Trial, Consolidation, Demurer to evidence

1. VICENTE YU, plaintiff-appellant, vs. EMILIO MAPAYO, defendant-appellee.

G.R. No. L-29742 March 29, 1972

REYES, J.B.L., J.:p

Appeal from an order of the Court of First Instance of Davao City, Branch II (Judge Alfredo I. Gonzalez presiding),
rendered in its Civil Case No. 4018, dismissing plaintiff's action for lack of prosecution.

The case originally started in the City Court of Davao, Branch II, where appellant therein had filed suit to recover
from defendant Emilio Mapayo the sum of P2,800, representing the unpaid balance of the purchase price of a Gray
Marine Engine sold by the plaintiff to the defendant, plus attorney's fees. The answer admitted the transaction and
the balance due but contended that by reason of hidden defects of the article sold, the defendant had been forced to
spend P2,800 for repairs and labor, wherefore plaintiff had agreed to waive the balance due on the price of the
engine, and counterclaimed for damages and attorneys' fees. The City Court, after trial, disallowed the defenses and
ordered the defendant to pay plaintiff P2,500.00 and costs (Record on Appeal, pages 9-16).

Defendant Mapayo appealed to the Court of First Instance, filing an answer therein that was a virtual reproduction
of his original defenses in the City Court. When, after several continuances, the case was called for hearing on 13
March 1968, the defendant, as well as his counsel, failed to appear and the court scheduled the case for hearing ex
parte on the same day. The Court ordered plaintiff to present his evidence, and from the unchallenged stenographic
notes quoted in appellant's brief, pages 11-14 (Transcript, pages 4-7), the following transpired:

ATTY. LOZANO:

If your Honor please, before I present my witness I should like to present the issue
because all the allegations of the complaint are admitted and I am going to specify by
the answer, your Honor. (Emphasis supplied)

COURT:

The issue is void on the hidden defect.

ATTY. LOZANO:

That is why, if your Honor please, the point if your Honor please, is I do not have to
prove that there is a gasoline engine that was taken by the defendant from the
plaintiff for an agreed amount of P6,800.00 because the allegation in paragraph 1,
No. 2 and No. 3, is admitted in the answer.

In other words, if your Honor please, the promissory note in the amount of
P2,800.00 ... (interrupted by court).

COURT:

Wait a minute, are you going to present evidence or not?

ATTY. LOZANO:

Will you please give me a chance, if your Honor please, because my purpose is, it will
turn out that it will be the defendant to present evidence to prove that there is
hidden defect. He admitted the allegation, he admitted that there is a balance of
P2,800.00; it is not paid by him but at the same time he said that there is a hidden
defect.

In other words, if your Honor please, it should be the defendant to present the
evidence ... (interrupted by court).

COURT:

Are you going to present evidence, substantial, oral, or not? Answer the question of
the Court.

ATTY. LOZANO:

If your Honor please, on the complaint, on the allegation of the complaint, all are
admitted by the defendant ... (interrupted by court).

COURT:

The attorney does not answer the question of the Court.

Answer the question, are you going to present evidence OR NOT AND SUBMIT THE
CASE ON THE PLEADINGS. (Capitals supplied)

ATTY. LOZANO:

Would you please allow me, your Honor, because in the answer of the defendant ...
(interrupted by court)

COURT:

I do not need discussion; I want you to answer the question of the

Court.

ATTY. LOZANO:

I am not going to present my evidence yet because this moment I am submitting my

evidence on the pleading until after the defendant will present evidence and I reserve
my right to present rebuttal evidence. (Emphasis supplied)

COURT:

Make it of record that the attorney refuses to present evidence either oral or
documentary when required by the Court.

ATTY. LOZANO:

Motion for reconsideration, if your Honor please, that is not what I said, if your
Honor please, I manifested that it should be the defendant to prove first, to present
evidence and we reserve our right to present rebuttal evidence, if your Honor
please. (Emphasis supplied).

