LECTURE BY ATTY. FLORANTE A.

ZAGADA

RULE 3

Parties to Civil Actions

SECTION 1. Who may be parties; plaintiff and defendant. — Only natural or

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

In every civil action, there are parties involved, the one suing and the one being
sued.

Who are these parties?

Plaintiff – he is a claiming party. He is counter claimant, cross claimant, third party

plaintiff, etc. Defendant – the one defending as party.

Parties maybe natural or juridical persons and entities authorized by law.

Natural person: Juan de la Cruz vs. Pedro Penduko

Juridical persons: State and its political subdivisions, corporations and partnership
registered with SEC. Examples: Republic of the Phils. vs. . Juan Tamad; Pedro
Mariano vs. Solid State Multi Product.

Entities authorized by law: Corporation by estoppel Under Art. 21 Corp. Law,

unregistered partnership with capital of P3thou or more, estate of deceased person,
legitimate labor org.,

Who maybe party plaintiff or party defendant?

1. In case of natural person:

a) Must be of legal age with capacity to act. (Art. 37, NCC)

b) Husband and wife. ( Sec. 4)
c) Minor or incompetent (Sec. 5)
d) Non Resident. (Rule 4, Sec. 3, Rule 15, Sec. 15)
 2. In case of juridical persons:

a) State and political subdivisions. (Art X, Sec. 1, 1987 Constitution.

Rule: It can sue but cannot be sued without its consent. Art XVI, Sec., 3, 1987
Constitution. This is known as State Immunity from Suit. The consent must be given
expressly or impliedly. There is an express consent with the law expressly granting
authority to sue the State or any of its agencies.

There is implied consent in the following:

1. When the State enters into a private contract.(Nat’l Airport

Corp. vs. Teodor Sr., 91 Phil 203, 207 (1952)
2. When the State enters into a business operation, unless it
does so as a necessary incident of its prime government
functions.(Royal Insurance Co. vs. American Pioneer Line,
21 SCRA 847 (1967).
3. When the State sues a private party, unless the suit is
entered into only to resist a claim. (Froilan vs. Pan Oriental
Shipping Co., 95 Phil 905 (1954)

4. When there is failure to abide by what the contract or law

requires. (Ministerio vs. CFI of Cebu, 40 SCRA 464. (1971)

b) Other corporations, institutions and entities for public interest and

purpose created by law. This includes government owned and
controlled corporations. Example: PNOC, PAGIBIG, etc.

c) Corporations and partnerships and associations for private

interest and purposes which the law grants a juridical personality.

d) Mere association of persons not possessing juridical personality

cannot sue or be sued. Not registered with the SEC. When suing
them, make all members parties to the action. Except when they
fall under Sec. 15 and Sec. 12 hereof.
e) Foreign juridical entity. It can be sued under Rule 14, Sec. 12)

-If regularly doing business in the Philippines but not registered

with the SEC, it cannot sue.
-If it conducts an isolated business, transaction, not regular, it
needs no license, it can sue.

f) Entities authorized by law but lack juridical personality. Labor

unions registered with DOLE but not with SEC.
SECTION 2. Parties in interest. — A real party in interest is the party who
stands to be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit. Unless otherwise authorized by law or these
Rules, every action must be prosecuted or defended in the name of the real
party in interest. (2a)

Rule: Every action must be prosecuted or defended by a real party in interest.

Not every party has the right to sue and can be sued in court. The parties to the suit
either as plaintiff or defendant must be a REAL PARTY IN INTEREST.

Who are these real parties in interest?

a) The one who owns the right violated and who suffered the injury as a
consequence of such violation. He is the real party of interest as plaintiff.

b) The who caused the violation of plaintiff’s right resulting to his injury?
He is the real party of interest as defendant.

Both of these parties will be affected by the judgment of the suit.

The real party of interest as plaintiff will be benefited by the judgment but –
the real party in interest as defendant will be injured by the judgment.

Examples of real party in interest:

1. In contracts – the parties stated in the contract. Doctrine of relativity of

contracts under Art 1311 of the NCC, that contracts takes effect only between
parties, their assigns and successor in interests.

2. Contract of Agency - the principal unless the agent acted in his own name.

3. Corporation law – the corporation itself as a separate legal entity and not
the members of the board or stockholders.

4 Partnership law – the partnership not the manager of the partnership

involving the property of the partnership.

5. Ejectment – any one of the co-owners may bring the action. (Art 487 of
NCC)

6. Annulment of sale – the vendee who will be affected by the judgment.

 7. In Nullity of Marriage – the spouses and not the parent.

Examples of who are not real parties in interest:

1. An attorney-in-fact. Sue the principal not his attorney in fact. (Arroyo vs.
Granada. 18 Phil. 484 (1911); De leon vs. Calrino 49 OG 5474 (1953)

2. And agent of a disclosed principal. (Macia vs. Warner Barnes Ltd., 88 Phil
125)

3. The general Manager of the bank who did not exceed his power as
manager for the bank. (Yuseco vs. Simmons, 97 Phil, 487 (1955)

WHAT IS THE EFFECT OR REMEDY IF THE PARTY IMPLEADED IS NOT A REAL

PARTY IN INTEREST?

