Q: What is the duty of the counsel in case one of the parties/client in pending action dies?

A: The counsel of the deceased should inform the court regarding the death of his client within
30 days after the death of the client.

Q: If a party dies, what happens to the attorney-client relationship between the counsel and
his client?
A: It will be extinguished.

Q: If upon the death of the party, who is represented by a counsel, will the attorney-client
privilege continue, this time, between the heirs of the deceased party and the counsel?
A: NO. The retainment of the counsel of the deceased party as counsel of the heirs will not auto -
matically continue. The court cannot presume, upon the death of the party, the services of the
counsel of the deceased party will be retained by the heirs of the deceased party. It is the duty of
the counsel to inform the court about the death of the party.

Q: Is the attorney-client relationship automatic or is it required that it should be approved by

the heirs?
A: It is not automatic.

NOTE: Assuming that with or without the consent of the heirs of the deceased that repre-
sented by the same counsel, the duty of the counsel to inform the court about the death of his
client is mandatory. In fact, if the lawyer fails to inform the court, he will be sanctioned under
the rules.

Note further: The consent of the heirs is immaterial with respect of the duty of the counsel to
inform the court.

Q: What happens if the heirs would not want to be represented by the same counsel of their
ascendant?
A: The obligation of the counsel to inform the court remains but it does not necessarily enter his
appearance as counsel of the heirs of the deceased. If that happens and the heirs are not repre -
sented by counsel considering that they have not engaged the services of the previous counsel, it
will be the court that will require the heirs that they be represented by a counsel of their choice.
And, that they be substituted in lieu of the deceased party.

Q: What will be the effect if the counsel failed to inform the court about the death of the party
and a judgment was rendered against that party?
A: The effect of the failure to substitute, either formal of informal, would make the proceedings
null and void, even the judgment rendered therein.

Q: What if the court rendered a favourable judgment, will it have the same effect?
A: YES. The defendant can file an action to nullify the proceedings.
 Haberer vs. CA
G.R. Nos. L-42699-42709 May 26, 1981

DOCTRINE: When a party dies in an action that survives, and no order is issued by the court for
the appearance of the legal representative or of the heirs of the deceased in substitution of the
deceased, and as a matter of fact no such substitution has ever been effected, the trial held by the
court without such legal representatives or heirs and the judgment rendered after such trial are
null and void because the court acquired no jurisdiction over the persons of the legal representa -
tives or of the heirs upon whom the trial and the judgment would be binding.

FACTS: The cases originated whereby the original petitioner, the late Florentina Nuguid Vda
de Haberer filed 11 complaints against private respondents for recovery of parcels of lands lo-
cated in Mandaluyong Rizal. The CFI dismissed the complaint. Upon motion of petitioner, the
case was reopened and retried on the ground of newly discovered evidence. The decision was
then appealed to the appellant court wherein the said court dismissed the appeal on the
ground that it was filed out of time. The Supreme Court set asides the appellate court’s dis -
missal of the appeal and remanded it back to CA. On its pending appeal, appellant died. The
counsels then informed the court of the death of the appellant. Respondents then contends
that the lawyers of the deceased "no longer any legal standing and her attorneys could no
longer act for and in her behalf for the reason that their client-attorney relationship had been
automatically terminated or severed" and asked that the appeal be dismissed for failure to
prosecute. The appellant’s lawyers prayed for either the extension of time to file briefs for
they don’t know whether their services are still needed by the heirs, or suspension of the pe-
riod for the filing of briefs pending an appointment of executor of the estate of the deceased
client. The CA denied the request for extension and denied the appeal and further motions
filed by the appellant’s lawyers. Hence this petition.

ISSUE: Whether the respondent court erred in dismissing the case

RULING: Section 17, Rule 3 of the Rules of Court sets the rule on substitution of parties in case
of death of any of the parties. Under the Rule, it is the court that is called upon, after notice of a
party's death and the claim is not thereby extinguished, to order upon proper notice the legal
representative of the deceased to appear within a period of 30 days or such time as it may
grant. Since no administrator of the estate of the deceased appellant had yet been appointed
as the same was still pending determination in the Court of First Instance of Quezon City, the
motion of the deceased's counsel for the suspension of the running of the period within which
to file appellant's brief was well-taken. More, under the Rule, it should have set a period for
the substitution of the deceased party with her legal representative or heirs, failing which, the
court is called upon to order the opposing party to procure the appointment of a legal repre-
sentative of the deceased at the cost of the deceased's estate, and such representative shall
then "immediately appear for and on behalf of the interest of the deceased."