COURT:

All right, denied.

 Submit the case for the consideration of the Court.

The court then issued an order on the same day in the following terms (Record on Appeal, page 24):

ORDER

Make it of record that the attorney for the plaintiff refuses to present evidence, either oral or
documentary, when required by the Court.

Submit the case for the consideration of the Court.

SO ORDERED.

A motion for reconsideration having been filed by counsel for plaintiff, it was denied by the court by an order of 21
March, and the case was dismissed for lack of prosecution (Record on Appeal, pages 34-35), the trial judge
reasoning that —

When the case is called for trial on 19 March 1968, defendants counsel asked again for another
postponement of the trial on the ground that defendant and his witnesses were not able to come for
lack of transportation, notwithstanding a stern warning by the Court, per its order of 9 March 1968
that it would not entertain further motion for continuation of trial. Counsel for the plaintiff
vehemently objected to such motion and insisted in presenting his evidence which the Court grants
inspite of another civil case and one miscellaneous case which were ready for hearing at the same
time.

Court ordered the plaintiff to present his evidence. Plaintiff's counsel refused to comply with said
order. Instead of calling his witnesses, he moved the Court to present them after the defendant had
presented their evidence. The court asked said counsel twice whether he would present his
evidence for the plaintiff, but said counsel refused to do so and sticked to his demand that he would
introduce his witnesses only in rebuttal. This is dictation to the Court to disregard its lawful
command and a violation of the order of trial provided in the Rules of Court.

This is an appealed case from the Municipal Court elevated to this Court on 18 May 1963 and from
that time several postponement were granted at the instance of the parties which cause delay and
is detrimental to the interest of justice.

IN VIEW WHEREOF, let this case be dismissed for failure to prosecute on the part of counsel for the
plaintiff without pronouncement as to costs.

Finding defendant's counterclaim not meritorious, same is also dismissed.

SO ORDERED.

Further motions to reconsider having proved futile, the plaintiff appealed.

We find for plaintiff-appellant. Since the answer admitted defendant's obligation as stated in the complaint, albeit
special defenses were pleaded, plaintiff had every right to insist that it was for defendant to come forward with
evidence in support of his special defenses. Section 2 of Revised Rule of Court 129 plainly supports appellant:

Sec. 2. Judicial admissions.— Admissions made by the parties in the pleadings, or in the course of the
trial or other proceedings do not require proof and can not be contradicted unless previously
shown to have been made through palpable mistake.
While this appeal is not a complaint against the presiding judge, We can not refrain from observing that the trial
judge's despotic and outrageous insistence that plaintiff should present proof in support of allegations that were
not denied but admitted by the adverse party was totally unwarranted, and was made worse by the trial judge's
continual interrupting of the explanations of counsel, in violation of the rules of Judicial Ethics.

Defendant not having supported his special defenses, the dismissal of the case was manifestly untenable and
contrary to law.

WHEREFORE, the appealed order of dismissal is hereby revoked and set aside, and the court below is directed to
enter judgment in favor of plaintiff and against the defendant for the sum of P2,800.00, plus attorney's fees which
this Court considers just and reasonable (Civil Code, Article 2208, paragraph 11). Costs against defendant-appellee.

Let a copy of this decision be furnished the Honorable, the Secretary of Justice, for his information and action.

Concepcion, C.J., Makalintal, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Zaldivar, J., took no part.

2. G.R. No. L-20089 December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO X. VELEZ, defendant-appellant.

BENGZON, J.P., J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and
serious endeavors, but terminated in frustration and, what is worse, complete public humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set
September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be:

Dear Bet —

Will have to postpone wedding — My mother opposes it. Am leaving on the Convair today.

Please do not ask too many people about the reason why — That would only create a scandal.

Paquing

But the next day, September 3, he sent her the following telegram:

NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE .

PAKING

Thereafter Velez did not appear nor was he heard from again.

Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before
the clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay
plaintiff P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees;
and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new
trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and
their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of
arriving at an amicable settlement." It added that should any of them fail to appear "the petition for relief and the
opposition thereto will be deemed submitted for resolution."

On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a
motion to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would
confer with defendant in Cagayan de Oro City — the latter's residence — on the possibility of an amicable element.
The court granted two weeks counted from August 25, 1955.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but
that defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and
their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that
chances of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this
Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set
aside the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an
amicable settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly
supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.)
Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid
defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to
fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions
or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand
Bros., L-15800, December 29, 1960.)

Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage,
because the judgment sought to be set aside was null and void, it having been based on evidence adduced before
the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the
procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now
Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be
obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs.
Court of First Instance, L-14557, October 30, 1959).

In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to
law. The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to
marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs.
Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. We
pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would
have it so.

It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with
impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the
damage."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage,
which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were
printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party
drsrses and other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the maid of honor
and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given
and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28
years old,: simply left a note for plaintiff stating: "Will have to postpone wedding — My mother opposes it ... " He
enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired plaintiff: "Nothing
changed rest assured returning soon." But he never returned and was never heard from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an
actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity,
only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and
unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance
with Article 21 aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to
the award of actual damages. What defendant would really assert hereunder is that the award of moral and
exemplary damages, in the amount of P25,000.00, should be totally eliminated.

Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases
mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be
adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the
defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of
merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless
[and] oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this
case, P15,000.00 as moral and exemplary damages is deemed to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed,
with costs.

3. SUPERLINES TRANSPORTATION CO., INC. and ERLITO LORCA, Petitioners, v. HON. LUIS L. VICTOR, Judge
Presiding over Branch XVI of the Regional Trial Court of Cavite, TIMOTEA T. MORALDE, CAYETANO T.
MORALDE, JR., ALEXANDER T. MORALDE, EMMANUEL T. MORALDE, and JOCELYN MORALDE
ABELLANA, Respondents.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; JUDICIAL ECONOMY AND ADMINISTRATION AS WELL AS CONVENIENCE OF THE
PARTIES; CONSIDERATIONS FOR CONSOLIDATION OF CASES IN THE CASE AT BAR. — There is, however, a more
pragmatic solution to the cotroversy at bar; and that is to consolidate the Gumaca case with the Cavite case.
Considerations of judicial economy and administration, as well as the convenience of the parties for which the
rules on procedure and venue were formulated, dictate that it is the Cavite court, rather than the Gumaca court,
which serves as the more suitable forum for the determination of the rights and obligations of the parties
concerned. As observed by both the trial and appellate courts, to require private respondents who are all residents
of Kawit, Cavite, to litigate their claims in the Quezon Court would unnecessarily expose them to considerable
expenses. On the other hand, no like prejudice would befall the defendants transportation companies if they were
required to plead their causes in Cavite, for such change of venue would not expose them to expenses which are
not already liable to incur in connection with the Gumaca case.

2. ID.; PURPOSE AND OBJECT OF PROCEDURE. — The whole purpose and object of procedure is to make the
powers of the court fully and completely available for justice. The most perfect procedure that can be devised is
that which gives opportunity for the most complete and perfect exercise of the powers of the court within the
limitations set by natural justice. It is that one which, in other words, gives the most perfect opportunity for the
powers of the count to transmute themselves into concrete acts of justice between the parties before it. The
purpose of such a procedure is not to restrict the jurisdiction of the court over the subject matter, but to give it
effective facility in righteous action. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate
the application of justice to the rival claims of contending parties. It was created not to hinder and delay but to
facilitate and promote the administration of justice. It does not constitute the thing itself which courts are always
striving to secure to litigants. It is designed as the means best adapted to obtain that thing. In other words, it is a
means to an end. It is the means by which the powers of the court are made effective in just judgments. When it
loses the character of the one and takes on that of the other the administration of justice becomes incomplete and
unsatisfactory and lays itself open to grave criticism." (Manila Railroad Co. v. Attorney-General, 20 Phil. 523)