1. Where the plaintiff is NOT a natural or juridical persons, or entity

authorized by law, a motion to dimiss maybe filed on the ground that “plaintiff has
no legal capacity to sue.” (Sec. 1 (d), Rule 16, Rules of Court.) However, under
2019 Rule 8, Sec. 12 (a) No. 3, the defendant must raise this as an affirmative
issue in his or her answer as a ground: That the plaintiff has no legal capacity.

Example: ABC Corporation which is unregistered filed a suit against D, for

damages. D may file answer raising the same as an affirmative issue in the
Answer for lack of legal capacity of ABC Corp being not a juridical person.

Example: A lessee using the name of a company in the contract as a party

which is unregistered.

2. Where the defendant is not any of the above, the ground of dismissal is
“the claim states no cause of action” or “failure to state a cause of action” because
there is no cause of action against one who is not a real party in interest. (Sec 1 (g),
Rule 16)

Illustrative Example: A filed a nullity of marriage against B who is not her

husband. Since the defendant is not her husband, he is not a real party in interest so
B may file an Answer raising that issue as his affirmative defense for failure to state
a cause of action.

3. Where the plaintiff has a capacity to sue but he is not a real party in
interest, the ground for dismissal is “FAILURE TO STATE A CAUSE OF ACTION. and
not “lack of legal capacity to sue.”(Aguila vs. CA, 319 SCRA 69)
SECTION 3. Representatives as parties. — Where the action is allowed to be
prosecuted or defended by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the case and shall be
deemed to be the real party in interest. A representative may be a trustee of
an express trust, a guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging to the principal.
(3a)

A party may sue or be sued through a representative.

A representative party – is one who is allowed by the law to prosecute or

defend an action for the beneficiary.

-The beneficiary must be included in the title of the case as a real party in
interest.

Example: Marianne de Vera (minor) represented by Josephine Rivera,

(Mother or Atty in fact). It should not be Josephine Rivera representing Marriane de
Vera. The suit must be prosecuted in the name of Marriane de Vera being the real
party in interest.

EFFECT: If the action is not prosecuted by the real party in interest, the
ground for dismissal is FAILURE TO STATE A CAUSE OF ACTION.

Who are these representatives?

a) Trustee of an express trust – when there is a trust agreement.

b) Guardian – representing the ward.

c) Executor – involving the estate of the deceased named in a will and

testament. Administrator – the one appointed by the court in the letters
administration.

d) Parties authorized by the law such as:

1. Assignee – in insolvency proceedings
2. Receiver
3. Pledgee – to collect and receive credit due which has been pledged.
Art 2118, NCC)
4. Any co-owners may bring an action for the co-ownership.
5, Agent in his own name for the benefit of an undisclosed principal
except when the property of principal is involved.
SECTION 4. Spouses as parties. — Husband and wife shall sue or be sued
jointly, except as provided by law. (4a)

When you sue a wife for collection of sum of money, will you include the husband?

General rule: Husband and wife must sue or be sued jointly.

Reasons: Both spouses are co-administrators of their community of property under

the absolute community of property (Art 96, FC).

Exception is provided by the Family Code:

a) When judicially separated. (Art 63 , FC)

b) When there is judicial separation of property. (Art 101,FC)

c) When there is separation of property during marriage settlements. (Art 75,

FC)
d) Litigation between husband and wife

e) If the suit concerns the exclusive property of each spouse. (Art 111, FC).

In case of action for quasi-delict or civil damages arising from a crime, the other
spouse must be joined as party so that the liability can be enforced against the
community of property in case of insufficiency of exclusive property.

In case of non-joinder of the other spouse, it is not a jurisdictional defect. The court
may order the joinder of the spouse. The complaint maybe amended and failure to
join the other spouse, the complaint maybe dismissed under Rule 17, Sec. 4 of the
RRC for failure to comply with the court order.

SECTION 5. Minor or incompetent persons. — A minor or a person alleged to

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

Can you sue a minor alone? Can a minor sue alone?

Rules:

A minor is one whose is under 18 years old. (RA 6809)

In case of minors, they should be represented by their parents in the suit.

Example: Miguel Aguas (minor) represented by his mother, Fe Aguas., plaintiff or
defendant.)
-Incompetent – a person not insane but by reason of old age, disease, weakness of
mind, or other causes, he is not competent to take care of himself or manage his
property and would be liable to be deceived by artful or designing persons. In case of
incompetent, they should sue or be sued with their guardians or guardian
appointed ad litem.

Guardian ad litem is one whose appointment as such is procured by an interested

party for the purpose of the suit by or against minor or incompetent party litigant.
Incompetent need not be judicially declared as such in order that the court may
appoint a guardian ad litem.

SECTION 6. Permissive joinder of parties. — All persons in whom or against

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

Note: Already explained in Rule 2, Sec. 5 and 6, on Joinder of Causes of Action.

SECTION 7. Compulsory joinder of indispensable parties. — Parties in

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

In what instance a party must be joined as party to the case? This means
compulsory joinder of party.

Answer: In case of Indispensable party. He must be a real party in interest, he must

be the one who stands to be benefited or injured by the judgment of the suit or party
entitled to the avails of the suit. His interest in the subject matter of the suit and the
relief sought is inextricably intertwined with other parties that his presence in
the proceeding is an absolute necessity.