Respondent court gravely erred in not following the Rule and requiring the appearance of the
legal representative of the deceased and instead dismissing the appeal of the deceased who
yet had to be substituted in the pending appeal. Thus, it has been held that when a party
dies in an action that survives, and no order is issued by the court for the appearance of
the legal representative or of the heirs of the deceased in substitution of the deceased,
and as a matter of fact no such substitution has ever been effected, the trial held by the
court without such legal representatives or heirs and the judgment rendered after such
trial are null and void because the court acquired no jurisdiction over the persons of
the legal representatives or of the heirs upon whom the trial and the judgment would
be binding.
Ferrarria vs. Gonzales
G.R. No. L-11567, July, 17, 1958

DOCTRINE: The substitute defendant need not be summoned. The order of substitution shall be
served upon the parties substituted for the court to acquire jurisdiction over the substitute party.

RULING: In the present case, there is no question that there had been no court order for the
legal representative of Manuela Ibarra to appear, nor had any such legal representative ever
appeared in court to be substituted for the deceased; neither had complainant Ferreria ever
procured the appointment of such legal representative of the deceased, nor had the heirs of
the deceased, including Manolita ever asked to be allowed to be substituted for the deceased
Manuela. As a result, the hearings were held without the presence of Manolita Gonzales. True,
Atty. Emilio Fernandez, it seems, originally represented Manuela and apparently, Luis Tecson,
and continued within their representation, but Manolita now argues that with the death of
Manuela Ibarra, his relationship as counsel for Manuela ceased, and what is more, he was
never authorized to appear for Manolita Gonzales. Inasmuch as Manolita Gonzales was never
validly served a copy of the order granting the substitution and that, furthermore, a valid sub -
stitution was never effected, consequently, the court never acquired jurisdiction over Mano-
lita Gonzales for the purpose of making her a party to the case and making the decision bind-
ing upon her, either personally or as legal representative of the estate of her mother Manuela.

DISPOSITIVE PORTION: In view of the foregoing, we hereby set aside not only the writ of ex-
ecution, the resolution of the Agrarian Court and its order denying the motion for reconsider-
ation of the same, now sought to be reviewed, but also the original decision of the Tenancy Di -
vision for lack of jurisdiction. The case is hereby ordered remanded to the Court of Agrarian
Relations for further proceedings, in which proceedings, the Agrarian Court may bear in mind
and consider the rulings and holdings contained in this decision, specially with regards to sub-
stitution of parties and the liability of Luis Tecson in relation to any palay which Ferreria may
be found to be entitled to. No costs.

Q: Is the substitution of heirs a jurisdictional requirement? (CARANDANG VS. HEIRS OF DE

GUZMAN)
A: No.

Carandang vs. Heirs of De Guzman

G.R. No. 160347, November 29, 2006

FACTS: The Spouses Carandang and the decedent Quirino de Guzman were stockholders and
corporate officers of Mabuhay Broadcasting System (MBS). The Carandangs have equities at
54 % while Quirino has 46%. When the capital stock of MBS was increased, the Carandang
borrowed money from Quirino. When Quirico sent a demand letter to the Carandangs for the
payment of the loan, the Carandangs refused to pay. Thereafter, Quirino filed a complaint
seeking to recover the P336,375 total amount of the loan together with damages. The RTC
ruled in favor of Quirico and ordered the Carandangs to pay the loan plus interest, attorney’s
fees, and costs of suit. Carandangs argued that three of the four checks used to pay their stock
subscriptions were issued in the name of Milagros de Guzman, the decedent’s wife.
ISSUE: WON the RTC should have dismissed the case for failure to state a cause of action, con -
sidering that Milagros de Guzman, allegedly an indispensable party, was not included as a
party-plaintiff
RULING: NEGATIVE. In sum, the RTC Decision is valid despite the failure to comply with Sec-
tion 16, Rule 3 of the Rules of Court, because of the express waiver of the heirs to the jurisdic-
tion over their persons, and because there had been, before the promulgation of the RTC Deci-
sion, no further proceedings requiring the appearance of de Guzman’s counsel.

