . . without
prejudice to dismissing the case when the ground for dismissal becomes apparent."  6

The defendants thereafter presented their "Answer with Compulsory Counterclaim," which contained
specific denials and qualified admissions of the averments of the complaint; alleged as affirmative
defenses the same grounds alleged in their motions to dismiss, and the fact that they had acted
entirely in accordance with law and in all good faith in discharging Balde from employment, he
having "done acts prejudicial and inimical to their interest and (which) have caused damage;" and
seeking recovery of moral, actual and exemplary damages resulting from Balde's "completely
unfounded and baseless action."   Pre-trial and trial ensued after Balde filed his answer to the
7

counterclaim and a reply to the answer.

Balde's presentation of his evidence-in-chief was concluded upon the admission by the Court of his
exhibits over the defendants' objections, by Order dated October 21, 1987.

Some two weeks afterwards, or more precisely on November 7, 1987, defendant Jose P. Fernandez
died. Notice thereof was given to the Court by his counsel, through a manifestation dated November
16, 1987.

As intimated in the opening paragraph of this Decision, the death of Fernandez brought up the
question of the legal consequences of that demise, and the action that Trial Court should properly
take in view thereof. For the sake of clarify, and the better to gauge the propriety of the action
actually taken by Trial Court, the narration of the material facts is interrupted at this point, so that a
brief exposition of the applicable law may be made.

The effects of the death of a defendant in a civil suit are dependant upon of the nature action:
whether (a) the action is a personal one for "recovery of money, debt or interest thereon," 8 or (b) is not
for said purpose, 9 i.e., it is a real action, 10 or one for recovery of personal property "or to enforce a lien thereon, and actions to recover
damages for an injury to person or property, real or personal." 11 The effects of the defendant's death are dependent, as well, on the time of
his demise.

The law says that "(w)hen the action is for recovery of money, debt or interest thereon, and the
defendant dies before final judgment in the Court of First Instance (now Regional Trial Court), it shall
be dismissed to be prosecuted in the manner especially provided in these rule."  12

The "especial" manner of the prosecution of said money claims against the decedent is set forth in
Rule 86 of the Rules of Court,   in connection with the judicial proceedings for the settlement of the
13

estate of a deceased person. "The reason for the dismissal of the ordinary action," as a noted
commentator stresses, "is that upon the death of the defendant a testate or intestate proceeding
shall be instituted in the proper court wherein all his creditors must appear and file their claims which
shall be paid proportionately out of the property left by the deceased. It is, therefore, to avoid useless
duplicity of procedure that the ordinary action must be wiped out from the ordinary courts."  14

If the defendant dies after final judgment of the Regional Trial Court, the action (for money, debt or
interest thereon) is not dismissed, and an appeal may be taken by or against the administrator;   but 15

if that judgment against the deceased becomes final and executory, it shall be enforced, not by
execution under Rule 39, but in accordance with Section 5 of Rule 86,   i.e., by presenting the same 16

as a claim against the estate.

If, on the other hand, the claim against the defendant is other than for "money, debt or interest
thereon" — i.e., it is a real action,   or one for recovery of personal property "or to enforce a lien
17

thereon, and actions to recover damages for an injury to person or property, real or
personal," supra   — and the defendant dies, the claim against him is not thereby extinguished, and
18

the action will not be dismissed but continue against the decedent's legal representative. Section 17,
Rule 3 specifies the procedure to be followed, viz.

. . . After a party dies and the claim is not thereby extinguished, the court shall order,
upon proper notice, the legal representative of the deceased to appear and to be
substituted for the deceased, within a period of thirty (30) days, or within such time
as may be granted. If the legal representative fails to appear within said time, the
court may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court, and the
representative shall immediately appear for and on behalf of the interest of the
deceased. The court charges involved in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs. 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 guardian ad litem for the minor
heirs.

The record discloses that the Court did not dismiss the action as against the deceased defendant,
Fernandez, conformably with Section 21, Rule 3. What it did was: (a) to require the defendants' new
counsel, former Supreme Court Justice Arsenio P. Dizon, by Order dated November 21, 1987, "to
effect the substitution of said deceased defendant within thirty (30) days . . .,"   (a requirement it
19

reiterated in another Order dated October 4, 1988); and (b) on later learning that said Justice Dizon
was the Administrator of the Fernandez Estate, to require the latter, by Order dated January 2, 1989,
to appear before it on February 4, 1989 (later reset to March 6, 1989) "to be substituted as party
defendant for and in behalf of the deceased Jose P. Fernandez" The Trial Judge was obviously
proceeding in accordance with Section 17, Rule 3; and it was doing so quite erroneously, since the
action against the deceased and his co-defendants was clearly one for the "recovery of money, debt
or interest thereon" which, by direction of Section 21 of the same Rule, should "be dismissed to be
prosecuted in the manner especially provided in these rules," at least in so far as concerned the
deceased defendant.

Justice Dizon was unable to appear at the hearing of March 6, 1989, on account of the poor state of
his health at the time. This he alleged in a telegram to the Court, and in a subsequent formal motion,
seeking on that account a resetting of the hearing to "either April 17, 18 and 28/89 or May 1, 2 and 
3/89."   Unfortunately, neither the telegram nor the motion was received by the Trial Court in time.
20

Hence, by Order dated March 6, 1989, the Court directed plaintiff Jose Balde to formally move in
writing to have the case submitted for decision by reason of the defendant's failure to appear despite
notice.

When the defendants received notice of the Order of March 6, 1989, they promptly moved for
reconsideration through Atty. Rafael Dizon, under date of March 18, 1989.   By order dated March
21

31, 1989, the Trial Court, without referring to its earlier Order of March 6, 1989, re-schedule the
hearing on April 24 1989, but required that "if and when Atty. Arsenio Dizon shall still be indisposed
during the next hearing, one of the associates of the law firm shall appear for the defendants in order
to avoid further delay in the disposition of this case . . . (considering that) this case was fled since
1975 and this case could not be disposed of because of continuous postponement by the parties."  22

However, notice of the Order of March 31, 1989 — resetting the hearing on April 24, 1989 — sent
from Ligao, Albay, was not received by the defendants in Metro Manila until the very day of the
hearing, April 24, 1989. Atty. Rafael Dizon immediately dispatched a telegram to the Court that same
day, reading as follows: "RECEIVED COPY MARCH 31, 1989 ORDER SETTING HEARING OF
CIVIL CASE, 528 APRIL 24 ONLY TODAY APRIL 24, 1989, REQUEST RESET TO MAY 2, 14, 25,
31, JUNE 1, 2, 1989. FORMAL MOTION TO FOLLOW." The telegram evidently came too late. What
the Court had before it when the case was called at the appointed hour on April 24, 1989 was Atty.
Dizon's motion dated March 18, 1989 for reconsideration of the Order of March 6, 1989, which had
already been granted (the Court having on March 31, 1989, reset the hearing on April 24, 1989). The
Court then proceeded to declare said motion of April 18, 1989 "moot and academic" and, in view of
the defendants' absence at the hearing of April 24, 1989, to consider the case submitted for
decision. These disposition it made in the following Order, to wit:

When this case was called for hearing this morning, the court received the Motion
seeking for reconsideration of the order dated March 6, 1989 considering this case
submitted for decision, for failure of counsel for the defendants to appear on the said
setting. The record shows that the order sought to be reconsidered by defendants
has already been reconsidered by this court, when the court ordered on March 31,
1989 to set this case for today.

The Motion for Reconsideration filed by Atty. Rafael S. Dizon, now appearing as
counsel for the defendants, is hereby considered moot and academic.

In view, however, of the fact that the defendants and counsel failed to appear today
without justifiable cause, on motion of plaintiff, this case is hereby ordered submitted
for decision based on the evidence so far presented.

According to the petitioners, notices of the Orders of April 24, 1989 and March 31, 1989 were never
served on them or their counsel.   This is why, under date of October 19, 1989, they filed a "Motion
23

to Resolve Motion for Reconsideration dated March 18, 1989 and to Set Case for Hearing."   This
24

last motion was resolved by the Trial Court — now presided over by Hon. Protacio C. Sto. Tomas —
in an Order dated October 17, 1989. In said Order the Court quoted verbatim the Order of April 24,
1989 of "Hon. Salvador D. Silerio, then Presiding Judge of this Court;" pointed out that said order of
April 24, 1989 "has not been reconsidered and set aside;" and directed the immediate transmittal,
"pursuant to an existing Administrative Order issued by the Supreme Court, . . . (of) the records . . .
to Judge Salvador D. Selerio, Presiding Judge of RTC, Branch 8, Legazpi City for him to render the
corresponding decision."  25

The petitioners received copy of the Order of October 17, 1989 on November 7, 1989. On the same
day, they also received a copy of another Order of the same Court dated October 25,
1989,   dealing with their motion of October 19, 1989 and reading as follows:
26

The records disclosed that the Motion to Resolve Motion for Reconsideration dated
March 18, 1989 and to Set Case for Hearing filed by Atty. Rafael S. Dizon dated
October 19, 1989 has already been resolved and acted upon, in the sense, that this
case was already submitted for decision as of April 24, 1989 signed by Hon.
Salvador D. Silerio, presiding Judge, copy of which was furnished Atty. Rafael Dizon.
Atty. Dizon appears not to have a fixed address as the order of the court sent to him
addressed at 5th Floor, Strata Building, Emerald Avenue, Ortigas Commercial
Complex, Pasig, Metro Manila has not been claimed by said counsel.

Examining the instant motion, we find that it does not conform with the mandatory of
Sections 4, 5 and 6 of Rule 15 of the Rules of Court.
 Wherefore, the motion is denied.

On November 21, 1989, the petitioners once again filed a motion for reconsideration, this time
directed against the Orders of April 24, October 17, and October 25, 1989. In that motion,
denominated "Motion for Reconsideration with Motion to Dismiss,"   the petitioners —
27

1) averred that they had failed to appear at the hearing on April 24, 1989 at 8:30 a.m., as directed in
the Order of March 31, 1989, because they received notice thereof "ONLY ON THE VERY SAME
DAY AND PAST THE TIME OF THE SCHEDULED HEARING," as stated in their telegram of April
24, 1989; and

2) argued that, "due to defendant Jose P. Fernandez death on November 7, 1987" and in light of
"Rule 3, Sec. 21," the case "must necessarily be dismissed and prosecuted pursuant to Sec. 1, Rule
87 of the Rules of Court."

The petitioners set the motion for hearing on December 6, 1989 at 8:30 A.M., furnishing copy thereof
on advance counsel by registered mail. In anticipation of his attendance at the hearing of his motion,
Atty. Rafael Dizon booked passage on the PAL flight from Manila to Legazpi City on December 5,
1989 and from Legazpi to Manila on December 6, 1989.  28

Events however made it impossible for Atty. Dizon to appear at the sala of Judge Sto. Tomas, on
December 6, 1989. These events, specified by Dizon, were those resulting from the aborted coup
d'etat on December 1, 1989, i.e., "the closure of the Manila Domestic Airport, the indefinite
cancellation of all domestic airline flights and the unavailability of Public transportation going out of
Metro Manila." Alleging these as basis, Atty. Dizon sought a resetting of the hearing on his motion to
December 20, 1989, through a telegram,   and an "Urgent Motion to Reset" dated December 4,
29

1989. 30

The Court denied the telegraphic request for postponement, in an Order dated December 6,
1989, viz.:

When the Motion for Reconsideration with Motion to Dismiss dated November 21,
1989 was called for hearing, the movant Rafael S. Dizon failed to appear
notwithstanding that this is the date set forth by him. However, a telegram has been
received wherein said movant prays for a postponement of the hearing of said
motion alleging that a formal motion will follow.

Examining the records, we find that the first motion for reconsideration dated March
18, 1989 was already resolved and denied by this Court in its order of October 25,
1989. This being the case, and considering that the rules does not allow a second
motion for reconsideration without first securing leave of court, the instant motion for
reconsideration dated November 21, 1989 is DENIED.

In view of the foregoing development, the petitioners felt constrained to institute, as they did institute
in the Court of Appeals a special civil action of certiorari to annul and set aside the Trial Court's five
(5) Orders just mentioned, of April 24, May 29, October 17, October 25, and December 6,
1989.   Their action failed. The Appellate Tribunal declared that upon the facts, it was "not prepared
31

to rule that respondent Court's issuance of the assailed orders is tainted with grave abuse of
discretion calling for the application of the extra-ordinary writ of certiorari," and accordingly dismissed
their petition. More particularly, it ruled that —
1) "the alleged error committed by respondent Court in not dismissing the complaint against the
deceased defendant Jose Fernandez, if at all, is merely an error of judgment and not of jurisdiction,"
and hence, not correctible by the special civil action of certiorari under Rule 65;

2) "even if the claim against the deceased . . . Fernandez may de dismissed, it does not necessarily
follow that the complaint in Civil Case No. 528-LV should be dismissed in toto, considering that there
are other defendants in the case, and considering further that some of the defendants in the case,
and considering further that some of the defendants, the principals at that, are corporate entities with
separate juridical personalities;" and

3) "if petitioners did not receive copies of the orders issued by respondent Court, it was for the
reason that they have been continuously changing their address."

Their motion for reconsideration having been denied, by Resolution of the Court of Appeals dated
November 21, 1990, the petitioners have appealed to this Court. Here they contend that:

1) "The Rules of Court mandate the dismissal of the case and not substitution of the deceased
defendant;" and

2) They "had a valid/justifiable cause for failing to appear in the scheduled hearing."

The private respondent's two-page comment dated February 16, 1991 submitted in response to the
Court's requirement therefor, does nothing except to assert, basically, that "there is no showing at all
that the Hon. Court of Appeals acted with grave abuse of discretion," contrary to the petitioners'
claim of "patent excess of jurisdiction and/or grave abuse of discretion" on the part of the Appellate
Court." 32

By this Court's Resolution of April 15, 1991, the petition was given due course and memoranda
required of the parties, which have since been
submitted.  33

The first point raised by petitioners is well taken. As already stated,   the law is quite explicit and
34

leaves the Trial Court with no choice: "When the action is for recovery of money, debt or interest
thereon, and the defendant dies before final judgment in the Court of First Instance (now Regional
Trial Court), it shall be dismissed to be prosecuted in the manner especially provided in these
rules."   It was therefore error for the Trial Court to decline to dismiss the suit as against the
35

deceased Fernandez and to insists on continuing with the action as to Fernandez by ordering his
substitution by his administrator. 36

It was error, too, for the Trial Court to deny Atty. Dizon's motion dated November 21, 1989 for
reconsideration of the Orders of April 24, October 17, and October 25, 1989, on the ground that it
was in effect a second motion for reconsideration "the rules does (sic) not allow a second motion for
reconsideration without first securing leave of court . . ." There is no such rule as regards
interlocutory orders like those sought to be reconsidered. The Trial Judge might possibly have had in
mind Section 4, Rule 37, of the Rules of Court, governing a "second motion for new trial, based on a
ground not existing nor available when the first motion was made," but the section clearly applies
only to final judgments, not to interlocutory orders. The Trial Judge might have had in mind Section
1, Rule 52 pertinently providing that "(n)o more than one motion for re-hearing or reconsideration
shall be filed without express leave of court," but again, it is clear that the proviso applies only to final
judgments of the Court of Appeals, not to interlocutory orders or resolutions. The Trial Judge might
have had in view Section 11 of Batas Pambansa Bilang 129 (Judiciary Reorganization Act of 1980)
which inter alia decrees that "no second motion for reconsideration shall be entertained," or
paragraph 4 of the Interim or Transitional Rules relative to the implementation of said B.P. Blg. 129,
promulgated by this Court, declaring that "(n)o party shall be allowed a second motion for
reconsideration of a final order or judgment;" but again these provisions obviously have reference
not to interlocutory orders but to final judgments or orders. A second motion attacking an
interlocutory order might possibly be denied on the ground that it is a "rehash" or mere reiteration of
grounds and arguments already passed upon and resolved by the Court; it cannot be rejected on the
ground that a second motion for reconsideration of an interlocutory order is forbidden by law.