There cannot be an effective, complete and equitable resolution of the dispute

between the parties in his absence. The judgment of the court cannot attain finality
in his absence.
EXAMPLE:

A donated his property to B and C. When A died, A’s second wife, D, filed an
annulment of the deed of donation alleging that A, deceased donor, at the time of
donation was pressured and forced by B and C. But the wife only filed an action
against B without impleading C, a co-donee. In this case, C should be impleaded
because he is an indispensable party. There cannot be an effective, complete and
equitable resolution of the dispute between the parties in his absence and C will be
injured by the suit.

Another example: A filed an annulment of title registered in the names of B and C.

But A impleaded B only in the case without C. C as part owner must be impleaded
also because C is an indispensable party.

WHAT IS THE EFFECT IF AN INDISPENSABLE PARTY IS NOT IMPLEADED IN THE

CASE?

Joinder of indispensable party is compulsory and not permissive; otherwise, the

case should be dismissed.

Can you file a motion to dismiss for not impleading an indispensable party?

Answer: The failure to include the indispensable party is not a ground for motion to
dismiss. But it is the failure to comply with the order of the court to implead the said
party.

Outright dismissal of the complaint is not an immediate remedy authorized by the

Rules because the non joinder of parties is not a ground for the dismissal of an
action. Instead, misjoined or omitted party maybe added by the order of the
court in its motion or by the motion of the other party. (Pamplona Plantation vs.
Tinghil, 450 SCRA 21)

The responsibility of impleading the indispensable party rests on the plaintiff and
the defendant does not have the right to compel the plaintiff to prosecute the action
against a party if he does not wish to do so, but the plaintiff will have to suffer the
consequences of any error he might commit in exercising his option. (Uy vs. CA, 494
535).

But if the plaintiff is required to implead the indispensable party as defendant and
should he fail to do so, the petition should be dismissed for failure to comply with
the order of the court. (Sec. 3, Rule 17, RRC)
 ILLUSTRATIVE CASE:

Luis had three daughters with his first wife namely, Anicita, Cynthia
and Teresa. Luis second wife is named Victoria. During the lifetime of
Luis, he executed a Deed of Donation in favor of Cynthia and Teresa
covering Proprietary Ownership Certificate No. 0272 of the Cebu
Country Club, Inc.

Luis passed away on 11 February 1999. On 15 June 1999, Victoria

filed a Complaint for Declaration of Nullity of the Deed of Donation
with Prayer for Issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order against Cynthia and Teresa with the
RTC. Victoria alleged in her complaint that on 17 March 1997, Luis
made a written declaration wherein he stated that due to his illness
and forgetfulness, he would not sign any document without the
knowledge of his lawyer, Atty. Francis Zosa and that Luis was already
very ill and no longer of sound and disposing mind. She alleged also
that Cynthia and Teresa, conspiring and confederating with each
other, fraudulently made or caused to be fraudulently made a Deed of
Donation whereby they made it appear that Luis donated to them.

The Sheriff served the summonses on Cynthia and Teresa but Teresa
was personally served the summons. She filed her Answer with
counterclaim with the RTC. Subsequently, Teresa filed a motion to
dismiss the case because of petitioner's failure to prosecute her
action for an unreasonable length of time.

Victoria opposed the motion and filed her own motion to set the case
for pre-trial, to which Teresa filed her rejoinder on the ground that
their sister, Cynthia, an indispensable party, had not yet been served a
summons. Thus, Teresa prayed for the dismissal of petitioner's
complaint, as the case would not proceed without Cynthia's presence.
The trial court granted the motion to dismiss and denied the motion
for reconsideration and Victoria appealed the same to the CA until it
reached the SC.

1) Whether a co-donee is an indispensable party in an action to

declare the nullity of the deed of donation, and (2) whether delay in
the service of summons upon one of the defendants constitutes failure
to prosecute that would warrant dismissal of the complaint.

RULING OF THE SC:

“A Court must acquire jurisdiction over the persons of indispensable

parties before it can validly pronounce judgments personal to the
parties. Courts acquire jurisdiction over a party plaintiff upon the
filing of the complaint. On the other hand, jurisdiction over the person
of a party defendant is assured upon the service of summons in the
manner required by law or otherwise by his voluntary appearance. As
a rule, if a defendant has not been summoned, the court acquires no
jurisdiction over his person, and a personal judgment rendered
against such defendant is null and void. A decision that is null and
void for want of jurisdiction on the part of the trial court is not a
decision in the contemplation of law and, hence, it can never become
final and executory.

Rule 3, Section 7 of the Rules of Court, defines indispensable parties as

parties-in-interest without whom there can be no final determination
of an action. As such, they must be joined either as plaintiffs or as
defendants. The general rule with reference to the making of parties
in a civil action requires, of course, the joinder of all necessary parties
where possible, and the joinder of all indispensable parties under any
and all conditions, their presence being a sine qua non for the exercise
of judicial power. It is precisely "when an indispensable party is not
before the court [that] the action should be dismissed." The absence of
an indispensable party renders all subsequent actions of the court null
and void for want of authority to act, not only as to the absent parties
but even as to those present.