DECISION

ESCOLIN, J.:

A petition for certiorari to set aside the decision of the Intermediate Appellate Court in CA-G.R. No. SP-00708
entitled "Superlines Transportation Co., Inc., Et. Al. versus Hon. Luis L. Victor, Et Al.," which affirmed the orders
dated March 28 and April 27, 1983 of herein respondent Judge Luis L. Victor in Civil Case No. N-4338 of the
Regional Trial Court of Cavite, entitled "Timotea T. Moralde, Et. Al. versus Pantranco South Express, Inc., Et. Al."

On December 19, 1982, Bus No. 3008 of the Pantranco South Express, Inc., Pantranco for short, driven by Rogelio
Dillomas, collided with Bus No. 331 of the Superlines Transportation Co., Inc., Superlines for short, then driven by
Erlito Lorca along the highway at Lumilang, Calauag, Quezon, resulting in the instantaneous death of Cayetano P.
Moralde, Sr., a passenger in the Pantranco bus.

On January 4, 1983, Superlines instituted an action for damages before the then Court of First Instance of Quezon,
Gumaca Branch, against Pantranco and Rogelio Dillomas, driver of said Pantranco Bus No. 3008. In its complaint,
docketed as Civil Case No. 1671-G, Superlines alleged that the recklessness and negligence of the Pantranco bus
driver was the proximate cause of the accident and that there was want of diligence on the part of Pantranco in the
selection and supervision of its driver.

On February 11, 1983, private respondents Timotea T. Moralde, widow of the deceased Cayetano P. Moralde, Sr.,
and her children, Cayetano, Jr., Alexander, Ramon, Emmanuel, all surnamed Moralde, and Jocelyn M. Abellana, filed
a complaint for damages, docketed as Civil Case No. N-4338 of the Regional Trial Court of Cavite City, against
Superlines and its driver, Erlito Lorca, as well as Pantranco and its driver, Rogelio Dillomas. The cause of action
pleaded against Superlines was based on quasi-delict, while that against Pantranco, on culpa-contractual.

On February 28, 1983, herein petitioners Superlines and its driver Erlito Lorca filed a motion to dismiss in Civil
Case No. N-4338 on the ground of pendency of another action, obviously referring to Civil Case No. 1671-G pending
before the Regional Trial Court of Quezon, Gumaca Branch.

Finding that the two cases (Civil Cases No. 1671-G and No. N-4338) involved different parties as well as different
causes of action, respondent Judge Luis Victor denied the motion to dismiss in the challenged order of March 28,
1983. Superlines moved for a reconsideration, but the same was denied on April 27, 1983.

Dissatisfied, Superlines filed with the Intermediate Appellate Court a petition for certiorari and prohibition with
preliminary injunction, which petition, however, was denied due course. Hence, this present recourse.

It is suggested by petitioners that private respondents Moraldes should pursue their claim for damages by
intervening in the Gumaca action, pursuant to Sec. 2, Rule 12 of the Rules of Court and in the light of Municipality of
Hagonoy v. Secretary of Agriculture and Natural Resources [73 SCRA 507] and Orellano v. Alvestir [76 SCRA 536].
It is contended that since the right of private respondents to claim damages is founded on the same facts involved
in the Gumaca action, any judgment rendered therein will amount to res judicata in the Cavite case, for whatever
adjudication is made in the former case between Pantranco and Superlines as regards either of the parties’
culpability would set said issue at rest. Furthermore, such intervention would prevent multiplicity of suits and
avoid confusion that may arise should the trial courts render conflicting decisions.

Petitioners’ stand is consistent with our ruling in the case of Marapao v. Mendoza, 119 SCRA 97, where We held
that:

"While respondent Castillo has not been impleaded in the Bohol case, she has similar interests as Hotel de
Mercedes, the defendant therein which is her employer. Petitioner and private respondent both claim damages
based on the same incident. A decision, whether in favor of petitioner or private respondent in the Bohol case
would amount to res judicata in the Cebu case. Damages in favor of one party would preclude damages in favor of
the other.