The question that now arises is whether these errors amount to grave abuse of discretion on the part
of the Trial Judge. The first does. In adamantly refusing to dismiss the action against the deceased
Fernandez so that the claim against him might be filed in the special proceedings for the settlement
of his estate, it is clear that His Honor was refusing to apply an explicit mandate of the Rules of
Court although well aware of it, and of the fact that no reason existed in the record for excepting the
case at bar from the operation of the rule. Such a refusal, in other words, may not be deemed to
constitute "merely an error of judgment and not of jurisdiction," as the Court of Appeals characterizes
it, but as an outright defiance of the plain provisions of the Rules of Court which had been insistently
brought to his attention; an act therefore, executed without any jurisdiction in law, whimsically,
capriciously, and oppressively; an act, in short, done with grave abuse of discretion.  37

What has just been stated makes inconsequential the failure of Atty. Dizon to appear before the
Court on December 6, 1989, the date set by him for the hearing of his motion for reconsideration of
November 21, 1989 — in which he asked that said hearing be reset because fortuitous events
precluded his appearance, and reiterated the prayer that the action be dismissed as against
defendant Fernandez because of the latter's demise. For even assuming that Atty. Dizon's failure to
receive notices of, and consequent omission to appear at, the hearings of February 4, 1989, March
6, 1989 and April 24, 1989 were inexcusable, because the failure to receive said notices was due to
his "continuously changing his address," as the Court of Appeals points out, that circumstance did
not make unmeritorious the motion for dismissal of the suit as against deceased Fernandez. It must
be mentioned, however, in fairness to Atty. Dizon, that he had as a matter of fact made preparation
for presenting himself before the Trial Court at the hearing of December 6, 1989, booking passage
on Philippine Airlines on December 5, 1989, and that the closure of airports and cancellation of
domestic flights on account of the aborted coup d'etat of December 1, 1989 — of which the Court
takes judicial notice — had indeed made impossible his intended appearance before the Trial Court
on the appointed day, December 6, 1989.

Not to be overlooked in this case is the nature of the complaint instituted by Jose Balde in the Trial
Court,   which upon sufficient reflection is disclosed as pertaining to the exclusive jurisdiction of the
38

Labor Arbiters of the Department of Labor and Employment and not the regular courts of justice.
That complaint alleged that Balde was "summarily ousted and dismissed" from his job as "Chief
Accountant and Credit & Collection Manager of Pier 8 Arrastre and Stevedoring Services . . . (a job
he had held since) 1973 and Chief Accountant of Western Pacific Corporation . . . (held since) 1974.
" It averred that despite his having worked efficiently and caused an increase in the profitability of the
companies, and allegedly on evidence known by defendant Cruz to be sham — that he (Balde) was
implicated in some anomaly in the procurement of supplies and spare parts — said defendant Cruz
unceremoniously relieved him of his duties and sealed and searched his personal belongings; that
on his (Balde's) insistence, an investigation was eventually conducted by defendant Melo, the Chief
Legal Counsel, ostensibly to ascertain the truth but which was actually nothing but an "inquisition"
characterized by "malice, bias, prejudice and partiality, " at which he was not accorded full
opportunity to defend himself; and that Fernandez, the highest corporate official in the corporations,
turned a deaf ear to Balde's pleas for a "speedy and impartial investigation." Upon these factual
assertions, the complaint prayed for the payment by the defendants to Balde of actual, moral, and
exemplary damages in the aggregate amount of P1,100,000.00, attorney's fees in the sum of
P100,000.00, and "such other reliefs equitable in the premises." It did not include reinstatement as a
specific relief.

The complaint, in other words, set forth claims for money arising from employer-employee relations.
Now, at the time that the complaint was filed, in 1975, exclusive jurisdiction over such "money claims
arising form employer-employee relations"   as well " all other cases or matters arising from
39

employer-employee relations,"   was vested by the law in the Labor Arbiters of the National Labor
40

Relations Commission.   That jurisdiction remained substantially unaffected by subsequent

41

amendments of the Labor Code up to 1989,   when Republic Act No. 6715 became effective, except
42

that for a time, about three (3) years, Labor Arbiters were divested of competence to "entertain
claims for moral or other forms of damages."  43

Under Republic Act No. 6715,   embodying the latest amendments to the Labor Code of the
44

Philippines, the following cases inter alia fall within the "original and exclusive jurisdiction" of Labor
Arbiters, to wit:

xxx xxx xxx

(2) Termination disputes;

(3) If accompanied with a claim for reinstatement, those cases that workers may file
involving wages, rates of pay, hours of work and other terms and conditions of
employment;

(4) Claims for actual, moral, exemplary and other forms of damages arising from
employer-employee relations;

xxx xxx xxx

(6) Except claims for employees compensation, social security, medicare and
maternity benefits, all other claims arising from employer-employee relations,
including those persons in domestic or household services, involving an amount not
exceeding five thousand pesos (P5,000.00) whether or not accompanied with a claim
for reinstatement.

The claims in question do not involve "wages, rates of pay hours of work and other terms and
conditions of employment." They do constitute, however, a "termination dispute," and are actually
"claims for actual, moral, exemplary and other forms of damages arising from employer-employee
relations," unaccompanied by a prayer for reinstatement. As such they are, as the law clearly says,
within the "original and exclusive jurisdiction" of Labor Arbiters. In other words, whether under the
law at present in force, or that at the time of the filing of the complaint, Jose Balde's cause falls
within the exclusive original jurisdiction of the Labor Arbiters and not of the Regional Trial Court
(formerly, Court of First Instance).

To be sure, this jurisdictional defect in the proceedings has not been explicity put at issue in the
appeal at bar, although references appear in the pleadings to the various motions filed by Fernandez
and his co-defendants with the Regional Trial Court to dismiss the action for want of jurisdiction over
the nature of the suit instituted by Jose Balde. This omission is of no moment. Excepted from the
general rule that in appellate proceedings in the Court of Appeals or this Court, " no error . . . will be
considered unless stated in the assignment of errors and properly argued in the brief" (or otherwise
raised as an issue), are (1) errors which "affect the jurisdiction over the subject matter," (2) "plain
errors," and (3) "clerical errors". 45

WHEREFORE, the Decision of the Court of Appeals promulgated on July 20, 1990 and its
Resolution dated November 21, 1990, in CA-G.R. SP No. 19602, as well as the Orders of the
Regional Trial Court (Branch 14) at Ligao, Albay in Civil Case No. 528-LV dated May 9, 1989,
October 17, 1989, October 25, 1989 and December 6, 1989 are REVERSED and SET ASIDE, and
said Civil Case No. 528-LV is ORDERED DISMISSED for lack of jurisdiction of the subject matter
and, as regards the deceased Jose P. Fernandez, on the additional ground set forth in Section 17,
Rule 3 of the Rules of Court, without pronouncement as to costs.

SO ORDERED.

Paras, Padilla and Regalado JJ., concur.

Nocon, J., is on leave.

Footnotes

1 Civil Case No. 528-LV of Branch 14 of the Court of First Instance (now Regional
Trial Court) at Ligao, Albay, commenced on November 14, 1975.

2 According to the Court of Appeals, "Jose P. Fernandez was chairman of the board
and president, while the other petitioners Redentor Melo and Eliodoro Cruz were
responsible officials of said firms." Rollo, p.31.

3 Original record, pp. 1-7.

4 Id., pp. 23-25.

5 Id., pp. 40-43.

6 Id., p. 55.

7 Id., pp. 64-69. N.B. The record discloses that petitioners reiterated their motion to
dismiss on the ground of lack of jurisdiction on several subsequent occasions in the
course of the proceedings in the Regional Trial Court; but all said motions were
turned down.

8 Sec. 21, Rule 3, Rules of Court.

9 Sec. 17, Rule 3.

10 Sec. 2(a), Rule 7.

11 Sec. 1, Rule 87.

12 Sec. 21, Rule 3, supra; Italics; SEEFootnotes 34 and 36, infra.

13 Sec. 1 whereof provides: "Immediately after granting letters testamentary or of
administration the court shall issue a notice requiring all persons having money
claims against the decedent to file them in the office of the clerk of said court"
(emphasis supplied). Section 5 of the same Rule decrees that all clams for money
against the decedent must be filed within the time limited in the Probate Courts
notice above mentioned, otherwise they are barred forever. Other provisions
prescribe the manner of giving notice of said claims, the trial of the claims, the
contents of the claim, executors or administrator's answer thereto, trial of the claims,
judgment thereon and appeal from said judgments.

14 Moran, Comments on the Rules, 1979 ed., Vol. 1, p. 219

15 SEE Section 17, Rule 3, infra

16 Feria, Civil Procedure, 1969, ed., pp. 163-164

17 Sec. 2(a), Rule 7

18 SeeFootnotes 5 and related text, supra

19 Original record, p. 449

20 Annexes H and H-1: Rollo, pp. 45-46

21 SEE footnote 24 and related text, infra

22 Rollo, p. 47

23 An order was issued by Judge Silerio on May 9, 1989 designating "the executor of
the estate of . . . Jose P. Fernandez, Atty. Arsenio Dizon . . . as substitute for Jose P.
Fernandez as party defendant."

24 SEE footnote 21 and related text, supra

25 Id., pp. 41-42. It is unclear (though inconsequential) if Judge Silerio was acting

temporarily in Branch 14.

26 Rollo, p. 43

27 Id., pp. 49-52

28 Id., p. 53

29 Id., p. 54

30 Id., pp. 55-56

31 Docketed as CA-G.R. SP No. 19602

32 Rollo, pp. 58-59

 33 The private respondent's memorandum was filed on May 29, 1991; the petitioners
on June 17, 1991.

34 SEE page 3 (last paragraph), supra

35 Sec. 21, Rule 3, supra; Emphasis supplied

36 Regala v. C.A., 183 SCRA 595, citing Malolos v. Asia Pacific Finance Corp., 147
SCRA 61, in turn citing Villegas and Santos v. Zapanta and Zorilla, 104 Phil. 973, Dy
v. Enage, 70 SCRA 117, Pabico v. Jaranilla, 60 Phil. 247, 251

37 Malolos v. Asia Pacific Finance Corp., 147 SCRA 61, supra; Aquino v. Sison, 179
SCRA 648; Marcelo v. de Guzman, 114 SCRA 648

38 Original record, pp. 1-7

39 Including "claims involving non-payment or under-payment of wages, overtime

compensations, separation pay, maternity leave." but excluding "claims for
workmen's compensation, social security and medicare benefits . . ."

40 ". . . unless expressly excluded . . ."

41 ART. 217 of PD 442, the Labor Code of the Philippines.

42 PD 570-A, promulgated on Nov. 1, 1974; PD 850, promulgated on Dec. 16, 1975;

PD 1376, eff. May 1, 1978; PD 1691, eff. May 1, 1980; BP 130, promulgated on Aug.
21, 1981; BP 227, approved on June 1, 1982

43 PD 1367, eff. May 1, 1978 until May 1, 1980 when PD 1691 eliminated the
interdiction relative to "claims for moral or other forms of damages"

44 Eff., March 2, 1989

45 Sec. 7, Rule 51 reads as follows: Questions that may be decided. — No error

which does not affect the jurisdiction over the subject matter will be considered
unless stated in the assignment of errors and properly argued in the brief, save as
the court, at its option, may notice plain errors not specified, and also clerical errors.

[G.R. No. 162788. July 28, 2005]

Spouses JULITA DE LA CRUZ and FELIPE DE LA CRUZ, petitioners,

vs. PEDRO JOAQUIN, respondent.

DECISION
PANGANIBAN, J.:
 The Rules require the legal representatives of a dead litigant to be substituted as
parties to a litigation. This requirement is necessitated by due process. Thus, when the
rights of the legal representatives of a decedent are actually recognized and protected,
noncompliance or belated formal compliance with the Rules cannot affect the validity of
the promulgated decision. After all, due process had thereby been satisfied.

The Case

Before us is a Petition for Review [1] under Rule 45 of the Rules of Court, assailing
the August 26, 2003 Decision [2] and the March 9, 2004 Resolution [3] of the Court of
Appeals (CA) in CA-GR CV No. 34702. The challenged Decision disposed as follows:

WHEREFORE, the foregoing considered, the appeal is DISMISSED and the assailed
decision accordingly AFFIRMED in toto. No costs.[4]

On the other hand, the trial courts affirmed Decision disposed as follows:

WHEREFORE, judgment is hereby rendered:

a) declaring the Deed of Absolute Sale (Exh. D) and Kasunduan (Exhibit

B), to be a sale with right of repurchase;

b) ordering the plaintiff to pay the defendants the sum of P9,000.00 by

way of repurchasing the land in question;

c) ordering the defendants to execute a deed of reconveyance of said land

in favor of the plaintiff after the latter has paid them the amount
of P9,000.00 to repurchase the land in question;

d) ordering the defendants to yield possession of the subject land to the

plaintiff after the latter has paid them the amount of P9,000.00 to
repurchase the property from them; and

e) ordering the defendants to pay the plaintiff the amount of P10,000.00

as actual and compensatory damages; the amount of P5,000[.00] as
exemplary damages; the amount of P5,000.00 as expenses of
litigation and the amount of P5,000.00 by way of attorneys fees.[5]

The Facts
 The case originated from a Complaint for the recovery of possession and
ownership, the cancellation of title, and damages, filed by Pedro Joaquin against
petitioners in the Regional Trial Court of Baloc, Sto. Domingo, Nueva Ecija.
[6]
Respondent alleged that he had obtained a loan from them in the amount of P9,000
on June 29, 1974, payable after five (5) years; that is, on June 29, 1979. To secure the
payment of the obligation, he supposedly executed a Deed of Sale in favor of
petitioners. The Deed was for a parcel of land in Pinagpanaan, Talavera, Nueva Ecija,
covered by TCT No. T-111802. The parties also executed another document
entitled Kasunduan. [7]
Respondent claimed that the Kasunduan showed the Deed of Sale to be actually an
equitable mortgage.[8] Spouses De la Cruz contended that this document was merely an
accommodation to allow the repurchase of the property until June 29, 1979, a right that
he failed to exercise.[9]
On April 23, 1990, the RTC issued a Decision in his favor. The trial court declared
that the parties had entered into a sale with a right of repurchase. [10] It further held that
respondent had made a valid tender of payment on two separate occasions to exercise
his right of repurchase.[11] Accordingly, petitioners were required to reconvey the
property upon his payment.[12]

Ruling of the Court of Appeals

Sustaining the trial court, the CA noted that petitioners had given respondent the
right to repurchase the property within five (5) years from the date of the sale or until
June 29, 1979. Accordingly, the parties executed the Kasunduan to express the terms
and conditions of their actual agreement. [13] The appellate court also found no reason to
overturn the finding that respondent had validly exercised his right to repurchase the
land.[14]
In the March 9, 2004 Resolution, the CA denied reconsideration and ordered a
substitution by legal representatives, in view of respondents death on December 24,
1988.[15]
Hence, this Petition.[16]

The Issues

Petitioners assign the following errors for our consideration:

I. Public Respondent Twelfth Division of the Honorable Court of Appeals seriously

erred in dismissing the appeal and affirming in toto the Decision of the trial court in
Civil Case No. SD-838;
II. Public Respondent Twelfth Division of the Honorable Court of Appeals likewise
erred in denying [petitioners] Motion for Reconsideration given the facts and the law
therein presented.[17]

Succinctly, the issues are whether the trial court lost jurisdiction over the case upon
the death of Pedro Joaquin, and whether respondent was guilty of forum shopping. [18]

The Courts Ruling

The Petition has no merit.