As we ruled in Alberto v. Mananghala: In an action for recovery of

property against a person who purchased it from another who in turn
acquired it from others by the same means or by donation or
otherwise, the predecessors of defendants are indispensable parties if
the transfers, if not voided, may bind plaintiff. (Garcia vs. Reyes, 17
Phil. 127.)

If such a declaration of annulment can directly affect the persons who

made and who were concerned in the said transfers, nothing could be
more proper and just than to hear them in the litigation, as parties
interested in maintaining the validity of those transactions, and
therefore, whatever be the nature of the judgment rendered,
Francisco Reyes, Dolores Carvajal, Alfredo Chicote, Vicente Miranda,
and Rafael Sierra, besides the said minors, must be included in the
case as defendants." (Garcia vs. Reyes, 17 Phil., 130-131.)

It takes no great degree of legal sophistication to realize that Cynthia

and Teresa are indispensable parties. Cynthia and Teresa allegedly
derived their rights to the subject property by way of donation from
their father Luis. The central thrust of the petitioner's complaint in
Civil Case No. CEB 23927 was that Luis could not have donated
Proprietary Ownership Certificate No. 0272 to his daughters Cynthia
and Teresa, as Luis was already very ill and no longer of sound and
disposing mind at the time of donation on 15 May 1997. Accordingly,
the prayer in petitioner's complaint was for the trial court to declare
null and void the Deed of Donation and to restrain the Cebu Country
Club, Inc. from transferring title and ownership of Proprietary
Ownership Certificate No. 0272 to Cynthia and Teresa.

Thus, based on the Deed of Donation, Teresa and Cynthia are co-
owners of Proprietary Membership Certificate No. 0272 of Cebu
Country Club, Inc. The country club membership certificate is
undivided and it is impossible to pinpoint which specific portion of
the property belongs to either Teresa or Cynthia. Indeed, both Teresa
and Cynthia are indispensable parties.

An indispensable party has been defined as follows:

An indispensable party is a party who has such an interest in the

controversy or subject matter that a final adjudication cannot be
made, in his absence, without injuring or affecting that interest, a
party who has not only an interest in the subject matter of the
controversy, but also has an interest of such nature that a final
decree cannot be made without affecting his interest or leaving
the controversy in such a condition that its final determination
may be wholly inconsistent with equity and good conscience. It
has also been considered that an indispensable party is a person
in whose absence there cannot be a determination between the
parties already before the court which is effective, complete, or
equitable. Further, an indispensable party is one who must be
included in an action before it may properly go forward.

A person is not an indispensable party, however, if his interest in

the controversy or subject matter is separable from the interest
of the other parties, so that it will not necessarily be directly or
injuriously affected by a decree which does complete justice
between them. Also, a person is not an indispensable party if his
presence would merely permit complete relief between him and
those already parties to the action, or if he has no interest in the
subject matter of the action. It is not a sufficient reason to declare
a person to be an indispensable party that his presence will avoid
multiple litigation.

In Servicewide Specialists, Incorporated v. Court of Appeals, this Court

held that no final determination of a case could be made if an
indispensable party is not legally present therein:
 An indispensable party is one whose interest will be affected by the
court's action in the litigation, and without whom no final
determination of the case can be had. The party's interest in the
subject matter of the suit and in the relief sought are so
inextricably intertwined with the other parties that his legal
presence as a party to the proceeding is an absolute necessity. In
his absence there cannot be a resolution of the dispute of the
parties before the court which is effective, complete, or equitable.

The rationale for treating all the co-owners of a property as

indispensable parties in a suit involving the co-owned property is
explained in Arcelona v. Court of Appeals: “As held by the Supreme
Court, were the courts to permit an action in ejectment to be
maintained by a person having merely an undivided interest in any
given tract of land, a judgment in favor of the defendants would not be
conclusive as against the other co-owners not parties to the suit, and
thus the defendant in possession of the property might be harassed by
as many succeeding actions of ejectment, as there might be co-owners
of the title asserted against him. The purpose of this provision was to
prevent multiplicity of suits by requiring the person asserting a right
against the defendant to include with him, either as co-plaintiffs or as
co-defendants, all persons standing in the same position, so that the
whole matter in dispute may be determined once and for all in one
litigation.

Applying the foregoing definitions and principles to the present case,

this Court finds that any decision cannot bind Cynthia, and the Court
cannot nullify the donation of the property she now co-owns with
Teresa, even if limited only to the portion belonging to Teresa, to
whom summons was properly served, since ownership of the
property is still pro indiviso. Obviously, Cynthia is an indispensable
party without whom the lower court is barred from making a final
adjudication as to the validity of the entire donation. Without the
presence of indispensable parties to a suit or proceeding, a judgment
therein cannot attain finality.

Being an indispensable party in case, the trial court must also acquire
jurisdiction over Cynthia's person through the proper service of
summons. (VICTORIA REGNER, petitioner, vs. CYNTHIA R. LOGARTA,
TERESA R. TORMIS and CEBU COUNTRY CLUB, Inc., respondents. [G.R.
No. 168747. October 19, 2007.] THIRD DIVISION

SECTION 8. Necessary party. — A necessary party is one who is not

indispensable but who ought to be joined as a party if complete relief is to be
accorded as to those already parties, or for a complete determination or
settlement of the claim subject of the action. (8a)

Necessary party is a party who must be joined so that complete relief is to be

accorded as to those already parties and so that there is complete determination or
settlement of the claim subject to the action.