NOTE:
Now, with regard to the discussion on the effect of non-inclusion of parties in the complaint
filed: in indispensable parties, when an indispensable party is not before the court, the action
should be dismissed. The absence of an indispensable party renders all subsequent actuations
of the court void, for want of authority to act, not only as to the absent parties but even as to
those present. For necessary parties, the non-inclusion of a necessary party does not prevent
the court from proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. Non-compliance with the order for the inclu-
sion of a necessary party would not warrant the dismissal of the complaint. Lastly, for pro-
forma parties, the general rule under Section 11, Rule 3 must be followed: such non-joinder is
not a ground for dismissal. Hence, in a case concerning an action to recover a sum of money,
we held that the failure to join the spouse in that case was not a jurisdictional defect. The non-
joinder of a spouse does not warrant dismissal as it is merely a formal requirement which
may be cured by amendment.

CASES: General rule on substation vis-a-vis exception

In Haberer and Ferreira, the SC consistently held that if there is no formal substitution, then
all the proceedings in court are all considered nullity for the reason that the court was not
able to obtain jurisdiction over the person of the representatives or heirs of the deceased per -
son upon whom the judgment of the court would be binding. When a party dies in an action
that survives, and no order was issued by the court for the appearance of the legal representa-
tives or the heirs of the deceased in substitution of the deceased party, the trial held by the
court without such legal representatives or heirs of the deceased are rendered and consid-
ered null and void.

In Carandang, there was no court order for the legal representatives of the deceased to ap-
pear. Neither did the complainant procured appointment of such legal representatives of the
deceased including the appellant. The appellant in this case is never substituted for the de -
ceased. Also, there was no valid substitution effected during the case, hence, the court never
acquired jurisdiction over the appellant for the purpose of making her a party to the case and
making the decision binding upon her, either personally or thru a representative.

However, the Court said in this case that unlike jurisdiction over the subject matter which is
conferred by law and is not subject to the discretion of the parties, jurisdiction over the per-
son of the parties to the case may be waived expressly or impliedly. There is an implied
waiver when the party voluntarily appears or fails to object to the proceedings.

Unlike in the two cases above-mentioned where the court held the there is no really a valid
substitution, in Carandang, the Court held that there had been no valid substitution by the
heirs of the deceased party, and therefore the judgment cannot be made binding upon them.
In the case at bar, not only do the heirs of de Guzman interpose no objection to the jurisdiction
of the court over their persons; they are actually claiming and embracing such jurisdiction. In
doing so, their waiver is not even merely implied (by their participation in the appeal of said
Decision), but express (by their explicit espousal of such view in both the Court of Appeals
and in the SC. The heirs of de Guzman had no objection to being bound by the Decision of the
RTC.

Thus, the Court held that there was a waiver on the lack of jurisdiction over the person be-
cause of the non-formal substitution of legal representatives of the heirs because of the death
of the original party. The Court also emphasised that lack of jurisdiction over the person, be -
ing subject to waiver, is a personal defense which can only be asserted by the party who can
thereby waive it by silence.
The requirement of formal substitution of heirs is not a jurisdictional requirement. But rather
non-compliance result in the violation of due process of those who do not duly notified of the
proceedings are substantially affected by the decision rendered therein. Such violation of due
process can only be asserted by those persons whose rights are affected by the decision ren-
dered therein mainly to the heirs whom the adverse judgment is sought to be enforced.

NOTE: The cases of Haberer and Ferreira enunciates the general rule where non-compliance
with the substitution will rendered the decision not binding all the proceedings are all com-
plete nullity. If there is an express or implied waiver of failure of the court to acquire jurisdic -
tion over the persons of the parties, then the proceeding in the court will remain valid not-
withstanding that there is absence of formal substitution of the heirs as to the deceased party
( Carandang ruling expresses the exception to the general rule).

Qualifier: There is an action for recoveyance of real property. Plaintiff A and Defendant B are
the parties. During the pendency of the action, Defendant B sold the property to a Third Per-
son C.

Q:What will be the effect of the reconveyance or sale made by Defendant B to Third Person C
on the case pending before the court?
A: B will be subrogated by C.