First Issue:
Jurisdiction

Petitioners assert that the RTCs Decision was invalid for lack of jurisdiction. [19] They
claim that respondent died during the pendency of the case. There being no substitution
by the heirs, the trial court allegedly lacked jurisdiction over the litigation. [20]

Rule on Substitution

When a party to a pending action dies and the claim is not extinguished, [21] the
Rules of Court require a substitution of the deceased. The procedure is specifically
governed by Section 16 of Rule 3, which reads thus:

Section 16. Death of a 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.

The rule on the substitution of parties was crafted to protect every partys right to
due process.[22] The estate of the deceased party will continue to be properly
represented in the suit through the duly appointed legal representative. [23]Moreover, no
adjudication can be made against the successor of the deceased if the fundamental
right to a day in court is denied.[24]
The Court has nullified not only trial proceedings conducted without the appearance
of the legal representatives of the deceased, but also the resulting judgments. [25] In
those instances, the courts acquired no jurisdiction over the persons of the legal
representatives or the heirs upon whom no judgment was binding. [26]
This general rule notwithstanding, a formal substitution by heirs is not necessary
when they themselves voluntarily appear, participate in the case, and present evidence
in defense of the deceased.[27] These actions negate any claim that the right to due
process was violated.
The Court is not unaware of Chittick v. Court of Appeals,[28] in which the failure of
the heirs to substitute for the original plaintiff upon her death led to the nullification of the
trial courts Decision. The latter had sought to recover support in arrears and her share
in the conjugal partnership. The children who allegedly substituted for her refused to
continue the case against their father and vehemently objected to their inclusion as
parties.[29] Moreover, because he died during the pendency of the case, they were
bound to substitute for the defendant also. The substitution effectively merged the
persons of the plaintiff and the defendant and thus extinguished the obligation being
sued upon.[30]
Clearly, the present case is not similar, much less identical, to the factual milieu
of Chittick.
Strictly speaking, the rule on the substitution by heirs is not a matter of jurisdiction,
but a requirement of due process. Thus, when due process is not violated, as when the
right of the representative or heir is recognized and protected, noncompliance or
belated formal compliance with the Rules cannot affect the validity of a promulgated
decision.[31] Mere failure to substitute for a deceased plaintiff is not a sufficient ground to
nullify a trial courts decision. The alleging party must prove that there was an
undeniable violation of due process.

Substitution in
the Instant Case

The records of the present case contain a Motion for Substitution of Party Plaintiff
dated February 15, 2002, filed before the CA. The prayer states as follows:
WHEREFORE, it is respectfully prayed that the Heirs of the deceased plaintiff-
appellee as represented by his daughter Lourdes dela Cruz be substituted as party-
plaintiff for the said Pedro Joaquin.

It is further prayed that henceforth the undersigned counsel [32] for the heirs of Pedro
Joaquin be furnished with copies of notices, orders, resolutions and other pleadings at
its address below.

Evidently, the heirs of Pedro Joaquin voluntary appeared and participated in the
case. We stress that the appellate court had ordered [33] his legal representatives to
appear and substitute for him. The substitution even on appeal had been ordered
correctly. In all proceedings, the legal representatives must appear to protect the
interests of the deceased.[34] After the rendition of judgment, further proceedings may be
held, such as a motion for reconsideration or a new trial, an appeal, or an execution. [35]
Considering the foregoing circumstances, the Motion for Substitution may be
deemed to have been granted; and the heirs, to have substituted for the deceased,
Pedro Joaquin. There being no violation of due process, the issue of substitution cannot
be upheld as a ground to nullify the trial courts Decision.

Second Issue:
Forum Shopping

Petitioners also claim that respondents were guilty of forum shopping, a fact that
should have compelled the trial court to dismiss the Complaint. [36] They claim that prior
to the commencement of the present suit on July 7, 1981, respondent had filed a civil
case against petitioners on June 25, 1979. Docketed as Civil Case No. SD-742 for the
recovery of possession and for damages, it was allegedly dismissed by the Court of
First Instance of Nueva Ecija for lack of interest to prosecute.

Forum Shopping Defined

Forum shopping is the institution of two or more actions or proceedings involving

the same parties for the same cause of action, either simultaneously or successively, on
the supposition that one or the other court would make a favorable disposition. [37] Forum
shopping may be resorted to by a party against whom an adverse judgment or order
has been issued in one forum, in an attempt to seek a favorable opinion in another,
other than by an appeal or a special civil action for certiorari.[38]
Forum shopping trifles with the courts, abuses their processes, degrades the
administration of justice, and congests court dockets. [39] Willful and deliberate violation
of the rule against it is a ground for the summary dismissal of the case; it may also
constitute direct contempt of court.[40]
 The test for determining the existence of forum shopping is whether the elements
of litis pendentia are present, or whether a final judgment in one case amounts to res
judicata in another.[41] We note, however, petitioners claim that the subject matter of the
present case has already been litigated and decided. Therefore, the applicable doctrine
is res judicata.[42]

Applicability of Res Judicata

Under res judicata, a final judgment or decree on the merits by a court of

competent jurisdiction is conclusive of the rights of the parties or their privies, in all later
suits and on all points and matters determined in the previous suit. [43] The term literally
means a matter adjudged, judicially acted upon, or settled by judgment. [44] The principle
bars a subsequent suit involving the same parties, subject matter, and cause of action.
Public policy requires that controversies must be settled with finality at a given point in
time.
The elements of res judicata are as follows: (1) the former judgment or order must
be final; (2) it must have been rendered on the merits of the controversy; (3) the court
that rendered it must have had jurisdiction over the subject matter and the parties; and
(4) there must have been -- between the first and the second actions -- an identity of
parties, subject matter and cause of action.[45]

Failure to Support Allegation

The onus of proving allegations rests upon the party raising them. [46] As to the
matter of forum shopping and res judicata, petitioners have failed to provide this Court
with relevant and clear specifications that would show the presence of an identity of
parties, subject matter, and cause of action between the present and the earlier suits.
They have also failed to show whether the other case was decided on the merits.
Instead, they have made only bare assertions involving its existence without reference
to its facts. In other words, they have alleged conclusions of law without stating any
factual or legal basis. Mere mention of other civil cases without showing the identity of
rights asserted and reliefs sought is not enough basis to claim that respondent is guilty
of forum shopping, or that res judicata exists.[47]
WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution
are AFFIRMED. Costs against petitioners.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.

[1]
 Rollo, pp. 3-14.
[2]
 Id., pp. 19-27. Twelfth Division. Penned by Justice Josefina Guevara-Salonga, with the concurrence of
Justices Romeo A. Brawner (Division chair and now CA presiding justice) and Arturo D. Brion
(member).
[3]
 Id., pp. 28-29.
[4]
 CA Decision, p. 8; rollo, p. 26.
[5]
 Rollo, pp. 19-20.
[6]
 Assailed Decision, p. 2; rollo, p. 20.
[7]
 Ibid.
[8]
 Ibid.
[9]
 Id., p. 3; rollo, p. 21.
[10]
 Id., p. 1; rollo, p. 20.
[11]
 Id., p. 7; rollo, p. 25.
[12]
 Id., p. 1; rollo, p. 20.
[13]
 Id., p. 7; rollo, p. 25.
[14]
 Ibid.
[15]
 Assailed Resolution, p. 2; rollo, p. 29.
[16]
 The case was deemed submitted for decision on December 10, 2004, upon this Courts receipt of the
respective Memoranda of petitioners and respondent. Petitioners Memorandum was signed by
Atty. George Erwin M. Garcia; respondents Memorandum, by Attys. Nicolas P. Lapea Jr. and
Gilbert F. Ordoa.
[17]
 Petition, pp. 6-7; rollo, pp. 8-9. Petitioners erred in phrasing the assignment of errors, since the CA
should not be impleaded as a respondent in a Petition for Review on Certiorari. 4, Rule 45, Rules
of Court.
[18]
 Petition, p. 5; rollo, p. 7.
This Court will not address the allegations that were not raised in the Petition, but only in petitioners
Memorandum. In the Courts Resolution dated October 13, 2004, the parties were directed to
submit their respective Memoranda without raising new issues. In their Memorandum, petitioners
added paragraphs alleging that respondent had failed to make a valid tender of payment and
abandoned their right to the repurchase agreement. These are factual issues that are not proper
in a Petition for Review on Certiorari. (1, Rule 45, Rules of Court) Moreover, it would be against
the fundamental right to due process if these allegations are considered without hearing private
respondent and the CA on this matter. A Petition for review essentially charges the lower court
with reversible errors. How can there be any such mistakes with respect to a matter not raised
and taken up in the assailed Decision?
[19]
 Petition, p. 8; rollo, p. 10.
[20]
 Ibid.
[21]
 Actions that survive against the decedents representatives are as follows: (1) actions to recover real or
personal property or an interest thereon, (2) actions to enforce liens thereon, (3) actions to
recover damages for an injury to a person or a property. 1, Rule 87 of the Rules of Court. See
also Board of Liquidators v. Heirs of M. Kalaw et al.,  127 Phil. 399, 414, August 14, 1967.
[22]
 Riviera Filipina Inc. v. Court of Appeals, 430 Phil. 8, 31, April 5, 2002; Torres Jr. v. Court of
Appeals,  344 Phil. 348, 366, September 5, 1997; Vda. de Salazar v. Court of Appeals, 320 Phil.
373, 377, November 23, 1995.
[23]
 Heirs of Hinog v. Melicor, GR No. 140954, April 12, 2005; Torres Jr. v. Court of Appeals, ibid.
[24]
 Vda. de Salazar v. Court of Appeals, supra, p. 377; De Mesa et al. v. Mencias et al.,  124 Phil. 1187,
1195, October 29, 1966.
[25]
 Brioso v. Rili-Mariano, 444 Phil. 625, 636, January 31, 2003; Lawas v. Court of Appeals, 230 Phil. 261,
268, December 12, 1986; The Heirs of the Late F. Nuguid Vda. de Haberer v. Court of
Appeals,  192 Phil. 61, 70, May 26, 1981; Vda. de Dela Cruz v. Court of Appeals,  88 SCRA 695,
701, February 28, 1979; Ferreria et al. v. Vda. de Gonzales et al.,  104 Phil. 143, 149, July 17,
1958.
[26]
 Ibid. See also Heirs of Hinog, supra;  Vda. de Salazar v. Court of Appeals, supra.
[27]
 Brioso v. Rili-Mariano, supra, p. 637; Vda. de Salazar v. Court of Appeals, supra, p. 377.
[28]
 166 SCRA 219, October 4, 1988.
[29]
 Id., p. 226.
[30]
 Id., p. 227.
[31]
 Brioso v. Rili-Mariano, ibid.; Torres Jr. v. Court of Appeals,  supra; Vda. de Salazar v. Court of Appeals,
id., p. 380.
[32]
 Law Firm of Lapea & Associates, Rm. 208 Golden Crescent Mansion, 90 Alvero St., Loyola Heights,
Quezon City, signed by Nicolas P. Lapea Jr., the same counsel in the present case appearing for
respondent.
[33]
 March 9, 2004 Resolution, p. 2; rollo, p. 29.
[34]
 Vda. de Dela Cruz v. Court of Appeals,  supra, p. 702.
[35]
 Moran, Comments on the Rules of Court (1995), Vol. I, p. 286.
[36]
 Petitioners Memorandum, p. 5; rollo, p. 75.
[37]
 R  &  E Transport Inc. v. Latag, 422 SCRA, 698, 710, February 13, 2004; Nordic Asia Limited v. Court
of Appeals, 403 SCRA 390, 401, June 10, 2003; New Sampaguita Builders Constructions, Inc. v.
The Estate of Canoso, 397 SCRA 456, 462, February 14, 2003.
[38]
 R  &  E Transport Inc. v. Latag, ibid.; Bangko Silangan Development Bank v. Court of Appeals, 412
Phil. 757, 770, June 29, 2001.
[39]
 Santos v. Commission on Elections, 447 Phil. 760, 771, March 26, 2003; Argel v. Court of
Appeals,  374 Phil. 867, 876, October 12, 1999.
[40]
 5, Rule 7, Rules of Court. See also Top Rate Construction  &  General Services Inc. v. Paxton
Development Corporation, 410 SCRA 604, 620, September 11, 2003.
[41]
 Saura v. Saura Jr.,  372 Phil. 337, 349, September 1, 1999; Employees Compensation Commission v.
Court of Appeals,  327 Phil. 510, 516, June 28, 1996; First Philippine International Bank v. Court
of Appeals,  322 Phil. 280, 307, January 24, 1996.
[42]
 Litis pendentia refers to the pendency of another action between the same parties involving the same
cause of action. Compania General de Tobacos de Filipinas v. Court of Appeals, 422 Phil. 405,
423, November 29, 2001.
This ground is also referred to as lis pendens or auter action pendant. Buan v.
Lopez,  229 Phil. 65, 68, October 13, 1986.
To be more accurate, petitioners should have alleged, not simply the rule on forum
shopping, but also res judicata  as a ground to dismiss respondents Complaint. See Employees
Compensation Commission v. Court of Appeals,  supra, p. 518.
[43]
 Taganas v. Emuslan, 410 SCRA 237, 241, September 2, 2003; Bardillon v. Barangay Masili of
Calamba, Laguna, 402 SCRA 440, 446, April 30, 2003; Oropeza Marketing Corp. v. Allied
Banking Corp., 441 Phil. 551, 563, December 3, 2002.
[44]
 Bardillon v. Barangay Masili of Calamba, Laguna, ibid.; Oropeza Marketing Corp. v. Allied Banking
Corp., ibid.; Mirpuri v. Court of Appeals, 376 Phil. 628, 649, November 19, 1999.
[45]
 Taganas v. Emuslan,  supra; Bardillon v. Barangay Masili of Calamba, Laguna, ibid.; Mirpuri v. Court of
Appeals, id., p. 650; Deang v. Intermediate Appellate Court,  154 SCRA 250, 254, September 24,
1987.
[46]
 1, Rule 131, Rules of Court.
[47]
 See also Bank of America NT&SA v. Court of Appeals, 448 Phil. 181, 198, March 31, 2003.