Necessary party must joined whenever possible unlike indispensable party must be
joined under all conditions.

Purpose: The purpose of joining a necessary party is to adjudicate the whole

controversy or to accord complete relief to those already parties in order to avoid
multiplicity of suits, so this party is OUGHT TO BE JOINED.

EXAMPLE:

A suit filed by the creditor against JOINT debtors. All the joint debtors whenever
possible must be joined in a suit to avoid multiplicity of suit.

ILLUSTRATIVE EXAMPLE:

1. JOINT OBLIGATION -

A and B borrowed from C the amount of P400,000 and signed

promissory note which states: “We promise to pay C the amount of
P400,000 on or before Dec. 1, 2009.” A and B failed to pay and C would
like to file to recover the said amount.

May C sue A alone? Yes, but C can only recover P200,000 because the
obligation is joint.

Is A an indispensable party? Yes, with respect to the P200,000 but not for
the other pertaining to C.

Is B an indispensable party in a suit filed by C against A? No, B is only a

necessary party because C can collect the P200,000 from A even without
suing B. But for C to have a complete relief or adjudication of the entire
P400,000, he must include B in the suit he filed against A.

Therefore, for C to collect the entire P400,000, so that there will be

complete relief and adjudication of the case in the promissory note, C
must sue A and B together in a complaint.
 2. SOLIDARY OBLIGATION –

But if the obligation is SOLIDARY, C can sue A alone to collect the

P400,000 even without suing B because the latter is not a necessary
party anymore. C can collect the entire amount from A because the
obligation of A is solidary in character.

3. FORECLOSURE OF MORTGAGE:

A buys a car from C in the amount of P500,000 in installment basis. A

thereafter sells the car to B with the agreement that B shall pay the
amortization. The amortization is not paid. C files a foreclosure and
replevin against B, the possessor. Can C sue B for foreclosure?

Answer: No. because A (buyer ad mortgagor) being an indispensable

party must be impleaded in the suit. The foreclosure is premised on the
fact that A failed to pay the installment. C cannot run after B without
establishing that A defaulted in the payment of amortization. Except
when there is an assignment by A to B with the consent of C.

A transferee of the property pendente lite is not an indispensable party because it

would in any event liable for the outcome of the case against his predecessor.

Action of unlawful detainer by a co-owner. The other co-owner is not indispensable,

necessary party only.

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

pleading in which a claim is asserted a necessary party is not joined, the pleader
shall set forth his name, if known, and shall state why he is omitted. Should the court
find the reason for the omission unmeritorious, it may order the inclusion of the
omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (8a, 9a)

WHAT IS THE EFFECT OF NON JOINDER OF NECESSARY PARTY in the case?

Answer: It does not prevent the court from proceeding with the case against the
party chosen to be sued. The presence of the necessary party not sued is not
required for the FINAL DETERMINATION of the case.
How a Non-Joinder of necessary parties be pleaded?

a) The Court may order the inclusion of the omitted necessary party if
jurisdiction over his person maybe obtained. If the party ordered failed to include
the said omitted party, it shall be deemed a waiver of the claim against such party.

Example: Joint debtors. Only one is sued and the other is omitted. The
court may require the other joint debtor to be pleaded or included but if
the plaintiff fails to do so, it constitutes waiver of his right to claim against
such party.

b) Non inclusion of such necessary party (1) does not prevent the court from
proceeding in the action, and, (2) judgment rendered therein is without prejudice to
the right of the necessary party.

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

This refers to the unwillingness of co-plaintiff to be included in the complaint when

his presence is required so that there is a complete determination the case.

The other party must be requested to join as plaintiff. If he refuses, he should be

included as defendant but the reason must be stated in the pleading.

Example: A and B are creditors of C for P100,000.00. A wants to sue C but B refuses.
B is necessary party if complete relief is to be had in the action. If B refuses, he
maybe impleaded as one of the defendants but the reason must be stated in the
pleading.

Example: In a Partition case. The other co-owners refuse to file partition. Implead
those who refuse as defendants but no need to state the reason.

SECTION 11. Misjoinder and non-joinder of parties. — Neither misjoinder nor

non-joinder of parties is ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are just. Any claim
against a misjoined party may be severed and proceeded with separately.
(11a)

Misjoinder of party refers to impleading a party to the action when he is not

supposed to be included in the suit because he is neither an indispensable or a
necessary party.
This does not cause the dismissal of the complaint. The said misjoined party may
just be dropped from the cause as maybe ordered by the court.

Non-joinder of party. It is failure to join the party to the suit when he is supposed to
be joined as indispensable or necessary party – This does not also cause the
dismissal of the complaint but he maybe added by the order of the court upon
motion of the interested party.