Q: Can the case for reconveyance continue against B notwithstanding the sale?
A: Yes, the action can continue against B pursuant to Sec. 19 of Rule .

Q:Is it required that there must be an amendment made on the pleading so as to implead the
buyer as new defendant in the case?
A: No. It is not mandatory for the plaintiff to amend the complaint against the defendant or to
the new defendant impleaded in the case. He may continue on prosecuting the complaint against
B notwithstanding the sale to C, unless the court will direct the plaintiff to implead the new de -
fendant or jointly with the original defendant. Even though that there is conveyance made dur-
ing the pendency of the action, and later on judgment was rendered against the original defen -
dant, the transferee of the property will also be subject to the judgment rendered by the court in
that case although he may not been a party to the action. Hence, if the court ordered the recon -
veyance of property to the plaintiff, then the new defendant is bound by that judgment, because
the transferee stands exactly in the same position as that in predecessor-in-interest who is the
original defendant. The transferee, successor-in-interest, is not an indispensable party in the
case, hence, any judgment made by the court will remain to be valid. He is only a proper or for -
mal party in the case, nonetheless he is bound by the judgment against the original defendant,
the predecessor-in-interest.
SEE: Section 19, Rule 3 (Transfer of Interest)

Note: Under Sec. 19, the action may be continued by or against the original party.

INDIGENT PARTIES (Section 21, Rule 3)

The Constitution provides that everyone must have equal access to courts, whether moneyed
or not. Moreover, the poverty shall not bar any person from having any access to the courts.

Section 21 Rule 3 does not provide specific criteria for one to be allowed to litigate as an indi-
gent party. What the court required is that the party has no money or property sufficient or
available for food, shelter and basic necessities for himself and for his family.

Section 21 does not state how much money does a person must have in order to be consid -
ered an indigent party litigant.

However, Section 19 Rule 141 of the Rules of Court provides guidelines in determine whether
a party is an indigent or not.

SECTION 19, RULE 141- Indigent litigant exempt from payment of legal fees

Under Sec. 19, an indigent litigant is:

1. One whose income and that of the immediate family does not exceed the amount double of
the monthly minimum wage of an employee (Income Requirement); and
2. One who do not own real property with the fair market value as stated in the current text
declaration of more than P300,000 (Property Requirement).

Q: Considering the conflict between Sec. 21 of Rule 3 and Sec. 19 of Rule 141, what rule should
apply in the determination of who is an indigent party litigant?
A: Both must be applied. If the applicant for exemption meets the salary and property require-
ments under Section 19 of Rule 141, then the grant of the application is mandatory; such will be
a matter of right. On the other hand, when the application does not satisfy one or both require -
ments, then the application should not be denied outright; instead, the court should apply the
“indigency test” under Section 21 of Rule 3 and use its sound discretion in determining the merits
of the prayer for exemption.
 VENUE OF ACTIONS
Rule 4

CONCEPT: Venue refers to the place where a civil action may be tried; in civil cases, it essen -
tially concerns a rule of procedure which looks primarily at the convenience of the litigants.

Venue is procedural and not substantive. In civil cases, venue is not a matter of jurisdiction.
Venue becomes jurisdictional only in a criminal case. Hence, because it is merely procedural,
the parties can waive the venue of a case.

See: Definition of Personal and Real Actions

IMPORTANT NOTE: In order to know the venue of a particular action, the basic and initial
step is to determine if the action is personal or real. If it is personal, the venue is deemed tran -
sitory and thus, generally depends upon the residences of the parties. If it is real, the venue is
local and thus, generally, the venue is the place where the property or where any portion of
the same is situated.

Q: What is the rule in case of real action?

A: Real actions shall be commenced and tried in the proper court which has jurisdiction over
the area wherein the real property involved, or a portion thereof is situated.

NOTE: Forcible entry and detainer actions shall be commenced and tried in the municipal
court of the municipality or city wherein the real property involved, or a portion thereof, is
situated. [Sec. 1, Rule 4]

Q: Can the parties stipulate the venue other then the place where the property is situated in a
real action?
A: Yes. The parties may stipulate on the venue as long as the agreement is (a) in writing, (b)
made before the filing of the action, and (3) exclusive as to the venue.