MEMORACION Z. CRUZ,   G.R. No. 173292

represented by EDGARDO Z.
CRUZ,
Petitioner,   Present:
     
  CARPIO, J.,
  Chairperson,NACHURA,
  BERSAMIN,*
- versus - ABAD, and MENDOZA, JJ.
 
     
OSWALDO Z. CRUZ, Promulgated:
Respondent.   September 1, 2010
x-----------------------------------------------------------------------------------------x
 
 
DECISION
 
 
CARPIO, J.:
 
 
The Case
 
This is a petition for review[1] of the Court of Appeals (CA) Decision[2] dated
20 December 2005 and Resolution dated 21 June 2006 in CA-G.R. CV No.
80355. The CA affirmed with modification the Order[3] dated 2 June 1997 of the
Regional Trial Court of the National Capital Judicial Region, Branch 30, Manila
(RTC).
 
 The Antecedent Facts
 
The undisputed facts, as summarized by the Court of Appeals, are as follows:
 
On October 18, 1993, Memoracion Z. Cruz filed with the Regional Trial Court
in Manila a Complaint against her son, defendant-appellee Oswaldo Z. Cruz, for
Annulment of Sale, Reconveyance and Damages.
 
Memoracion claimed that during her union with her common-law husband
(deceased) Architect Guido M. Cruz, she acquired a parcel of land located at
Tabora corner Limay Streets, Bo. Obrero, Tondo Manila; that the said lot was
registered in her name under TCT No. 63467 at the Register of Deeds of Manila;
that sometime in July 1992, she discovered that the title to the said property was
transferred by appellee and the latters wife in their names in August 1991 under
TCT No. 0-199377 by virtue of a Deed of Sale dated February 12, 1973; that the
said deed was executed through fraud, forgery, misrepresentation and simulation,
hence, null and void; that she, with the help of her husbands relatives, asked
appellee to settle the problem; that despite repeated pleas and demands, appellee
refused to reconvey to her the said property; that she filed a complaint against
appellee before the office of the Barangay having jurisdiction over the subject
property; and that since the matter was unsettled, the barangay x x x issued x x x a
certification to file [an] action in court, now the subject of controversy.
 
After Memoracion x x x finished presenting her evidence in chief, she died on
October 30, 1996. Through a Manifestation, Memoracions counsel, Atty. Roberto
T. Neri, notified the trial court on January 13, 1997 of the fact of such death,
evidenced by a certificate thereof.
 
For his part, appellee filed a Motion to Dismiss on the grounds that (1) the
plaintiffs reconveyance action is a personal action which does not survive a partys
death, pursuant to Section 21, Rule 3 of the Revised Rules of Court, and (2) to
allow the case to continue would result in legal absurdity whereby one heir is
representing the defendant [and is a] co-plaintiff in this case.
 
On June 2, 1997, the trial court issued the appealed Order in a disposition that
reads:
Wherefore, in view of the foregoing, this case is ordered dismissed
without prejudice to the prosecution thereof in the proper estate
proceedings.
 
 
 
 
 
 On October 17, 1997, Memoracions son-heir, Edgardo Z. Cruz, manifested to the
trial court that he is retaining the services of Atty. Neri for the
plaintiff. Simultaneously, Atty. Neri filed a Motion for Reconsideration of the
June 2, 1997 Order. However, the said motion was subsequently denied by Acting
Presiding Judge Cielito N. Mindaro-Grulla [on October 31, 2000].
 
Thereafter, Edgardo Cruz, as an heir of Memoracion Cruz, filed a notice of appeal
in behalf of the deceased plaintiff, signed by Atty. Neri, but the appeal was
dismissed by Judge Mindaro-Grulla, [stating that] the proper remedy being
certiorari under Rule 65 of the Rules of Court. On appellants motion for
reconsideration, Judge Lucia Pena Purugganan granted the same, stating that the
remedy under the circumstances is ordinary appeal.[4]
 
 
The Court of Appeals Ruling
 
Petitioner Memoracion Z. Cruz, represented by Edgardo Z. Cruz, filed with the
Court of Appeals a Petition for Review under Rule 45 of the 1997 Revised Rules
of Civil Procedure. On 20 December 2005, the CA rendered judgment affirming
with modification the RTC decision. We quote the dispositive portion of the CAs
decision below.
 
WHEREFORE, the appealed Order
is AFFIRMED, with MODIFICATION. The trial courts directive as to the
prosecution of the action in the proper estate proceedings is DELETED.
 
SO ORDERED.[5]
 
 

Petitioners Motion for Reconsideration was denied by the CA in its Resolution of

21 June 2006.[6]
 
Hence, this appeal.
 
 
 
The Issues
 
The issues for resolution in this case are:
 1.     Whether the Court of Appeals erred in ruling that Memoracion Z.
Cruzs Petition for Annulment of Deed of Sale, Reconveyance and
Damages is a purely personal action which did not survive her death;
and
 
2.     Whether the Court of Appeals erred in affirming with modification the
RTC Order dismissing the Petition for Annulment of Deed of Sale,
Reconveyance and Damages.
 
 
 
The Courts Ruling
 
We find the appeal meritorious.
The Petition for Annulment of Sale, Reconveyance
and Damages survived the death of petitioner
 
 
The criterion for determining whether an action survives the death of a petitioner
was elucidated in Bonilla v. Barcena,[7] to wit:
 
The question as to whether an action survives or not depends on the nature
of the action and the damage sued for. In the causes of action which survive, the
wrong complained [of] affects primarily and principally property and property
rights, the injuries to the person being merely incidental, while in the causes of
action which do not survive, the injury complained of is to the person, the
property and rights of property affected being incidental.[8]
 
 
If the case affects primarily and principally property and property rights, then it
survives the death of the plaintiff or petitioner. In Sumaljag v. Literato,[9] we held
that a Petition for Declaration of Nullity of Deed of Sale of Real Property is one
relating to property and property rights, and therefore, survives the death of the
petitioner.Accordingly, the instant case for annulment of sale of real property
merits survival despite the death of petitioner Memoracion Z. Cruz.
 
The CA erred in affirming RTCs dismissal of the
Petition for Annulment of Deed of Sale,
 Reconveyance and Damages
 
 
When a party dies during the pendency of a case, Section 16, Rule 3 of the 1997
Revised Rules of Civil Procedure necessarily applies, viz:
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.
 
 
 
The foregoing section is a revision of Section 17, Rule 3 of the old Rules of Court:
SEC. 17. Death of party. - After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and to be substituted for the deceased, within a period of thirty
(30) days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the deceased within a time to be specified by
the court, and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such appointment,
if defrayed by the opposing party, may be recovered as costs. 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 guardian ad
litem for the minor heirs.

 
If the action survives despite death of a party, it is the duty of the deceaseds
counsel to inform the court of such death, and to give the names and addresses of
the deceaseds legal representatives. The deceased may be substituted by his heirs
in the pending action. As explained in Bonilla:
 
x x x Article 777 of the Civil Code provides that the rights to the succession are
transmitted from the moment of the death of the decedent. From the moment of the
death of the decedent, the heirs become the absolute owners of his property, subject
to the rights and obligations of the decedent, and they cannot be deprived of their
rights thereto except by the methods provided for by law. The moment of death is the
determining factor when the heirs acquire a definite right to the inheritance whether
such right be pure or contingent. The right of the heirs to the property of the deceased
vests in them even before judicial declaration of their being heirs in the testate or
intestate proceedings. When [plaintiff], therefore, died[,] her claim or right to the
parcels of land x x x was not extinguished by her death but was transmitted to her
heirs upon her death. Her heirs have thus acquired interest in the properties in
litigation and became parties in interest in the case. There is, therefore, no reason for
the respondent Court not to allow their substitution as parties in interest for the
deceased plaintiff.[10]
 
If no legal representative is named by the counsel of the deceased, or the legal
representative fails to appear within a specified period, it is the duty of the court
where the case is pending to order the opposing party to procure the appointment
of an executor or administrator for the estate of the deceased. The reason for this
rule is to protect all concerned who may be affected by the intervening death,
particularly the deceased and his estate.[11]
In the instant case, petitioner (plaintiff) Memoracion Z. Cruz died on 30 October
1996. Her counsel, Atty. Roberto T. Neri, notified the trial court of such death on
13 January 1997, through a Manifestation stating thus:
 
COMES NOW the undersigned counsel and to this Honorable Court respectfully
gives notice that the plaintiff, Memoracion Z. Cruz, died on October 30, 1996, in
Manila as shown by a Certificate of Death, a certified true copy of which is
hereto attached as Annex A hereof.
 
The legal representative of the deceased plaintiff is her son EDGARDO CRUZ
whose address is at No. 3231-E Tabora St., Bo. Obrero, Tondo, Manila.
 
x x x x[12]
 
 
On 24 January 1997, respondent (defendant) Oswaldo Z. Cruz moved to dismiss
the case alleging that it did not survive Memoracions death. The RTC granted the
motion to dismiss in the assailed Order dated 2 June 1997.
 
We rule that it was error for the RTC to dismiss the case. As mentioned earlier, the
petition for annulment of deed of sale involves property and property rights, and
hence, survives the death of petitioner Memoracion. The RTC was informed, albeit
belatedly,[13] of the death of Memoracion, and was supplied with the name and
address of her legal representative, Edgardo Cruz. What the RTC could have done
was to require Edgardo Cruz to appear in court and substitute Memoracion as party
to the pending case, pursuant to Section 16, Rule 3 of the 1997 Revised Rules of
Civil Procedure, and established jurisprudence.
 
We note that on 17 October 1997, Edgardo Cruz filed with the RTC a
Manifestation, stating that he is retaining the services of Atty. Roberto T. Neri. We
quote:[14]
 
UNDERSIGNED HEIR of the late Memoracion Z. Cruz respectfully manifests
that he is retaining the services of ATTY.ROBERTO T. NERI as counsel for the
plaintiff.
 
(Sgd.) EDGARDO Z. CRUZ
Plaintiff
 
Consistent with our ruling in Heirs of Haberer v. Court of Appeals,[15] we consider
such Manifestation, signed by Memoracions heir, Edgardo Cruz, and retaining
Atty. Neris services as counsel, a formal substitution of deceased Memoracion by
her heir, Edgardo Cruz. It also needs mention that Oswaldo Cruz, although also an
heir of Memoracion, should be excluded as a legal representative in the case for
being an adverse party therein.[16]
 
WHEREFORE, we GRANT the petition. We REVERSE the Court of Appeals
Decision dated 20 December 2005 and Resolution dated 21 June 2006 in CA-G.R.
CV No. 80355. We REMAND this case to the Regional Trial Court of the
National Capital Judicial Region, Branch 30, Manila, for further proceedings.
 
SO ORDERED.
 
 
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
 
 
 
 
ANTONIO EDUARDO B. NACHURA
Associate Justice
 
 
 
 
LUCAS P. BERSAMIN ROBERTO A. ABAD
Associate Justice Associate Justice
 
 
 
 
JOSE C. MENDOZA
Associate Justice
 
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
 
 
 
ANTONIO T. CARPIO
Associate Justice
Chairperson
 
 
 
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairpersons Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
 
 
 
RENATO C. CORONA
Chief Justice
 
 
 
 
 
 

*
 Designated additional member per Special Order No. 882 dated 31 August 2010.
[1]
 Under Rule 45 of the 1997 Revised Rules of Civil Procedure.
[2]
 Penned by Associate Justice Magdangal M. De Leon, with Associate Justices Portia Alio- Hormachuelos and
Mariano Del Castillo (now a member of the Supreme Court), concurring.
[3]
 Issued by RTC Judge Senecio O. Ortile.
[4]
 Rollo, pp. 32-33. Citations omitted.
[5]
 Id. at 39.
[6]
 Id. at 43-44.
[7]
 163 Phil. 516 (1976). See also Torres v. Rodellas, G.R. No. 177836, 4 September 2009, 598 SCRA 390.
[8]
 Id. at 521, citing Iron Gate Bank v. Brady, 184 U.S. 665, 22 SCT 529, 46 L.ed. 739 and Wenber v. St. Paul City
Co., 97 Feb. 140 R. 39 C.C.A. 79.
[9]
 G.R. No. 149787, 18 June 2008, 555 SCRA 53, 60.
[10]
 Bonilla v. Barcena, supra note 7 at 520-521. Citations omitted.
[11]
 Sumaljag v. Literato, supra note 9 at 62.
[12]
 Records, pp. 172-173.
[13]
 The counsels late filing of the Notice of Death of Memoracion Z. Cruz was not questioned by defendant Oswaldo
Cruz.
[14]
 Records, p. 196.
[15]
 192 Phil. 62, 73 (1981).
[16]
 In Sumaljag v. Literato, supra note 9, the deceaseds sister, although a legal heir, was excluded as a legal
representative for being one of the adverse parties in the pending cases.

[G.R. No. 116909. February 25, 1999]

VIVENCIO M. RUIZ, EMILIO D. CASTELLANES and BLAS A.

MIRANDA, petitioners, vs. THE COURT OF APPEALS, and PEDRO
V. GARCIA, as represented by his legal representative, MA. LUISA G.
MAGPAYO, respondents.

DECISION
PURISIMA, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules
of Court seeking review of the 26 November 1993 Decision [1] and the 02 September 1994
Resolution[2] of the Court of Appeals[3] in CA-G.R. CV No. 34360.
The late Pedro V. Garcia was a businessman with substantial shareholdings in V. C. Ponce
Co., Inc. consisting of shares of stock and real properties. Sometime in 1977, an internal conflict
developed and besieged the company, engendering suits between respondent Garcia and V.C.
Ponce Co., Inc. over the formers funds and assets.
On March 10, 1977, respondent Pedro V. Garcia engaged the legal services of herein
petitioners, Attys. Vivencio M. Ruiz and Emilio D. Castellanes, and an Agreement denominated
as a Contract of Retainership[4] was executed by them, the pertinent portion of which, reads:
 CONTRACT OF RETAINERSHIP

I, PEDRO V. GARCIA, of legal age, amrried to Remedios T. Garcia and residing at

#100 Adelita Chioco St., Phase II, B.F. Homes, Paraaque, Metro Manila, do hereby
declare and certify that I have engaged and retained, as I do hereby retain and
engage, the services of Atty. V. M. RUIZ and his associate, E.D. CASTELLANES as
my counsel to handle, protect and prosecute all cases involving my rights and
interests and that of my family in the 370,000 shares of stocks which we own in the V.
C. Ponce Co., Inc., especially the case I have filed against Vicente C. Ponce before
the Securities and Exchange Commission (SEC Case No. 001451, Series of 1977), all
other related and allied cases, both civil and criminal, which may be assigned to and
accepted by him or which have been specifically endorsed to him and now pending
before the courts and other venues x x x

xxx xxx xxx

and IN CONSIDERATION of the services of the said attorney, I do hereby assign and
transfer to him, his heirs, executors and assigns, forever, fifteen (15%) percent of all
my/our shares of stock aforesaid, fully paid, evidenced by Certificate of Stock Nos.
003, 010, and 004, issued by the Corporation in our respective names x x x and of all
the benefits and dividends due but not declared and paid on said shares from 1963 up
to the execution of this retainership, including any/all monies and assets due us and
other recoverables, for me andmy family, and, in addition, I further agree to pay the
said attorney a yearly retainership fee of P24,000.00 per annum in twelve (12) equal
monthly payments of P2,000.00 each, payable on or before the 5th of every ensuing
month starting April 1977.