Any claim against a misjoined party may be severed and proceeded with separately.
(11a)

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

NOTES:

For class suit to prosper, the elements are:

a) The subject matter of the controversy must be common or general

interest to many persons.

b) The persons are numerous that it is impracticable to join all as parties.

c) The parties actually before the court are sufficiently numerous and
representative as to fully protect the interests of all concerned.

d) The representative sue or defend for the benefit of all.

- there must be commonality or unity of interest be it law or of

facts.

- Common or general interest in the subject matter of the suit. The

interest of the parties must not be conflicting.

Illustrative examples:

1. Action brought by sugarcane plantation workers of Hacienda Tinago on

behalf of its members, directed against all sugarcane planters and to recover 60%
share of the planters of refined sugar is a CLASS SUIT. (Independent Sagay Escalante
Planters Inc. vs. NLRC, 207 SCRA 352).

2. In Oposa vs. Factoran Jr.,(224SCRA 792) petitioners who are minors sought
to prevent the misappropriation or impairment of Phil. rainforests and arrest
unabated hemorrhage of the country’s vital life support system and rape of mother
earth. SC said these minors can for themselves and for the succeeding generations.

NOT A CLASS SUIT:

1. When their interests of the parties in the subject matter are conflicting.
The action brought by 17 residents of a town with a population of 2,460 persons to
recover possession of a holy image not a class suit. Plaintiffs do not represent
membership of the churches they support to represent because other are opposed
to its recovery. (Ibanes vs. Roman Catholic Church, 12 Phil 227)

2. When parties have interest only in the particular portion of the land he is
occupying and not those occupied by others. (Ortigas & Company vs. Ruiz, 148 SCRA
326)

3. When plaintiffs have separate and distinct reputation in the community

and do not have general interest on the subject matter of controversy.

SECTION 13. Alternative defendants. — Where the plaintiff is uncertain against

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

NOTES:

This gives the plaintiff right to include as alternative several possible defendants
when he is uncertain against which of them he is entitled to relief.

EXAMPLE: When owner of the goods is not sure whether his good were lost in
transit or while on deposit in the warehouse of the arrastre operator, he may sue
the shipper or the operator in the alternative.

SECTION 14. Unknown identity or name of defendant. — Whenever the

identity or name of a defendant is unknown, he may be sued as the unknown
owner, heir, devisee, or by such other designation as the case may require;
when his identity or true name is discovered, the pleading must be amended
accordingly. (14)
SECTION 15. Entity without juridical personality as defendant. — When two or
more persons not organized as an entity with juridical personality enter into a
transaction, they may be sued under the name by which they are generally or
commonly known.

In the answer of such defendant, the names and addresses of the

persons composing said entity must all be revealed. (15a)

If two or more persons organized themselves as a corporation but they are not
registered as a corporation or partnership with the SEC, they maybe sued under the
name of their corporation which they are known to the public under which they
entered into transaction.

Example: A, B. C, D without registering as partnership entered into a transaction

under “Maharlika Trading Corp, they maybe sued as such but when they file their
answer, they have to reveal their names and addresses.

SECTION 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. (16a, 17a)

Notes:

What happens if during the trial of the case, a party (either plaintiff or
defendant) dies?
 Gen. Rule: Attorney and client relationship is extinguished. The dead client has
no personality to be represented in court and the authority of the lawyer to appear
for the deceased client is automatically extinguished.

A dead client has no personality and can no longer be represented by his counsel.
Unless the heirs continued to hire him to represent them.

The court cannot compel the lawyer to continue with the trial after the lawyer has
notified the court of such death. Otherwise, the proceedings are null and void and
the court would have no jurisdiction over the estate. (Lawas vs. CA. 146 SCRA 173)

EXCEPTIONS:

1. There is a contract for the lawyer’s services up to the final judgment.

2. When the lawyer’s fees are on a contingent basis.
3. When the lawyer’s appearance is coupled with interest. (Regoso vs. CA,
211 SCRA 348)

What is the duty of the counsel upon the death of client? Answer: Whenever a
party to a pending action dies, and the claim is not thereby extinguished, it is duty of
the counsel (attorney of the deceased party) to inform the court of such fact (death)
within 30 days after such date.

Thus duty is mandatory and his failure is subject to disciplinary action.

An
1. What is the action of the court upon being informed of such death by
the party?
swer: The court will determine whether or not the claim is extinguished by
such death. If the CLAIM SURVIVES, the court shall order the legal
representative of the deceased to appear and be substituted for the deceased
within 30 days from notice.

What if the CLAIM DOES NOT SURVIVE? Answer: There is NO order of

substitution and the case is dismissed.
-
2. Is there a need to amend the pleadings to effect such
substitution of the deceased by his representative? How about service of
summons?

Answer: There is no need to amend the pleadings to effect substitution of

the deceased by his representative or heir.
It is effected by court’s order of substitution requiring said representative or heir to
appear and be substituted within 30 days from notice. It is the service of the order
of the court upon the substitute which would enable the court to acquire jurisdiction
over him. No requirement or need of service of summons.

3. What happens if there is no legal representative who appears or

refuses to appear for the deceased?

Answer: If no legal representative appears as named by the counsel or if one so

named refuses to appear within the specified period, the court may order the
opposing party to procure the appointment of an executor or administrator for the
estate of the deceased person and the said executor or administrator shall appear in
behalf of the deceased. The expenses in procuring executor maybe recovered as
costs by the opposing party.