Q: The parties stipulated that the venue of the real action will be in Tuguegarao City, and the
property is located in Aparri, where is the venue of the action?
A: In Tuguegarao City.

Q: The case was filed in Aparri notwithstanding the stipulation that the venue should be in
Tuguegarao City, then the defendant bases as an affirmative defense the impropriety of venue
invoking the stipulation that the venue will be in Tuguegarao City, if you were the judge, how
will you act on the defense raised by the defendant?
A: I will sustain the defense. Although there was a stipulation by the parties regarding the
venue which is in Tugugegaro City, it is not exclusively stipulated by the parties that it must
only be filed in Tuguegarao City. Hence, such stipulation is only treated merely as permissive.

Q: What will make the venue exclusive in Tuguegarao City?

A: To be restrictive, there must be accompanying language clearly and categorically express-
ing their purpose and design that actions between them be litigated only at the place named
by them. E.g, “only,” “solely ” “exclusively in this court,” “in no other court save “particularly,”
“nowhere else but/except or words of equal import xxx

Example: Parties agreed that the venue should be in Tugugerao City in exclusion of all other
courts. In this case, the case must be filed only in the proper courts of Tuguegarao City. With-
out those qualifying restrictive words, the stipulation should be deemed only as an agreement
of an additional forum not limiting venue to that particular place.

Note: In one case decided by the SC, the parties stipulated that the action must be filed in
Manila. The Court held that the venue is not exclusive in Manila. So, when the venue is not ex -
clusive, the agreed venue is considered only as merely an additional option for the plaintiff
aside from the residence of the parties. This is in case of personal action.

Ochoa vs. China Banking Corporation

G.R. No. 192877, March 23, 2011

DOCTRINE: The exclusive venue of Makati City, as stipulated by the parties and sanctioned by
Section 4, Rule 4 of the Rules of Court, cannot be made to apply to the Petition for Extrajudicial
Foreclosure filed by respondent bank because the provisions of Rule 4 pertain to venue of ac -
tions, which an extrajudicial foreclosure is not. Unlike an action, an extrajudicial foreclosure of
real estate mortgage is initiated by filing a petition not with any court of justice but with the of-
fice of the sheriff of the province where the sale is to be made.

FACTS: Petitioner and Respondent Bank entered into a real estate mortgage contract which
involves a property located in Parañ aque City, further, said contract stipulates that their ex-
clusive venuewill be Makati City. Due to some events, respondent bank foreclosed the real es-
tate mortgage of the petitioner. Respondent Bank was able to acquire a special power to fore-
close extrajudicially the said property in Parañ aque. Respondent Court filed a Petition for Ex-
trajudicial Foreclosure ofMortgage, which was filed with the Paranaque Court. (Not Makati)
The case was later on appealed to CA which ruled that the stipulated exclusive venue ofMakati
City is binding only on petitioners’ complaint for Annulment of Foreclosure, Sale, and Dam-
ages filed before the Regional Trial Court of Parañ aque City , but not on respondent bank’s Pe-
tition for Extrajudicial Foreclosure of Mortgage, which was filed with the same court. Petition-
ers insist that CA erred in ruling as such.

ISSUE: WON the stipulated rules on venue between the parties apply to petition for extrajudi-
cial foreclosure of mortgage

RULING: NEGATIVE. The extrajudicial foreclosure sale of a real estate mortgage is governed
by Act No. 3135, as amended by Act No. 4118, otherwise known as "An Act to Regulate the
Sale of Property Under Special Powers Inserted In or Annexed to Real-Estate Mortgages." Sec-
tions 1 and 2 thereof clearly state:

Section 1. When a sale is made under a special power inserted in or attached to any real-estate
mortgage hereafter made as security for the payment of money or the fulfillment of any other
obligation, the provisions of the following sections shall govern as to the manner in which the
sale and redemption shall be effected, whether or not provision for the same is made in the
power.

Sec. 2. Said sale cannot be made legally outside of the province in which the property sold is
situated; and in case the place within said province in which the sale is to be made is the sub-
ject of stipulation, such sale shall be made in said place or in the municipal building of the mu-
nicipality in which the property or part thereof is situated.