Accordingly, the petitioners handled Civil Case Nos. 14297 and 17713 which were
consolidated before Branch 13 of the Court of First Instance in Pasig, Rizal. Civil Case No. Pq-
6596 was before Branch 29, of the Court of First Instance in Pasay City.
On July 22, 1982, Pablo V. Garcia unilaterally terminated the said Contract of Retainership
on the alleged ground that the petitioners, his lawyers, failed to settle amicably
his (Garcia)  differences with V. C. Ponce Co., Inc. Petitioners were paid attorneys fees up to the
month of July, 1982. Thereafter, the petitioners Ruiz and Castellanes manifested their
withdrawal as counsel for Pedro V. Garcia and moved that their attorneys lien be put on record,
[5]
 in the cases involved. Such motion was granted by the trial court.
On February 9, 1984, petitioners Ruiz and Castellanes brought their action For Collection of
Sum of Money and for Specific Performance, docketed as Civil Case No. 6465 before Branch
140, of the Regional Trial Court in Makati City.
On September 27, 1990, while the said case was pending before the said lower court of
origin, Pedro V. Garcia died. And so, on October 4, 1990, after notifying the trial court of the
demise of their client, counsel moved for the dismissal of the case, invoking Section 21, Rule 3
of the Rules of Court.[6]
On February 8, 1991, the lower court issued an Order dismissing petitioners complaint,
stating that:

x x x the Court is of the opinion and so holds that the present action is one for
recovery of money or interest in whatever recovery the deceased defendant may
obtain in cases for which the plaintiffs services were contracted; and that plaintiffs
client, the herein defendant, died before final judgment in this case, hence, Section 21
of Rule 3 of the Rules of Court applies .

On appeal, the Court of Appeals handed down its challenged Decision, disposing, thus:

WHEREFORE, the Order appealed from is herby MODIFIED to read, as follows:

In view of the foregoing, the motion to dismiss and the supplemental motion are
hereby granted. Civil Case No. 6364 is hereby DISMISSED in accordance with
Section 21, Rule 3 of the Rules of Court, and the notice of lis pendens annotated
in T.C.T. No. 64567 is hereby ordered cancelled.

No pronouncement as to cost.

With the denial of their motion for reconsideration, petitioners found their way to this Court
via the present Petition; theorizing, that:
I.

RESPONDENT COURT ERRED IN FINDING THAT THE INSTANT CASE FOR

RECOVERY OF ATTORNEYS PROFESSIONAL FEES WHICH HAD NOT BEEN
ADJUDICATED BY FINAL PRONOUNCEMENT IS ABATED BY THE DEATH
OF THE DEFENDANT-CLIENT AND SHOULD THEREFORE BE DISMISSED
IN ACCORDANCE WITH SECTION 21, RULE 3 OF THE RULES OF COURT.
II.

RESPONDENT COURT ERRED IN NOT TAKING JUDICIAL NOTICE OF THE

DECISION OF THE THEN INTERMEDIATE APPELLATE COURT IN AC-GR
NO. SP-05291 FINDING THE INSTANT CASE ONE FOR RECOVERY OF LAND
OR AN INTEREST THEREIN;
III.

RESPONDENT COURT ERRED IN FINDING THAT THE INSTANT CASE IS

ONE TO COMPEL THE CLIENT-DEFENDANT TO RECOGNIZE FOREMOST
THE EXISTENCE OF THE ATTORNEY-CLIENT RELATIONSHIP AFTER IT
WAS SEVERRED AND AS A CONSEQUENCE, INCIDENTALLY CLAIM
PAYMENT OF THEIR PROFESSIONAL FEES.

The pivot of inquiry here is: Whether or not the case at bar has survived the death of the
private respondent, Pedro V. Garcia.
It is petitioners theory that the action they brought below was, among others, for the
enforcement of their charging lien in Civil Case Nos. 14297 and 17713, and Civil Case No. Pq-
6596; which involved a claim over the real properties  litigated upon, and therefore, an action
which survived the death of their client, Pedro V. Garcia.
Section 21, Rule 3 of the Rules of Court[7] provides:

Where claims does not survive - When the action is for recovery of money, debt or
interest thereon, and the defendant dies before final judgment in the Court of First
Instance, it shall be dismissed to be prosecuted in the manner especially provided in
these rules.

To begin with, the aforequoted provision of law was modified by the enactment of the 1997
Civil Procedure, Section 20, Rule 3 of which, reads:

When the action is for recovery of money arising from contract, express or
implied, and the defendant dies before final 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 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.

It is a fundamental rule in legal hermeneutics that statutes regulating the procedure of the
courts will be construed as applicable to actions pending and undetermined at the time of the
passage,[8] Considering that the case under scrutiny was passed upon by the lower courts under
the old rule, it follows that the old rule governs.
Under the plain language of Section 21, Rule 3 of B.P. 129, it is beyond cavil that if the
defendant dies before  the Court of First Instance or the Regional Trial Court has rendered a
judgment, the action is dismissed and the plaintiff is required to file a money claim against the
estate of the deceased. But if the defendant dies after the said court has rendered a judgment and
pending appeal, the action is not dismissed and the deceased defendant is substituted by his
executor or administrator or legal heirs.[9]
To determine whether the action survives or not, the Court ruling in Bonilla vs. Barcena (71
SCRA 491) comes to the fore, thus:

The question as to whether an action survives or not depends on the nature of the

action and the damage sued for (Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT, 46
L.ed 739). In the cause of action which survive, the wrong complained affects
primarily and principally property and property rights, the injuries to the person
being merely incidental, while in the causes of action which do not survive, the injury
complained of is to the person, the property and rights of property affected being
incidental xxx..

The core of petitioners argument is that action should not be dismissed since their complaint
involves not just monetary claim but also real properties, as well..
Petitioners contention is untenable. While they maintain that what they are claiming include
real properties, their Complaint is captioned as For Collection of Money and for Specific
Performance. Obviously, the petitioners themselves, who are lawyers, believed that their cause
of action against the private respondent is in the nature of actio in personam.
Actio in personam is a personal action seeking redress against a particular person. Personal
actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof. [10] In
the present case, petitioners seek to recover attorneys fees from private respondent
for professional services  they rendered to the latter. Attorneys fee is basically a compensation.
[11]
 In its ordinary sense, the term (compensation) applies not only to salaries, but
to compensation by fees for specific service. [12]
Viewed in proper perspective, an action to recover attorneys fees is basically a monetary
claim, which under Section 21, Rule 3 ofB.P. 129 is an action that does not survive. Such is the
fate of Civil Case No. 6465.
Petitioners theorize that the inclusion of real properties as part of the attorneys fees private
respondent owe them, converted the action into one that survives or at the very least, split the
action into one that did not survive, with respect to the monetary obligation, and which survived,
with respect to the real properties of the deceased.
In Harden vs. Harden, 20 SCRA 706, the Court ruled that an action for the satisfaction of
attorneys fees is founded on a personal obligation which does not survive the death of the
defendant before adjudication.[13]
As enunciated in Bonila, the litmus test in determining what action survives and what does
not depends on the nature of the actionand not on the object or kind of property sought to be
recovered.
All things studiedly considered, we are of the opinion, and, so hold, that the respondent
Court of Appeals erred not in affirming the decision of the court a quo.
WHEREFORE, the Petition is hereby DENIED; and the decision of the Court of Appeals
in CA-G.R. CV No. 34360 AFFIRMED in toto. No pronouncement as to costs.
SO ORDERED.
Romero (Chairman), Panganiban, and Gonzaga-Reyes, JJ., concur.
Vitug, J., on official business abroad.
[1]
 Annex B, Petition; Rollo, pp. 36-42.
[2]
 Annex A, Petition; Rollo, p. 34.
[3]
 Seventeenth Division. Composed of Justices Alfredo L. Benipayo (Chairman), Ricardo P. Galvez (ponente) and
Eubulo G. Verzola (member).
[4]
 Annex A , C. A. Records, pp. 51-52.
[5]
 Annex E, CA Record, p. 24.
[6]
 Rollo, p. 19; 1964 Rules of Court.
[7]
 1964 Rules of Court.
[8]
  Atlas vs. Court of Appeals, 201 SCRA 51.
[9]
 Paredes vs. Moya, 61 SCRA 526.
[10]
 R.S. Vasan (Ed.), Latin Words and Phrases for Lawyers.
[11]
 7 Am Jur 2d, Attorneys At Law, 327, p. 340, citing Central R. & Banking Co. vs. Petters, 113 US 116.
[12]
 Kuenzle & Streiff Inc. vs. Commissioner of Internal Revenue, 120 Phil. 1099.
[13]
 Climaco vs. Siy Uy, 19 SCRA 858
G.R. No. 175910
 
Present:
 
YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.
 
Promulgated:
July 30, 2009

x---------------------------------------------------
x
 
 
DECISION
 
PERALTA, J.:
 
Before us is a petition for review on certiorari[1] with prayer for preliminary
injunction assailing the Order[2] dated March 22, 2006 of the Regional Trial Court
(RTC), Branch 19, Digos City, Davao del Sur, in Civil Case No. 3488.
 
The facts, as culled from the records, follow.
 
On February 14, 1995, a Decision was rendered in NLRC Case No. RAB-
11-07-00608-93 entitled, Patricio Sereno v. Teodoro Gasing/Truck Operator,
finding Sereno to have been illegally dismissed and ordering Gasing to pay him his
monetary claims in the amount of P43,606.47. After the Writ of Execution was
returned unsatisfied, Labor Arbiter Newton R. Sancho issued an Alias Writ of
Execution[3] on June 10, 1996, directing Fulgencio R. Lavarez, Sheriff II of the
National Labor Relations Commission (NLRC), to satisfy the judgment
award. On July 23, 1996, Lavarez, accompanied by Sereno and his counsel,
petitioner Atty. Rogelio E. Sarsaba, levied a Fuso Truck bearing License Plate No.
LBR-514, which at that time was in the possession of Gasing. On July 30, 1996,
the truck was sold at public auction, with Sereno appearing as the highest bidder.[4]
 
Meanwhile, respondent Fe Vda. de Te, represented by her attorney-in-fact,
Faustino Castaeda, filed with the RTC, Branch 18, Digos, Davao del Sur, a
Complaint[5] for recovery of motor vehicle, damages with prayer for the delivery of
the truck pendente lite against petitioner, Sereno, Lavarez and the NLRC of Davao
City, docketed as Civil Case No. 3488.
 
Respondent alleged that: (1) she is the wife of the late Pedro Te, the registered
owner of the truck, as evidenced by the Official Receipt [6] and Certificate of
Registration;[7] (2) Gasing merely rented the truck from her; (3) Lavarez
erroneously assumed that Gasing owned the truck because he was, at the time of
the taking,[8] in possession of the same; and (4) since neither she nor her husband
were parties to the labor case between Sereno and Gasing, she should not be made
to answer for the judgment award, much less be deprived of the truck as a
consequence of the levy in execution.
 
Petitioner filed a Motion to Dismiss [9] on the following grounds: (1) respondent has
no legal personality to sue, having no real interests over the property subject of the
instant complaint; (2) the allegations in the complaint do not sufficiently state that
the respondent has cause of action; (3) the allegations in the complaint do not
contain sufficient cause of action as against him; and (4) the complaint is not
accompanied by an Affidavit of Merit and Bond that would entitle the respondent
to the delivery of the tuck pendente lite.
 
The NLRC also filed a Motion to Dismiss [10] on the grounds of lack of jurisdiction
and lack of cause of action.
 
Meanwhile, Lavarez filed an Answer with Compulsory Counterclaim and Third-
Party Complaint.[11] By way of special and affirmative defenses, he asserted that
the RTC does not have jurisdiction over the subject matter and that the complaint
does not state a cause of action.
 
On January 21, 2000, the RTC issued an Order [12] denying petitioner's Motion to
Dismiss for lack of merit.
 
In his Answer,[13] petitioner denied the material allegations in the
complaint. Specifically, he cited as affirmative defenses that: respondent had no
legal personality to sue, as she had no interest over the motor vehicle; that there
was no showing that the heirs have filed an intestate estate proceedings of the
estate of Pedro Te, or that respondent was duly authorized by her co-heirs to file
the case; and that the truck was already sold to Gasing on March 11, 1986 by one
Jesus Matias, who bought the same from the Spouses Te. Corollarily, Gasing was
already the lawful owner of the truck when it was levied on execution and, later on,
sold at public auction.
 
Incidentally, Lavarez filed a Motion for Inhibition,[14] which was opposed[15] by
respondent.
On October 13, 2000, RTC Branch 18 issued an Order[16] of inhibition and directed
the transfer of the records to Branch 19. RTC Branch 19, however, returned the
records back to Branch 18 in view of the appointment of a new judge in place of
Judge-designate Rodolfo A. Escovilla. Yet, Branch 19 issued another
Order[17] dated November 22, 2000 retaining the case in said branch.
 
Eventually, the RTC issued an Order[18] dated May 19, 2003 denying the separate
motions to dismiss filed by the NLRC and Lavarez, and setting the Pre-Trial
Conference on July 25, 2003.
 
On October 17, 2005, petitioner filed an Omnibus Motion to Dismiss the Case on
the following grounds:[19] (1) lack of jurisdiction over one of the principal
defendants; and (2) to discharge respondent's attorney-in-fact for lack of legal
personality to sue.
 
It appeared that the respondent, Fe Vda. de Te, died on April 12, 2005.[20]
 
Respondent, through her lawyer, Atty. William G. Carpentero, filed an Opposition,
[21]
 contending that the failure to serve summons upon Sereno is not a ground for
dismissing the complaint, because the other defendants have already submitted
their respective responsive pleadings. He also contended that the defendants,
including herein petitioner, had previously filed separate motions to dismiss the
complaint, which the RTC denied for lack of merit. Moreover, respondent's death
did not render functus officio her right to sue since her attorney-in-fact, Faustino
Castaeda, had long testified on the complaint on March 13, 1998 for and on her
behalf and, accordingly, submitted documentary exhibits in support of the
complaint.
 
On March 22, 2006, the RTC issued the assailed Order [22] denying petitioner's
aforesaid motion.
 
Petitioner then filed a Motion for Reconsideration with Motion for Inhibition, [23] in
which he claimed that the judge who issued the Order was biased and partial. He
went on to state that the judge's husband was the defendant in a petition for judicial
recognition of which he was the counsel, docketed as Civil Case No. C-XXI-100,
before the RTC, Branch 21, Bansalan, Davao del Sur. Thus, propriety dictates that
the judge should inhibit herself from the case.
 