4. What is the effect if this rule is not complied with?

Answer: Non compliance with the rule of substitution of deceased party

renders the proceedings void because the court acquired no jurisdiction over the
person of the legal representative or heirs of deceased.(Brioso case, G.R No. 132765,
Jan 31, 2003)

5. When is substitution of party not required if the party dies during

the proceedings?

Answer: No substitution of deceased party when action is PURELY PERSONAL

in nature (like action for support or nullity of marriage, annulment and legal
separation ) or does not survive upon the death of the party. Thus, the case should
be dismissed.

6. What are the examples of actions which survive with the deceased?

a) Actions and obligations arising from delicts. (Aguas vs. Llamas, 5

SCRA 959)

b) Action based on tortious conduct of defendant. (Melgar vs.

Buenviaje, 179 SCRA 196)

c) Action to recover real and personal property, action to enforce a

lien thereon and actions to recover damages for an injury to
person or property or suit based on alleged tortious acts of
defendants. (Board of Liquidators vs. Kalaw, 20 SCRA 987)

d) Action for quieting a title with damages in action involving real

property. (Saligumba vs. Calanog, G.R. No. 143365, Dec. 4, 2008)
 e) Ejectment case survives the death of a party because ethe issue
regarding the illegality of defendant’s possession is still alive and
upon its resolution depends the corollary issue of whether and
how much damages maybe recovered. ( Florendo Jr. vs. Coloma,
129 SCRA 304)

f) Action to recover money, arising from contract express or implied

are not extinguished by the death of defendant. (Sec. 20, Rule 3,
Rules of Court)

What are the RULES when DEATH OF A PARTY DURING THE PENDENCY OF
ACTION OCCURS:

1) If PLAINTIFF DIES DURING THE PENDENCY OF CASE, including on appeal.

(Sec. 16 and 20, Rules of Court)

a) The Action survives and continues, except

when action is purely personal to him such as action for support, legal separation,
annulment of marriage, which is extinguished with the death.

b) Deceased plaintiff shall be substituted by legal heirs or representatives.

(Lapuz vs. Eufemio, 43 SCRA 177 (1972)

2. IF DEFENDANT DIES DURING THE PENDENCY OF THE CASE, the

effect of his death defends upon the nature of the pending action:

a) When the action against him is purely PERSONAL TO HIM, (support,

legal separation, annulment of marriage) the claim is extinguished and the
action is dismissed.

b) When the action is on contractual money claims such as recovery of

money (collection of sum of money) arising from contract, express or
implied, and defendant dies before the entry of judgment in which the action
is pending - SHALL NOT BE DISMISSED, instead allowed to continue until
entry of final judgment. The plaintiff may enforce the favorable judgment
in accordance with the Rules on prosecuting claims against the estate of a
deceased.(Sec. 20, Rule 3, RRC, this renders obsolete the doctrine in Paredes
vs. Moya, 61 SCRA 526))
 Since the action survives, deceased shall be substituted by legal
representatives of the deceased defendant.

If the plaintiff as creditor obtains a favorable judgment, he should file

his claims based on money judgment in the estate proceedings, for the
settlement of estate of the defendant. If there is no estate proceedings, the
judgment creditor may initiate such proceeding and file his claim thereto.

3.) IF DEFENDANT DIES AFTER ENTRY OF FINAL JUDGMENT and the

writ of execution has already been issued but the sheriff has NOT YET LEVIED
any of the properties of the deceased defendant. Sheriff SHALL NOT
PROCEED WITH THE LEVY. Plaintiff should file money claim on the estate
proceedings for the settlement of estate of deceased defendant, using money claim
as judgment. (Rule 86, Sec. 5)

-If no estate proceedings yet, plaintiff may initiate to file the same and file his
claim therein.

4. If defendant dies AFTER entry of final judgment and levy on his property,
then the judgment shall be enforced by a writ of execution. (Rule 39, Sec.7 ©, by
proceeding with the sale of the levied property of the deceased defendant.

References: Rule 3, Sec. 20

Rule 87, Sec. 1
Rule 86, Sec. 5
Rule 39, Sec. 7

Applying the aforesaid rules, the procedure are as follows:

e) If the action against the DEFENDANT is for RECOVERY OF REAL OR

PERSONAL PROPERTY or to enforce a lien on real or personal property, like
action to foreclose real estate or chattel mortgage, the ACTION SURVIVES and
shall continue. The deceased must be substituted by his heirs or legal
representatives.

But when the judgment against the defendant becomes final and executory,
the said judgment can be enforced or executed against the executor or
administrator of the estate of the deceased defendant. (Rule 39, Sec. 7 (b).

f) If the action against the defendant is for RECOVERY OF DAMAGES for INJURY
TO PERSON OR PROPERTY and the defendant dies during the pendency of the
action, the action SURVIVES and shall continue.
 The heirs of the defendant must be substituted.

Once the judgment becomes final and executory, said judgment is actually for
sum of money so that it could not be enforced against the executor or administrator
(Rule 87, Sec. 1), Remedy: File the judgment AS MONEY CLAIM in the estate
proceedings for the settlement of estate of the deceased using judgment as proof of
the basis of such claim and, if no estate proceedings, plaintiff may initiate it and file
his claim.