The case at bar involves petitioners’ mortgaged real property located in Parañ aque City over
which respondent bank was granted a special power to foreclose extra-judicially. Thus, by ex-
press provision of Section 2, the sale can only be made in Parañ aque City.

The exclusive venue of Makati City, as stipulated by the parties and sanctioned by Section 4,
Rule 4 of the Rules of Court, cannot be made to apply to the Petition for Extrajudicial Foreclo-
sure filed by respondent bank because the provisions of Rule 4 pertain to venue of actions,
which an extrajudicial foreclosure is not.

Venue in personal actions

All other actions may be commenced and tried, at the plaintiff’s election:
a. Where the plaintiff or any of the principal plaintiffs resides, or
b. Where the defendant or any of the principal defendants resides, or
c. In case of a non-resident defendant, where he may be found. [Sec. 2, Rule 4]

Q: Does the term “resides” in relation to venue of personal action equivalent to the term
“domicile”?
A: No. The term “resides” as employed in the rule means the place of abode, whether permanent
or temporary, of the plaintiff or defendant, as distinguished from “domicile” which denotes a
fixed permanent residence to which, when absent, one has the intention of returning. The resi -
dence of a person is his personal, actual or physical habitation or his actual residence or place of
abode, which may not necessarily be his legal residence or domicile provided he resides therein
with continuity and consistency.

NOTE: For purposes of venue in personal actions, the most important thing, is the determina-
tion of where the parties actually resides or where the party may be actually be found at the
time that the action was commenced.

Mixed Actions- real action plus personal action

Q: In case of mixed actions, what is the rule on venue?

A: The case shall be commenced on the place where the property is situated regardless of the
residence of the parties.

Q: What will be the rule if the defendant is non- resident?

A: Non-resident found in the Philippines
a. Personal action: where the nonresident defendant may be found, as authorized by Sec. 2, Rule
4, but with an additional alternative venue, i.e., the residence of any of the principal plaintiffs,
pursuant to Secs. 2 and 3, Rule 4.
b. Real action: in the proper court which has jurisdiction over the area wherein the real property
involved, or a portion thereof is situated. [Sec. 1, Rule 4]
Non-resident not found in the Philippines, and the action affects:
a. Personal status of plaintiff – where plaintiff resides, or
b. Property of defendant in the Philippines – where the property, or any portion thereof, is situ -
ated or found [Sec. 3, Rule 4]

Q:There is a case for declaration of nullity of marriage and the defendant’s spouse is a non-
resident of the Philippines, where will the petitioner files the petition?
A: It should be filed in the place where the petitioner resides .

Q: In the above case, will the court be precluded from proceeding with case considering that
the defendant is a non-resident in the Philippines?
A: No. In annulment case, when the court does not acquire jurisdiction over the person of the
defendant, it will not preclude the court from rendering a valid judgment because the case in-
volves the personal status of the plaintiff, and jurisdiction over his person is not required be-
cause the said case is an action quasi in rem. Hence, the proceedings in the court will not be
affected notwithstanding the failure to acquire jurisdiction over the person of the defendant.

UnionBank vs. Maunlad Homes

G.R No. 190071, August 15, 2012

FACTS: Union bank entered into a Contract to Sell with Maunlad Homes over the Maunlad
Shopping Mall in Bulacan. Unionbank allowed Maunlad Homes to take possession of the prop-
erty. Eventually, Maunlad Homes failed to pay the monthly instalments. Unionbank sent a no-
tice of rescission and demand letters but all were unheeded. This led Unionbank to file an ac-
tion of ejectment against Maunlad Homes. Maunlad Homes questions the venue since the con-
tested party is in Bulacan. It cited Section 1 of Rule 4 of the Rules of Court. Unionbank, coun -
ters that because there was a venue stipulation in their contract which states that the venue of
all suits and actions arising out of or in connection with this Contract to Sell shall be at Makati
City.”, Section 4 of Rule 4 of the Rules of Court shall apply.