Acting on the motion for inhibition, Judge Carmelita Sarno-Davin granted the
same[24] and ordered that the case be re-raffled to Branch 18. Eventually, the said
RTC issued an Order[25] on October 16, 2006 denying petitioner's motion for
reconsideration for lack of merit.
Hence, petitioner directly sought recourse from the Court via the present petition
involving pure questions of law, which he claimed were resolved by the RTC
contrary to law, rules and existing jurisprudence.[26]
 
There is a question of law when the doubt or difference arises as to what the law is
on certain state of facts, and which does not call for an examination of the
probative value of the evidence presented by the parties-litigants. On the other
hand, there is a question of fact when the doubt or controversy arises as to the
truth or falsity of the alleged facts. Simply put, when there is no dispute as to fact,
the question of whether or not the conclusion drawn therefrom is correct, is a
question of law.[27]
 
Verily, the issues raised by herein petitioner are questions of law, as their
resolution rest solely on what the law provides given the set of circumstances
availing. The first issue involves the jurisdiction of the court over the person of one
of the defendants, who was not served with summons on account of his death. The
second issue, on the other hand, pertains to the legal effect of death of the plaintiff
during the pendency of the case.
 
At first brush, it may appear that since pure questions of law were raised,
petitioner's resort to this Court was justified and the resolution of the
aforementioned issues will necessarily follow. However, a perusal of the petition
requires that certain procedural issues must initially be resolved before We delve
into the merits of the case.
 
Notably, the petition was filed directly from the RTC which issued the Order in the
exercise of its original jurisdiction. The question before Us then is: whether or not
petitioner correctly availed of the mode of appeal under Rule 45 of the Rules of
Court.
 
Significantly, the rule on appeals is outlined below, to wit:[28]
 

(1) In all cases decided by the RTC in the exercise of its original

jurisdiction, appeal may be made to the Court of Appeals by mere
 notice of appeal where the appellant raises questions of fact or mixed
questions of fact and law;
 
(2) In all cases decided by the RTC in the exercise of its original
jurisdiction where the appellant raises only questions of law, the
appeal must be taken to the Supreme Court on a petition for review
on certiorari under Rule 45.
 
(3) All appeals from judgments rendered by the RTC in the exercise of its
appellate jurisdiction, regardless of whether the appellant raises
questions of fact, questions of law, or mixed questions of fact and law,
shall be brought to the Court of Appeals by filing a petition for review
under Rule 42.
 
Accordingly, an appeal may be taken from the RTC which exercised its original
jurisdiction, before the Court of Appeals or directly before this Court, provided
that the subject of the same is a judgment or final order that completely disposes
of the case, or of a particular matter therein when declared by the Rules to be
appealable.[29]The first mode of appeal, to be filed before the Court of Appeals,
pertains to a writ of error under Section 2(a), Rule 41 of the Rules of Court, if
questions of fact or questions of fact and law are raised or involved. On the other
hand, the second mode is by way of an appeal by certiorari before the Supreme
Court under Section 2(c), Rule 41, in relation to Rule 45, where only questions of
law are raised or involved.[30]

An order or judgment of the RTC is deemed final when it finally disposes of a

pending action, so that nothing more can be done with it in the trial court. In other
words, the order or judgment ends the litigation in the lower court. [31]On the other
hand, an order which does not dispose of the case completely and indicates that
other things remain to be done by the court as regards the merits,
is interlocutory. Interlocutory refers to something between the commencement
and the end of the suit which decides some point or matter, but is not a final
decision on the whole controversy.[32]

The subject of the present petition is an Order of the RTC, which denied
petitioner's Omnibus Motion to Dismiss, for lack of merit.
 
We have said time and again that an order denying a motion to dismiss is
interlocutory.[33] Under Section 1(c), Rule 41 of the Rules of Court, an
interlocutory order is not appealable. As a remedy for the denial, a party has to file
an answer and interpose as a defense the objections raised in the motion, and then
to proceed to trial; or, a party may immediately avail of the remedy available to the
aggrieved party by filing an appropriate special civil action for certiorari under
Rule 65 of the Revised Rules of Court. Let it be stressed though that a petition
for certiorari is appropriate only when an order has been issued without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction.
 
Based on the foregoing, the Order of the RTC denying petitioner's Omnibus
Motion to Dismiss is not appealable even on pure questions of law. It is worth
mentioning that the proper procedure in this case, as enunciated by this Court, is to
cite such interlocutory order as an error in the appeal of the case -- in the event that
the RTC rules in favor of respondent -- and not to appeal such interlocutory
order. On the other hand, if the petition is to be treated as a petition for review
under Rule 45, it would likewise fail because the proper subject would only be
judgments or final orders that completely dispose of the case.[34]
 
Not being a proper subject of an appeal, the Order of the RTC is considered
interlocutory. Petitioner should haveproceeded with the trial of the case and,
should the RTC eventually render an unfavorable verdict, petitioner should assail
the said Order as part of an appeal that may be taken from the final judgment to be
rendered in this case. Such rule is founded on considerations of orderly
procedure, to forestall useless appeals and avoid
undue inconvenience to the appealing party by having to assail orders as they are
promulgated by the court, when all such orders may be contested in a single
appeal.
 
In one case,[35] the Court adverted to the hazards of interlocutory appeals:
 
It is axiomatic that an interlocutory order cannot be challenged by an
appeal. Thus, it has been held that the proper remedy in such cases is an ordinary
appeal from an adverse judgment on the merits, incorporating in said appeal the
 grounds for assailing the interlocutory order. Allowing appeals from interlocutory
orders would result in the `sorry spectacle of a case being subject of a
counterproductive ping-pong to and from the appellate court as often as a trial
court is perceived to have made an error in any of its interlocutory rulings. x x x.
 
 
Another recognized reason of the law in permitting appeal only from a final
order or judgment, and not from an interlocutory or incidental one, is to avoid
multiplicity of appeals in a single action, which must necessarily suspend the
hearing and decision on the merits of the case during the pendency of the appeal. If
such appeal were allowed, trial on the merits of the case would necessarily be
delayed for a considerable length of time and compel the adverse party to incur
unnecessary expenses, for one of the parties may interpose as many appeals as
incidental questions may be raised by him, and interlocutory orders rendered or
issued by the lower court.[36]
 
And, even if We treat the petition to have been filed under Rule 65, the same
is still dismissible for violating the principle on hierarchy of courts. Generally, a
direct resort to us in a petition for certiorari is highly improper, for it violates the
established policy of strict observance of the judicial hierarchy of courts. [37] This
principle, as a rule, requires that recourse must first be made to the lower-ranked
court exercising concurrent jurisdiction with a higher
court. However, the judicial hierarchy of courts is not an iron-clad rule. A strict
application of the rule is not necessary when cases brought
before the appellate courts do not involve factual but legal questions.[38]
In the present case, petitioner submits pure questions of law involving the
effect of non-service of summons following the death of the person to whom it
should be served, and the effect of the death of the complainant during the
pendency of the case. We deem it best to rule on these issues, not only for the
benefit of the bench and bar, but in order to prevent further delay in the trial of the
case. Resultantly, our relaxation of the policy of strict observance of the judicial
hierarchy of courts is warranted.
 
Anent the first issue, petitioner argues that, since Sereno died before
summons was served on him, the RTC should have dismissed the complaint
against all the defendants and that the same should be filed against his estate.
  
The Sheriff's Return of Service[39] dated May 19, 1997 states that Sereno
could not be served with copy of the summons, together with a copy of the
complaint, because he was already dead.
 
In view of Sereno's death, petitioner asks that the complaint should be
dismissed, not only against Sereno, butas to all the defendants, considering that the
RTC did not acquire jurisdiction over the person of Sereno.
 
Jurisdiction over a party is acquired by service of summons by the sheriff, his
deputy or other proper court officer, either personally by handing
a copy thereof to the defendant or by substituted service.[40] On the other
hand, summons is a writ by which the defendant is notified of the action brought
against him. Service of such writ is the means by which the court may acquire
jurisdiction over his person.[41]
 

Records show that petitioner had filed a Motion to Dismiss on the grounds of lack
of legal personality of respondent; the allegations in the complaint did not
sufficiently state that respondent has a cause of action or a cause of action against
the defendants; and, the complaint was not accompanied by an affidavit of merit
and bond. The RTC denied the motion and held therein that, on the basis of the
allegations of fact in the complaint, it can render a valid judgment. Petitioner,
subsequently, filed his answer by denying all the material allegations of the
complaint. And by way of special and affirmative defenses, he reiterated that
respondent had no legal personality to sue as she had no real interest over the
property and that while the truck was still registered in Pedro Te's name, the same
was already sold to Gasing.
 

Significantly, a motion to dismiss may be filed within the time for but before the
filing of an answer to the complaint or pleading asserting a claim.[42] Among the
grounds mentioned is the court's lack of jurisdiction over the person of the
defending party.
 

As a rule, all defenses and objections not pleaded, either in a motion to dismiss or
in an answer, are deemed waived.[43] The exceptions to this rule are: (1) when the
court has no jurisdiction over the subject matter, (2) when there is another action
pending between the parties for the same cause, or (3) when the action is barred by
prior judgment or by statute of limitations, in which cases, the court may dismiss
the claim.
 
In the case before Us, petitioner raises the issue of lack of jurisdiction over the
person of Sereno, not in his Motion to Dismiss or in his Answer but only in his
Omnibus Motion to Dismiss. Having failed to invoke this ground at the proper
time, that is, in a motion to dismiss, petitioner cannot raise it now for the first time
on appeal.
 

In fine, We cannot countenance petitioner's argument that the complaint against

the other defendants should have been dismissed, considering that the RTC never
acquired jurisdiction over the person of Sereno. The court's failure to acquire
jurisdiction over one's person is a defense which is personal to the person claiming
it. Obviously, it is now impossible for Sereno to invoke the same in view of his
death. Neither can petitioner invoke such ground, on behalf of Sereno, so as to reap
the benefit of having the case dismissed against all of the defendants. Failure to
serve summons on Sereno's person will not be a cause for the dismissal of the
complaint against the other defendants, considering that they have been served
with copies of the summons and complaints and have long submitted their
respective responsive pleadings. In fact, the other defendants in the complaint were
given the chance to raise all possible defenses and objections personal to them in
their respective motions to dismiss and their subsequent answers.
 
We agree with the RTC in its Order when it resolved the issue in this wise:
As correctly pointed by defendants, the Honorable Court has not acquired
jurisdiction over the person of Patricio Sereno since there was indeed no valid
service of summons insofar as Patricio Sereno is concerned. Patricio Sereno died
before the summons, together with a copy of the complaint and its annexes, could
be served upon him.
 
However, the failure to effect service of summons unto Patricio Sereno, one of
the defendants herein does not render the action DISMISSIBLE, considering that
the three (3) other defendants, namely, Atty. Rogelio E. Sarsaba, Fulgencio
Lavares and the NLRC, were validly served with summons and the case with
respect to the answering defendants may still proceed independently. Be it
recalled that the three (3) answering defendants have previously filed a Motion to
Dismiss the Complaint which was denied by the Court.
 
Hence, only the case against Patricio Sereno will be DISMISSED and the same
may be filed as a claim against the estate of Patricio Sereno, but the case with
respect to the three (3) other accused will proceed.
 
Anent the second issue, petitioner moves that respondent's attorney-in-fact,
Faustino Castaeda, be discharged as he has no more legal personality to sue on
behalf of Fe Vda. de Te, who passed away on April 12, 2005, during the pendency
of the case before the RTC.
 

When a party to a pending action dies and the claim is not extinguished, the Rules
of Court require a substitution of the deceased.[44] Section 1, Rule 87 of the Rules
of Court enumerates the actions that survived and may be filed against the
decedent's representatives as follows: (1) actions to recover real or personal
property or an interest thereon, (2) actions to enforce liens thereon, and (3) actions
to recover damages for an injury to a person or a property. In such cases, a counsel
is obliged to inform the court of the death of his client and give the name and
address of the latter's legal representative.[45]
 

The rule on substitution of parties is governed by Section 16, [46] Rule 3 of the 1997
Rules of Civil Procedure, as amended.
 

Strictly speaking, the rule on substitution by heirs is not a matter of jurisdiction,

but a requirement of due process.The rule on substitution was crafted to protect
every party's right to due process. It was designed to ensure that the deceased party
would continue to be properly represented in the suit through his heirs or the duly
appointed legal representative of his estate. Moreover, non-compliance with the
Rules results in the denial of the right to due process for the heirs who, though not
duly notified of the proceedings, would be substantially affected by the decision
rendered therein. Thus, it is only when there is a denial of due process, as when the
deceased is not represented by any legal representative or heir, that the court
nullifies the trial proceedings and the resulting judgment therein.[47]
 

In the case before Us, it appears that respondent's counsel did not make any
manifestation before the RTC as to her death. In fact, he had actively participated
in the proceedings. Neither had he shown any proof that he had been retained by
respondent's legal representative or any one who succeeded her.
 
 
However, such failure of counsel would not lead Us to invalidate the proceedings
that have long taken place before the RTC. The Court has repeatedly declared that
failure of the counsel to comply with his duty to inform the court of the death of
his client, such that no substitution is effected, will not invalidate the proceedings
and the judgment rendered thereon if the action survives the death of such
party. The trial court's jurisdiction over the case subsists despite the death of the
party.[48]
 

The purpose behind this rule is the protection of the right to due process of every
party to the litigation who may be affected by the intervening death. The deceased
litigants are themselves protected as they continue to be properly represented in the
suit through the duly appointed legal representative of their estate.[49]
 

Anent the claim of petitioner that the special power of attorney [50] dated March 4,
1997 executed by respondent in favor of Faustino has become functus officio and
that the agency constituted between them has been extinguished upon the death of
respondent, corollarily, he had no more personality to appear and prosecute the
case on her behalf.
 

Agency is extinguished by the death of the principal. [51] The only exception where
the agency shall remain in full force and effect even after the death of the principal
is when if it has been constituted in the common interest of the latter and of the
agent, or in the interest of a third person who has accepted the stipulation in his
favor.[52]

A perusal of the special power of attorney leads us to conclude that it was

constituted for the benefit solely of the principal or for respondent Fe Vda. de
Te. Nowhere can we infer from the stipulations therein that it was created for the
common interest of respondent and her attorney-in-fact. Neither was there any
mention that it was to benefit a third person who has accepted the stipulation in his
favor.
 
On this ground, We agree with petitioner. However, We do not believe that such
ground would cause the dismissal of the complaint. For as We have said, Civil
Case No. 3488, which is an action for the recovery of a personal property, a motor
vehicle, is an action that survives pursuant to Section 1, Rule 87 of the Rules of
Court. As such, it is not extinguished by the death of a party.
 
In Gonzalez v. Philippine Amusement and Gaming Corporation,[53] We have laid
down the criteria for determining whether an action survives the death of a plaintiff
or petitioner, to wit:
 
x x x The question as to whether an action survives or not depends on the nature
of the action and the damage sued for. If the causes of action which survive the
wrong complained [of] affects primarily and principally property and property
rights, the injuries to the person being merely incidental, while in the causes of
action which do not survive the injury complained of is to the person the property
and rights of property affected being incidental. x x x
 
Thus, the RTC aptly resolved the second issue with the following ratiocination:
 
While it may be true as alleged by defendants that with the death of Plaintiff, Fe Vda. de
Te, the Special Power of Attorney she executed empowering the Attorney-in-fact,
Faustino Castaeda to sue in her behalf has been rendered functus officio, however,
this Court believes that the Attorney-in-fact had not lost his personality to
prosecute this case.
 
