XIll, DISMISSAL OF ACTIONS Case No. 1 Ching vs. Cheng Facts: Petitioner Ramon Ching is the illegitimate and adopted child of Antonio and Lucina Santos while Joseph and Jaime are Antonio's children with his maid Mercedes Igne. Antonio owned several businesses before he was murdered having petitioner as the prime suspect. Respondents Joseph and Jaime filed a Complaint before the RTC which complaint was later amended for the annulment of agreement, waiver, extra-judicial settlement of estate, etc. against the petitioners. A Motion to Dismiss was filed by petitioner Po Wing based on the ground of lack of jurisdiction which the court granted and the judgment becomes final and executory due to the inaction of the respondents. Respondents for the second time filed a Complaint before the RTC which involves the same parties and the same cause of action, But before petitioners could file their responsive pleading, respondents filed @ Motion to Dismiss, praying that the case be dismissed but without prejudice. RTC granted the motion on the basis that summons had not yet served on petitioners. By which order, Petitioners file a Motion for Reconsideration. Respondents argued that the dismissal should have been with prejudice under the two-dismissal rule of Rule 17, Section 1 of the 1997 Rules of Court While petitioners’ motion for reconsideration was still pending, respondents for the third time filed a Complaint for Disinheritance and Declaration of Nullty of Agreement, etc. against the petitioners. Again, petitioners filed a Motion to Dismiss the third case on the ground of res judicata, litis pendentia, forum shopping, and failure to state cause of action which was denied by the trial court. Issue: Whether or not the dismissal of the second complaint is with or without prejudice as prayed for the respondents? Held ‘The dismissal is without. The “two-dismissal rule” are governed under Rule 17, sections 1, 2, and 3 of the 1997 Rules of Civil Procedure. There are three instances of dismissal which are all at the instance of the plaintiff. The first two are dismissals without prejudice unless otherwise declared by the court while the third is with prejudice. Section one states that before any responsive pleadings have been filed while section two states that where a counterclaim has been pleaded by the defendant before service on him the plaintiffs motion to dismiss, The third is due to plaintiff's fault such as failure to prosecute. ‘The first dismissal was at the instance of the petitioner then defendant while the second dismissal was at the instance of the respondents then plaintiff. Clearly, the dismissal of the second case, is one without prejudice, being done at the instance of the respondent for the first time.