ISSUE: WON the venue is properly laid

RULING: AFFIRMATIVE. While Section 1, Rule 4 of the Rules of Court states that ejectment ac-
tions shall be filed in “the municipal trial court of the municipality or city wherein the real
property involved x x x is situated,” Section 4 of the same Rule provides that the rule shall not
apply “where the parties have validly agreed in writing before the filing of the action on the
exclusive venue thereof.” Precisely, in this case, the parties provided for a different venue. In
Villanueva v. Judge Mosqueda, etc., et al., the Court upheld the validity of a stipulation in a con-
tract providing for avenue for ejectment actions other than that stated in the Rules of Court.
Since the unlawful detainer action is connected with the contract, Union Bank rightfully filed
the complaint with the MeTC of Makati City.

Q: One of the defenses raised by the defendant in the complaint was the impropriety of venue.
The court granted the dismissal of the action on the ground of improper venue. Is the dis -
missal of the complaint on that ground with merits?
A: No. It was similarly ruled that a court may not dismiss an action motu proprio on the ground
of improper venue as it is not one of the grounds wherein the court may dismiss an action motu
proprio on the basis of the pleadings.
Q: What will be the remedy of the plaintiff?
A: Refiling of the complaint in the proper venue. The dismissal based on improper venue is with-
out prejudice.

Q: How do you consider the dismissal order on the ground of impropriety of venue?
A: General Rule: An order denying a motion to dismiss is merely interlocutory. It is not final.
Only final orders or judgments may be appealed from. Exception: However, if the denial is
tainted with grave abuse of discretion amounting to lack of jurisdiction, the remedy is certiorari
and prohibition.

Q: What is the remedy against an interlocutory order?

A: The normal remedy is to file an answer and interpose the ground as an affirmative defense, go
to trial and appeal from the adverse judgment.

Q: What is the counterpart of interlocutory order?

A: Final order.

Q: What is the difference between final order and interlocutory order?

A: Interlocutory order is not appealable, while a final order can be the subject of an appeal. An
order is considered final if after the court issues the same, there is nothing else more for the
court to do. An order is interlocutory if after the court issues the same, there is something to
be done before that court.

NOTE: If the court dismisses the complaint on the ground of improper venue, it is a final order
because after the court issues such order, the court has nothing else to do because it already
dismissed the complaint. If it is considered interlocutory, there still be proceedings to be ob -
served. The dismissal of the action on the ground of improper venue, however, is without
prejudice, because it is nit considered a judgment on the merits. Even in the event of the dis -
missal of the complaint on the ground of improper venue, the plaintiff can always refile the
case.

Q: The complaint was filed and the claim of improper venue was not raised by the defendant
but on the face of the complaint it appears that there was the venue was improperly laid, can
the court motu proprio order the dismissal of the complaint?
A: No. Venue is not jurisdictional since the purpose of the same is only for the convenience of the
parties. Moreover, there can be also waiver of improper venue. If a defendant fails to raise it as
an affirmative defense in his Answer, then it is already considered a waiver.
 PLEADINGS
Rule 6

CONCEPT: Pleadings are the written statements of the respective claims and defenses of the
parties, submitted to the court for appropriate judgment [Sec. 1, Rule 6]

Q: Is a motion considered as a pleading?

A: No. A motion is an application for relief other than by a pleading [Sec. 1, Rule 15]

Q: Are documents and exhibits annexes appended in the pleadings considered pleadings?
A: No. They are considered part of the pleadings. Documents and annexes do not strictly fall un -
der the definition of pleadings. In fact, under the present rules, it is required to append documen -
tary exhibits in the pleadings .

SEE: Section 2

AMENDEMENT: Under the third paragraph of Rule 6 Section 2, with respect to a Reply. The
rule is very particular that the plaintiff may only file a reply if the defending party attaches an
actionable document to the Answer for the reason that all other allegations made by the de-
fendant in his Answer are deemed controverted or denied.

General Kinds of Pleadings

1. Initiatory Pleadings
2. Responsive Pleadings

Q: Is the initiatory pleading always filed by the plaintiff?

A: No. The defendant can also file an initiatory pleading by means of a Counter Claim specifically
permissive counterclaims.

COMPLAINT- The complaint is the pleading alleging the plaintiff’s or claiming party’s cause or
causes of action. [Sec. 3, Rule 6]

Q: What should be alleged in the complaint?

A: Name and residences of the plaintiff and the defendant. Legal conclusions is not required
to be alleged in the complaint. Cause of action must be stated; legal basis supporting the cause
of action is not required to be alleged in the complaint. What is required are ultimate facts.