It bears stressing that when this case was initiated/filed by the Attorney-in-fact,
the plaintiff was still very much alive.
Records reveal that the Attorney-in-fact has testified long before in behalf of the
said plaintiff and more particularly during the state when the plaintiff was
vehemently opposing the dismissal of the complainant. Subsequently thereto, he
even offered documentary evidence in support of the complaint, and this court
admitted the same. When this case was initiated, jurisdiction was vested upon this
Court to try and hear the same to the end. Well-settled is the rule to the point of
being elementary that once jurisdiction is acquired by this Court, it attaches until
the case is decided.
 
Thus, the proper remedy here is the Substitution of Heirs and not the dismissal of
this case which would work injustice to the plaintiff.
 
SEC. 16, RULE 3 provides for the substitution of the plaintiff who dies pending
hearing of the case by his/her legal heirs.As to whether or not the heirs will still
continue to engage the services of the Attorney-in-fact is another matter, which
lies within the sole discretion of the heirs.
 
 
In fine, We hold that the petition should be denied as the RTC Order is
interlocutory; hence, not a proper subject of an appeal before the Court. In the
same breath, We also hold that, if the petition is to be treated as a petition
for certiorari as a relaxation of the judicial hierarchy of courts, the same is also
dismissible for being substantially insufficient to warrant the Court the
nullification of the Order of the RTC.
 
Let this be an occasion for Us to reiterate that the rules are there to aid litigants in
prosecuting or defending their cases before the courts. However, these very rules
should not be abused so as to advance one's personal purposes, to the detriment of
orderly administration of justice. We can surmise from the present case herein
petitioner's manipulation in order to circumvent the rule on modes of appeal and
the hierarchy of courts so that the issues presented herein could be settled without
going through the established procedures. In Vergara, Sr. v. Suelto,[54] We stressed
that this should be the constant policy that must be observed strictly by the courts
and lawyers, thus:

x x x. The Supreme Court is a court of last resort, and must so remain if it is

to satisfactorily perform the functions assigned to it by the fundamental
charter and immemorial tradition. It cannot and should not be burdened with
the task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where
absolutely necessary or where serious and important reasons exist
therefor. Hence, that jurisdiction should generally be exercised relative to actions
or proceedings before the Court of Appeals, or before constitutional or other
tribunals, bodies or agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a Regional Trial
Court, it is in either of these courts that the specific action for the writs
procurement must be presented. This is and should continue to be the policy
in this regard, a policy that courts and lawyers must strictly observe.[55]
 
WHEREFORE, premises considered, the Petition is DENIED. The Order
dated March 22, 2006 of the Regional Trial Court, Branch 19, Digos, Davao del
Sur in Civil Case No. 3488, is hereby AFFIRMED. Costs against the petitioner.
 
SO ORDERED.
 
 
DIOSDADO M. PERALTA
Associate Justice
 
 
WE CONCUR:
 
 
 
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
 
 
 
 
 
MINITA V. CHICO-NAZARIO PRESBITERIO J. VELASCO, JR.
Associate Justice Associate Justice
 
 
 
ANTONIO EDUARDO B. NACHURA
Associate Justice
 
 
 
 
ATTESTATION
 
 
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
 
 
 
CONSUELO YNARES-SANTIAGO
Associate Justice
Third Division, Chairperson
 
 
  
 
 
CERTIFICATION
 
 
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of
the Courts Division.
 
 
 
REYNATO S. PUNO
Chief Justice

[1]
 Pursuant to Rule 45 of the 1997 Rules of Civil Procedure; rollo, pp. 11-26.
[2]
 Penned by Judge Carmelita Sarno-Davin; id. at 33-34.
[3]
 Records, pp. 76-78.
[4]
 Certificate of Sale; id. at 45.
[5]
 Records, pp. 2-7.
[6] 
Annex B of the Complaint, id. at 11.
[7]
 Annex C of the Complaint, id. at 12.
[8]
 Extract from the Police Blotter of the Kiblawan Municipal Police Office, dated April 1, 1997, Annex D of the
Complaint, id. at 13.
[9]
 Records, pp. 16-26.
[10]
 Id. at 62-65.
[11]
 Id. at 92-98.
[12]
 Penned by Judge Rodolfo A. Escovilla; id. at 175-177.
[13]
 Records, pp. 196-199.
[14]
 Id. at 206-210.
[15]
 Id. at 212-213; 216-217.
[16]
 Id. at 218.
[17]
 Id. at 228.
[18]
 Id. at 246-248.
[19]
 Rollo, pp. 56-58.
[20]
 Named as Prescilla Suarez Te in her Death Certificate, records, p. 305.
[21]
 Rollo, pp. 308-310.
[22]
 Supra note 2.
[23]
 Rollo, pp. 36-42.
[24] 
Order dated August 1, 2006; id. at 46-48.
[25]
 Rollo, p. 50.
[26]
 Id. at 20.
[27]
 Cucueco v. Court of Appeals, 484 Phil. 254, 264 (2004).
[28]
 Sevilleno v. Carilo, G.R. No. 146454, September 14, 2007, 533 SCRA 385, 388, citing Macawiwili Gold Mining
and Development Co., Inc. v. Court of Appeals,297 SCRA 602 (1998). Significantly, under the Revised Rules on
Criminal Procedure, all criminal cases, where the penalty imposed by the RTC is death, reclusion perpetua or life
imprisonment, are now appealed before the Court of Appeals, instead of directly before this Court on automatic
review, which new procedure was in accordance with the pronouncement in People v. Mateo (G.R. Nos. 147678-87,
July 7, 2007, 433 SCRA 640).
[29] 
1997 Rule of Civil Procedure (as amended), Rule 41, Sec. 1.
[30]
 First Bancorp, Inc. v. Court of Appeals, G. R. No. 151132, June 22, 2006, 492 SCRA 221, 235, citing Rule 41,
Section 2, 1997 Rules of Civil Procedure, as amended.
[31]
 Madrigal Transport, Inc. v. Lapanday Holdings Corporation, G.R. No. 156067, August 1, 2004, 436 SCRA 123,
132.
[32]
 Philippine Computer Solutions, Inc. v. Hernandez, G.R. No. 168776, July 17, 2007, 527 SCRA 809, 824.
[33]
 Mondragon Leisure and Resorts Corporation v. United Coconut Planters Bank, 471 Phil. 570, 574 (2004).
[34]
 De Castro v. Fernandez, G.R. No. 155041, February 14, 2007, 515 SCRA 682, 686.
[35]
 Philippine Computer Solutions, Inc. v. Hernandez, supra note 32, at 825, citing Go v. Court of Appeals, 297
SCRA 574, 581-582 (1998).
[36]
 Judy Anne L. Santos v. People of the Philippines and Bureau of Internal Revenue, G.R. No. 173176, August 26,
2008.
[37]
 Pacoy v. Cajigal, G.R. No. 157472, September 28, 2007, 534 SCRA 338, 346.
[38]
 Rogelio Z. Bagabuyo v. Comelec, G.R. No. 176970, December 8, 2008.
[39]
 Records, p. 49.
[40]
 St. Aviation Services Co., Pte., Ltd. v. Grand International Airways, Inc., G.R. No. 140288, October 23, 2006,
505 SCRA 30, 36.
[41]
 Casimina v. Legaspi, G.R. No. 147530, June 29, 2005, 462 SCRA 171, 177-178.
[42]
 1997 Rules of Civil Procedure (as amended), Rule 16, Sec. 1(a).
[43]
 1997 Rules of Civil Procedure (as amended), Rule 9, Sec. 1.
[44]
 De la Cruz v. Joaquin, G.R. No. 162788, July 28, 2005, 464 SCRA 576, 583. See also Board of Liquidators v.
Heirs of M. Kalaw et al., 127 Phil. 399, 414 (1967).
[45] 
Napere v. Barbarona, G.R. No. 160426, January 31, 2008, 543 SCRA 376, 381.
[46] 
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) 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.
[47]
 Napere v. Barbona, supra note 45, at 382.
[48]
 Id.
[49]
 Sumaljag v. Literato, G.R. No. 149787, June 18, 2008, 555 SCRA 53, 62.
[50] 
Records, pp. 9-10.
[51]
 New Civil Code, Article 1919 (3).
[52]
 New Civil Code, Article 1930.
[53]
 G.R. No. 144891, May 27, 2004, 429 SCRA 533, 540.
[54] 
G.R. No. L-74766, December 21, 1987, 156 SCRA 753.
[55]
 Id. at 766. (Emphasis supplied.)

GENEROSO SALIGUMBA, G.R. No. 143365

ERNESTO SALIGUMBA, and
HEIRS OF SPOUSES VALERIA Present:
SALIGUMBA AND ELISEO
SALIGUMBA, SR., PUNO, C.J., Chairperson,
Petitioners, CARPIO,
CORONA,
AZCUNA, and
TINGA,* JJ.
- versus -
 
 
MONICA PALANOG, Promulgated:
Respondent. December 4, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 
 
 
DECISION
 
 
CARPIO, J.:
 
The Case
 
 
This is a petition for review of the Decision dated 24 May 2000 of the Regional
Trial Court, Branch 5, Kalibo, Aklan(RTC-Branch 5) in Civil Case No. 5288 for
Revival of Judgment. The case is an offshoot of the action for Quieting of Title
with Damages in Civil Case No. 2570.
 
 
 
The Facts
 
Monica Palanog, assisted by her husband Avelino Palanog (spouses Palanogs),
filed a complaint dated 28 February 1977 for Quieting of Title with Damages
against defendants, spouses Valeria Saligumba and Eliseo Saligumba, Sr.
(spouses Saligumbas), before the Regional Trial Court, Branch
3, Kalibo, Aklan (RTC-Branch 3). The case was docketed as Civil Case No.
2570. In the complaint, spouses Palanogs alleged that they have been in actual,
open, adverse and continuous possession as owners for more than 50 years of a
parcel of land located in Solido, Nabas, Aklan. The spouses Saligumbas allegedly
prevented them from entering and residing on the subject premises and had
destroyed the barbed wires enclosing the land. Spouses Palanogs prayed that they
be declared the true and rightful owners of the land in question.
 
When the case was called for pre-trial on 22 September 1977,
Atty. Edilberto Miralles (Atty. Miralles), counsel for spouses Saligumbas, verbally
moved for the appointment of a commissioner to delimit the land in
question. RizalinoGo, Deputy Sheriff of Aklan, was appointed commissioner and
was directed to submit his report and sketch within 30 days. [1] Present during the
delimitation were spouses Palanogs, spouses Saligumbas, and Ernesto Saligumba,
son of spouses Saligumbas.[2]
 
After submission of the Commissioners Report, spouses Palanogs, upon motion,
were granted 10 days to amend their complaint to conform with the items
mentioned in the report.[3]
 
Thereafter, trial on the merits ensued. At the hearing on 1 June 1984, only the
counsel for spouses Palanogs appeared. The trial court issued an order resetting the
hearing to 15 August 1984 and likewise directed spouses Saligumbas to secure the
services of another counsel who should be ready on that date.[4] The order sent
to Eliseo Saligumba, Sr. was returned to the court unserved with the notation
PartyDeceased while the order sent to defendant Valeria Saligumba was returned
with the notation Party in Manila.[5]
 
At the hearing on 15 August 1984, spouses Palanogs direct examination was
suspended and the continuation of the hearing was set on 25 October 1984. The
trial court stated that Atty. Miralles, who had not withdrawn as counsel for
spouses Saligumbas despite his appointment as Municipal Circuit Trial Court
judge, would be held responsible for the case of spouses Saligumbas until he
formally withdrew as counsel. The trial court reminded Atty. Miralles to secure the
consent of spouses Saligumbas for his withdrawal.[6] A copy of this order was sent
to Valeria Saligumba but the same was returned unserved with the notation Party
in Manila.[7]
 
The hearing set on 25 October 1984 was reset to 25 January 1985 and the trial
court directed that a copy of this order be sent to Eliseo Saligumba, Jr. at COA,
PNB, Manila.[8]
 
The presentation of evidence for spouses Palanogs resumed on 25 January
1985 despite the motion of Atty. Mirallesfor postponement on the ground that his
client was sick. The exhibits were admitted and plaintiffs spouses Palanogsrested
their case. Reception of evidence for the defendants spouses Saligumbas was
scheduled on 3, 4, and 5 June 1985.[9]
 
On 3 June 1985, only spouses Palanogs and counsel appeared. Upon motion of the
spouses Palanogs, spouses Saligumbas were deemed to have waived the
presentation of their evidence.
 
On 3 August 1987, after a lapse of more than two years, the trial court considered
the case submitted for decision.
 
On 7 August 1987, RTC-Branch 3 rendered a judgment in Civil Case No. 2570
declaring spouses Palanogs the lawful owners of the subject land and ordering
spouses Saligumbas, their agents, representatives and all persons acting
in privity with them to vacate the premises and restore possession to
spouses Palanogs.
 
The trial court, in a separate Order dated 7 August 1987, directed that a copy of the
courts decision be furnished plaintiff Monica Palanog and defendant
Valeria Saligumba.
 
Thereafter, a motion for the issuance of a writ of execution of the said decision was
filed but the trial court, in its Order dated 8 May 1997, ruled that since more than
five years had elapsed after the date of its finality, the decision could no longer be
executed by mere motion.
 
Thus, on 9 May 1997, Monica Palanog (respondent), now a widow, filed a
Complaint seeking to revive and enforce the Decision dated 7 August 1987 in Civil
Case No. 2570 which she claimed has not been barred by the statute of limitations.
She impleaded petitioners Generoso Saligumba and Ernesto Saligumba, the heirs
and children of the spouses Saligumbas, as defendants. The case was docketed as
Civil Case No. 5288 before the RTC-Branch 5.
 
Petitioner Generoso Saligumba, for himself and in representation of his brother
Ernesto who was out of the country working as a seaman, engaged the services of
the Public Attorneys Office, Kalibo, Aklan which filed a motion for time to allow
them to file a responsive pleading. Petitioner Generoso Saligumba filed his
Answer[10] alleging that:(1) respondent had no cause of action; (2) the
spouses Saligumbas died while Civil Case No. 2570 was pending and no order of
substitution was issued and hence, the trial was null and void; and (3) the court did
not acquire jurisdiction over the heirs of the spouses Saligumbas and therefore, the
judgment was not binding on them.
 
Meanwhile, on 19 December 1997, the trial court granted respondents motion
to implead additional defendants namely, Eliseo Saligumba, Jr. and
Eduardo Saligumba, who are also the heirs and children of spouses Saligumbas.
[11]
 They were, however, declared in default on 1 October 1999 for failure to file
any responsive pleading.[12]
 
The Trial Courts Ruling
 
On 24 May 2000, the RTC-Branch 5 rendered a decision in favor of respondent
ordering the revival of judgment in Civil Case No. 2570. The trial court ruled that
the non-substitution of the deceased spouses did not have any legal significance.
The land subject of Civil Case No. 2570 was the exclusive property of defendant
Valeria Saligumba who inherited the same from her deceased parents. The death of
her husband, Eliseo Saligumba, Sr., did not change the complexion of the
ownership of the property that would require his substitution. The
spouses Saligumbas children, who are the petitioners in this case, had no right to
the property while Valeria Saligumba was still alive. The trial court further found
that when defendant Valeria Saligumba died, her lawyer, Atty. Miralles, did not
inform the court of the death of his client. The trial court thus ruled that the non-
substitution of the deceased defendant was solely due to the negligence of counsel.
Moreover, petitioner Ernesto Saligumba could not feign ignorance of Civil
Case No. 2570 as he was present during the delimitation of the subject land. The
trial court likewise held that the decision in Civil Case No. 2570 could not be the
subject of a collateral attack. There must be a direct action for the annulment of the
said decision.
 