If defendant dies AFTER ENTRY OF THE FINAL JUDGMENT against him and
after levy was made on his property, the judgment shall be enforced by proceeding
with the sale of his levied property. (Rule 39, Sec. 7)

Note: Under the 1997 Rules, whether the defendant dies during the trial or on
appeal, the rule is the same, as long as the action survives, it continues until finality
of the decision.

SECTION 17. Death or separation of a party who is a public officer.

— When a public officer is a party in an action in his official capacity and

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

Comment:

May the action filed against a Public Officer, sued in his official capacity, who dies,
resigns or ceases hold office during the pendency of the case, continue?

Answer: Yes under the following conditions:

a) the action may be continued and maintained by or against his successor,

if within thirty (30) days after the successor takes office or such time as
may be granted by the court.

b) It must be satisfactorily shown to the court by any party that there is a

substantial need for continuing or maintaining it.
 c) and that the successor adopts or continues or threatens to adopt or
continue the action of his predecessor

SECTION 18. Incompetency or incapacity. — If a party becomes incompetent

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

COMMENT:

If a party becomes incompetent or incapacitated, the action survives and

maybe continued by or against the incompetent or incapacitated person assisted by
his legal guardian or guardian ad litem who is legal representative.

Example: A sues B but during the pendency of the action B suffers stroke and
becomes incapacitated. The action may still be continued against B but he must be
assisted by his guardian, and if none, a guardian ad litem maybe appointed in that
case.

SECTION 19. Transfer of interest. — In case of any transfer of interest, the

action may be continued by or against the original party, unless the court
upon motion directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party. (20)

COMMENT:

The joinder of or substitution by the transferee is not mandatory under this section.
The transferee pendent lite does not have to be included or impleaded by name in
order to be bound by the judgment. While it is proper to have the transferee
substituted for the original party, the original plaintiff, if successful in the litigation,
would hold the fruits of the action as a sort of a trustee for the use and benefit of his
transferee.

Likewise, the transferee of the original defendant is bound by the judgment against
the latter. In short, transferee pendent lite is a proper party in the case but not an
indispensable party. (Jocson vs. CA, 183 SCRA 589 (1990)

EXAMPLE:

A sues B for the recovery of a real property. A notice of lis pendens was registered
by A. During the pendency of the case, B sold the property to C. Is there a need to
join C in the action so that he maybe bound by the judgment? There is no need
according to Sec. 19.
SECTION 20. Action on contractual money claims. — When the action is for
recovery of money arising from contract, express or implied, and the
defendant dies before the entry of final judgment in the court in which the
action was pending at the time of such death, it shall not be dismissed but
shall instead be allowed to continue until the entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in the
manner especially provided in these Rules for prosecuting claims against the
estate of a deceased person. (21a)

Note: As discussed in Sec. 16, Rule 3.

SECTION 21. Indigent party. — A party may be authorized to litigate his action,
claim or defense as an indigent if the court, upon an ex parte application and
hearing, is satisfied that the party is one who has no money or property
sufficient and available for food, shelter and basic necessities for himself and his
family.

Such authority shall include an exemption from payment of docket and

other lawful fees, and of transcripts of stenographic notes which the court may
order to be furnished him. The amount of the docket and other lawful fees
which the indigent was exempted from paying shall be a lien on any judgment
rendered in the case favorable to the indigent, unless the court otherwise
provides.

Any adverse party may contest the grant of such authority at any time
before judgment is rendered by the trial court. If the court should determine
after hearing that the party declared as an indigent is in fact a person with
sufficient income or property, the proper docket and other lawful fees shall be
assessed and collected by the clerk of court. If payment is not made within the
time fixed by the court, execution shall issue or the payment thereof, without
prejudice to such other sanctions as the court may impose. (22a)

COMMENT:

Who is an INDIGENT? One who has no money or property sufficient and available
for food, shelter and basic necessities for himself and his family. (Sec. 21. Also, Acar
vs. Rosal, 19 SCRA 625, March 18, 1967)

BASIS of this PROVISION: Art III, Sec. 11 of the 1987 Constitution.

Section 11. Free access to the courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any person by reason of poverty.
RULE WHEN THE INDIGENT WINS: Legal fees shall be alien on any judgment if he
wins, unless otherwise provided by the court.

WHEN GRANTED? Upon ex parte application in court and hearing. This maybe
contested by the adverse party at anytime before judgment is rendered. If false
statement were made by the applicants to file such application, the court can
impose sanctions on him such as dismissal of the complaint and require him to pay
the legal fees.

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

Notes:

Solicitor General as lawyer of the government can bring or defend actions on behalf
of the RP – otherwise action filed in the name of RP if not initiated by SG should be
summarily be dismissed.

Action involving the validity of any treaty, law, ordinance, executive order,
presidential decree, rules or regulations – Solicitor General must be must be notified
about the case who maybe heard in person or through representative.

Annulment or nullity of marriage – Sol Gen is the lawyer for the government and
allowed to intervene. Fiscal is deputized to appear for them.