Petitioners elevated the matter directly to this Court. Hence, the present petition.
 
The Courts Ruling
 
The instant case is an action for revival of judgment and the judgment sought to be
revived in this case is the decision in the action for quieting of title with damages
in Civil Case No. 2570. This is not one for annulment of judgment.
 
An action for revival of judgment is no more than a procedural means of securing
the execution of a previous judgment which has become dormant after the passage
of five years without it being executed upon motion of the prevailing party. It is
not intended to re-open any issue affecting the merits of the judgment debtors case
nor the propriety or correctness of the first judgment.[13] An action for revival of
judgment is a new and independent action, different and distinct from either the
recovery of property case or the reconstitution case, wherein the cause of action is
the decision itself and not the merits of the action upon which the judgment sought
to be enforced is rendered.[14]Revival of judgment is premised on the assumption
that the decision to be revived, either by motion or by independent action, is
already final and executory.[15]
 
The RTC-Branch 3 Decision dated 7 August 1987 in Civil Case No. 2570 had been
rendered final and executory by the lapse of time with no motion for
reconsideration nor appeal having been filed. While it may be true that the
judgment in Civil Case No. 2570 may be revived and its execution may be had, the
issue now before us is whether or not execution of judgment can be issued against
petitioners who claim that they are not bound by the RTC-Branch 3 Decision
dated 7 August 1987 in Civil Case No. 2570.
Petitioners contend that the RTC-Branch 3 Decision of 7 August 1987 in Civil
Case No. 2570 is null and void since there was no proper substitution of the
deceased spouses Saligumbas despite the trial courts knowledge that the deceased
spouses Saligumbas were no longer represented by counsel. They argue that they
were deprived of due process and justice was not duly served on them.
 
Petitioners argue that the trial court even acknowledged the fact of death of
spouses Saligumbas but justified the validity of the decision rendered in that case
despite lack of substitution because of the negligence or fault of their counsel.
Petitioners contend that the duty of counsel for the deceased spouses Saligumbas to
inform the court of the death of his clients and to furnish the name and address of
the executor, administrator, heir or legal representative of the decedent under Rule
3 presupposes adequate or active representation by counsel. However, the relation
of attorney and client was already terminated by the appointment of counsel on
record, Atty. Miralles, as Municipal Circuit Trial Court judge even before the
deaths of the spouses Saligumbas were known. Petitioners invoke the Order of 1
June 1984 directing the spouses Saligumbas to secure the services of another
lawyer to replace Atty. Miralles. The registered mail containing that order was
returned to the trial court with the notation that Eliseo Saligumba, Sr. was
deceased. Petitioners thus question the decision in Civil Case No. 2570 as being
void and of no legal effect because their parents were not duly represented by
counsel of record. Petitioners further argue that they have never taken part in the
proceedings in Civil Case No. 2570 nor did they voluntarily appear or participate
in the case. It is unfair to bind them in a decision rendered against their deceased
parents. Therefore, being a void judgment, it has no legal nor binding effect on
petitioners.
 
Civil Case No. 2570 is an action for quieting of title with damages which is an
action involving real property. It is an action that survives pursuant to Section 1,
Rule 87[16] as the claim is not extinguished by the death of a party. And when
a party dies in an action that survives, Section 17 of Rule 3 of the Revised Rules of
Court[17] provides for the procedure, thus:
Section 17. Death of Party. - After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative
of the deceased to appear and to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be granted. If the legal representative
fails to appear within said time, the court may order the opposing party to procure
the appointment of a legal representative of the deceased within a time to be
specified by the court, and the representative shall immediately appear for and on
behalf of the interest of the deceased. The court charges involved in procuring
such appointment, if defrayed by the opposing party, may be recovered as costs.
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 guardian ad litem for the minor heirs. (Emphasis supplied)
 
Under the express terms of Section 17, in case of death of a party, and upon proper
notice, it is the duty of the court to order the legal representative or heir of the
deceased to appear for the deceased. In the instant case, it is true that the trial court,
after receiving an informal notice of death by the mere notation in the envelopes,
failed to order the appearance of the legal representative or heir of the deceased.
There was no court order for deceaseds legal representative or heir to appear, nor
did any such legal representative ever appear in court to be substituted for the
deceased. Neither did the respondent ever procure the appointment of such legal
representative, nor did the heirs ever ask to be substituted.
 
It appears that Eliseo Saligumba, Sr. died on 18 February 1984 while
Valeria Saligumba died on 2 February 1985. No motion for the substitution of the
spouses was filed nor an order issued for the substitution of the deceased
spouses Saligumbas in Civil Case No. 2570. Atty. Miralles and
petitioner Eliseo Saligumba, Jr., despite notices sent to them to appear, never
confirmed the death of Eliseo Saligumba, Sr. and Valeria Saligumba. The record is
bereft of any evidence proving the death of the spouses, except the mere notations
in the envelopes enclosing the trial courts orders which were returned unserved.
 
Section 17 is explicit that the duty of the court to order the legal representative or
heir to appear arises only upon proper notice. The notation Party-Deceased on
the unserved notices could not be the proper notice contemplated by the rule. As
the trial court could not be expected to know or take judicial notice of the death of
a party without the proper manifestation from counsel, the trial court was well
within its jurisdiction to proceed as it did with the case. Moreover, there is no
showing that the courts proceedings were tainted with irregularities.[18]
 
Likewise, the plaintiff or his attorney or representative could not be expected to
know of the death of the defendant if the attorney for the deceased defendant did
not notify the plaintiff or his attorney of such death as required by the rules. [19] The
judge cannot be blamed for sending copies of the orders and notices to defendants
spouses in the absence of proof of death or manifestation to that effect from
counsel.[20]
 
Section 16, Rule 3 of the Revised Rules of Court likewise expressly provides:
 

SEC. 16. Duty of attorney upon death, incapacity or incompetency of party. -

Whenever a party to a pending case dies, becomes incapacitated or incompetent, it
shall be the duty of his attorney to inform the court promptly of such death,
incapacity or incompetency, and to give the name and residence of his executor,
administrator, guardian or other legal representative.
 
It is the duty of counsel for the deceased to inform the court of the death of his
client. The failure of counsel to comply with his duty under Section 16 to
inform the court of the death of his client and the non-substitution of such party
will not invalidate the proceedings and the judgment thereon if the action survives
the death of such party. The decision rendered shall bind the partys successor-in-
interest.[21]
 
The rules operate on the presumption that the attorney for the deceased party is in a
better position than the attorney for the adverse party to know about the death of
his client and to inform the court of the name and address of his legal
representative.[22]
 
Atty. Miralles continued to represent the deceased spouses even after the latters
demise. Acting on their behalf, Atty. Miralles even asked for postponement of the
hearings and did not even confirm the death of his clients nor his appointment as
Municipal Circuit Trial Court judge. These clearly negate petitioners contention
that Atty. Mirallesceased to be spouses Saligumbas counsel.
 
Atty. Miralles still remained the counsel of the spouses Saligumbas despite the
alleged appointment as judge. Records show that when Civil Case No. 2570 was
called for trial on 25 October 1984, Atty. Miralles appeared and moved for a
postponement. The 25 October 1984 Order reads:
ORDER
Upon petition of Judge Miralles who is still the counsel on record of this case and
who is held responsible for anything that will happen in this case, postpone the
hearing of this case to JANUARY 25, 1985 AT 8:30 in the morning. x x x[23]
  
The trial court issued an Order dated 1 June 1984 directing the defendants to
secure the services of another counsel. This order was sent to Eliseo Saligumba, Sr.
by registered mail but the same was returned with the notation Party-
Deceased while the notice to Valeria Saligumba was returned with the notation
Party in Manila.[24] EliseoSaligumba, Sr. died on 18 February 1984. When
Atty. Miralles appeared in court on 25 October 1984, he did not affirm nor inform
the court of the death of his client. There was no formal substitution. The trial court
issued an order resetting the hearing to 25 January 1985 and directed that a copy of
the order be furnished petitioner EliseoSaligumba, Jr. at COA, PNB, Manila by
registered mail.[25] When the case was called on 25 January 1985,
Atty. Miralles sought for another postponement on the ground that his client was
sick and under medical treatment in Manila.[26] Again, there was no manifestation
from counsel about the death of Eliseo Saligumba, Sr. The trial court issued an
Order dated 25 January 1985 setting the reception of evidence for the defendants
on 3, 4, and 5 June 1985. A copy of this order was sent to Eliseo Saligumba, Jr. by
registered mail. Nonetheless, as the trial court in Civil Case No. 5288 declared, the
non-substitution of Eliseo Saligumba, Sr. did not have any legal significance as the
land subject of Civil Case No. 2570 was the exclusive property of
Valeria Saligumba who inherited it from her deceased parents.
 
This notwithstanding, when Valeria Saligumba died on 2 February 1985,
Atty. Miralles again did not inform the trial court of the death of
Valeria Saligumba. There was no formal substitution nor submission of proof of
death of Valeria Saligumba. Atty. Miralles was remiss in his duty under Section
16, Rule 3 of the Revised Rules of Court. The counsel of record is obligated to
protect his clients interest until he is released from his professional relationship
with his client. For its part, the court could recognize no other representation on
behalf of the client except such counsel of record until a formal substitution of
attorney is effected.[27]
An attorney must make an application to the court to withdraw as counsel, for the
relation does not terminate formally until there is a withdrawal of record; at least,
so far as the opposite party is concerned, the relation otherwise continues until the
end of the litigation.[28] Unless properly relieved, the counsel is responsible for the
conduct of the case.[29] Until his withdrawal shall have been approved, the lawyer
remains counsel of record who is expected by his client as well as by the court to
do what the interests of his client require. He must still appear on the date of
hearing for the attorney-client relation does not terminate formally until there is a
withdrawal of record.[30]
 
Petitioners should have questioned immediately the validity of the proceedings
absent any formal substitution. Yet, despite the courts alleged lack of jurisdiction
over the persons of petitioners, petitioners never bothered to challenge the same,
and in fact allowed the proceedings to go on until the trial court rendered
its decision. There was no motion for reconsideration, appeal or even an action to
annul the judgment in Civil Case No. 2570. Petitioners themselves could not feign
ignorance of the case since during the pendency of Civil Case No. 2570, petitioner
Ernesto Saligumba, son of the deceased spouses, was among the persons present
during the delimitation of the land in question before the Commissioner held on 5
November 1977.[31] Petitioner Eliseo Saligumba, Jr. was likewise furnished a copy
of the trial courts orders and notices. It was only the Answer filed by
petitioner Generoso Saligumbain Civil Case No. 5288 that confirmed the dates
when the spouses Saligumbas died and named the latters children.Consequently,
Atty. Miralles was responsible for the conduct of the case since he had not been
properly relieved as counsel of record. His acts bind his clients and the latters
successors-in-interest.
In the present case for revival of judgment, the other petitioners have not shown
much interest in the case. Petitioners Eliseo Saligumba, Jr. and
Eduardo Saligumba were declared in default for failure to file their answer.
Petitioner Ernesto Saligumba was out of the country working as a seaman. Only
petitioner Generoso Saligumba filed an Answer to the complaint. The petition filed
in this Court was signed only by petitioner Generoso Saligumba as someone signed
on behalf of petitioner Ernesto Saligumba without the latters authority to do so.
 
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 24 May
2000 of the Regional Trial Court, Branch 5, Kalibo, Aklan in Civil Case No. 5288.
Costs against petitioners.
 
SO ORDERED.
 
 
ANTONIO T. CARPIO
Associate Justice
 
WE CONCUR:
 
 
REYNATO S. PUNO
Chief Justice
Chairperson
 
 
 
RENATO C. CORONA ADOLFO S. AZCUNA
Associate Justice Associate Justice
 
DANTE O. TINGA
Associate Justice
 
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
 
 
 
REYNATO S. PUNO
Chief Justice
 
 
 
 
 
 
 
 
 

*
 As replacement of Justice Teresita J. Leonardo-De Castro who is on official leave per Special Order No. 539.
[1]
 Records of Civil Case No. 2570, p. 23.
[2]
 Id. at 31, Commissioners Report.
[3]
 Id. at 55.
[4]
 Id. at 102.
[5]
 Id. at 104-105.
[6]
 Id. at 108.
[7]
 Id. at 112.
[8]
 Id. at 115.
[9]
 Id. at 119-120.
[10]
 Records of Civil Case No. 5288, pp. 10-12.
[11]
 Id. at 25.
[12]
 Id. at 49.
[13]
 Panotes v. City Townhouse Development Corporation, G.R. No. 154739, 23 January 2007, 512 SCRA
269; Filipinas Investment and Finance Corporation v. Intermediate Appellate Court, G.R. Nos. 66059-60, 4
December 1989, 179 SCRA 728; Azotes v. Blanco, 85 Phil. 90 (1949).
[14]
 Juco v. Heirs of Toma Siy Chung Fu, G.R. No. 150233, 16 February 2005, 451 SCRA 464; Santana-Cruz v.
Court of Appeals, 414 Phil. 47 (2001).
[15]
 Baares II v. Balising, 384 Phil. 567 (2000).
[16]
 Section 1, Rule 87 of the Revised Rules of Court provides:
SECTION 1. Actions which may and which may not be brought against executor or administrator.
- No action upon a claim for the recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but actions to recover real or personal property, or an interest
therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury
to person or property, real or personal, may be commenced against him.
[17]
 Spouses Eliseo Saligumba, Sr. and Valeria Saligumba died before the effectivity of the 1997 Rules on Civil
Procedure. Section 17, Rule 3 of the Rules of Court was amended and is now Section 16, Rule 3 of the 1997 Rules
on Civil Procedure which reads:
Section 16. Death of a 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.
 
[18]
 Florendo, Jr. v. Coloma, 214 Phil. 268 (1984).
[19]
 Republic v. Bagtas, No. L-17474, 25 October 1962, 6 SCRA 262.
[20]
 Ang Kek Chen v. Judge Andrade, 376 Phil. 136 (1999).
[21]
 Benavidez v. Court of Appeals, 372 Phil. 615 (1999).
[22]
 Heirs of Maximo Regoso v. CA, G.R. No. 91879, 6 July 1992, 211 SCRA 348.
[23]
 Records of Civil Case No. 2570, p. 115.
[24]
 Id. at 104-105.
[25]
 Id. at 115.
[26]
 Id. at 119.
[27]
 Wack Wack Golf and Country Club, Inc. v. Court of Appeals, 106 Phil. 501 (1959).
[28]
 Visitacion v. Manit, 137 Phil. 348 (1969).
[29]
 Tumbagahan v. Court of Appeals, No. L-32684, 20 September 1988, 165 SCRA 485; Cortez v. Court of
Appeals, 172 Phil. 400 (1978).
[30]
 Orcino v. Gaspar, 344 Phil. 792 (1997).
[31]
 Records of Civil Case No. 2570, p. 31.