"There is an additional reason for dismissal and that is, to avoid multiplicity of suits. (Ago Timber Co. v. Hon. Ruiz,
Et Al., 21 SCRA 138 (1967); Erlanger v. Villamor, 98 Phil. 1003 (1956); Teodoro, Jr. v. Mirasol, 99 Phil. 150 (1956).

"To protect the interests of respondent employee, she may intervene as a party in the Bohol case and file a
counterclaim for damages against petitioner."

There is, however, a more pragmatic solution to the controversy at bar; and that is to consolidate the Gumaca case
with the Cavite case. Considerations of judicial economy and administration, as well as the convenience of the
parties for which the rules on procedure and venue were formulated, dictate that it is the Cavite court, rather than
the Gumaca court, which serves as the more suitable forum for the determination of the rights and obligations of
the parties concerned.

As observed by both the trial and appellate courts, to require private respondents who are all residents of Kawit,
Cavite, to litigate their claims in the Quezon Court would unnecessarily expose them to considerable expenses. On
the other hand, no like prejudice would befall the defendants transportation companies if they were required to
plead their causes in Cavite, for such change of venue would not expose them to expenses which they are not
already liable to incur in connection with the Gumaca case. The objection interposed by Superlines that it has its
offices in Atimonan, Quezon, should not detract from the overall convenience afforded by the consolidation of cases
in the Cavite Court. For apart from the fact that petitioner and its driver are represented by the same counsel with
offices located in Manila, defendants transportation companies can readily avail of their facilities for conveying
their witnesses to the place of trial.

The ordered consolidation of cases, to our mind, crystallizes into reality the thinking of our predecessors that:

". . . The whole purpose and object of procedure is to make the powers of the court fully and completely available
for justice. The most perfect procedure that can be devised is that which gives opportunity for the most complete
and perfect exercise of the powers of the court within the limitations set by natural justice. It is that one which, in
other words, gives the most perfect opportunity for the powers of the court to transmute themselves into concrete
acts of justice between the parties before it. The purpose of such a procedure is not to restrict the jurisdiction of
the court over the subject matter, but to give it effective facility in righteous action. It may be said in passing that
the most salient objection which can be urged against procedure today is that it so restricts the exercise of the
court’s powers by technicalities that part of its authority effective for justice between the parties is many times an
inconsiderable portion of the whole. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate
the application of justice to the rival claims of contending parties. It was created not to hinder and delay but to
facilitate and promote the administration of justice. It does not constitute the thing itself which courts are always
striving to secure to litigants. It is designed as the means best adapted to obtain that thing. In other words, it is a
means to an end. It is the means by which the powers of the court are made effective in just judgments. When it
loses the character of the one and takes on that of the other the administration of justice becomes incomplete and
unsatisfactory and lays itself open to grave criticism." (Manila Railroad Co. v. Attorney-General, 20 Phil. 523)

WHEREFORE, the instant petition is hereby denied. Civil Case No. 1671-G of the Regional Trial Court of Quezon is
hereby ordered consolidated with Civil Case No. N-4338 pending before the Regional Trial Court of Cavite. The
Regional Trial Court of Quezon, Gumaca Branch, is directed to transfer, without unnecessary delay, the records of
Civil Case No. 1671-G to the Regional Court of Cavite, Branch XVI.

SO ORDERED.

Judgment on Pleadings, Summary Judgment (Rule 34-35)

1. PHILIPPINE NATIONAL BANK, plaintiff-appellee, vs. PHILIPPINE LEATHER CO. INC., ET AL., defendants-
appellants.

G.R. No. L-10884 March 31, 1959

PADILLA, J.:

In its complaint filed in the Court of First Instance of Manila, the plaintiff alleges that on 1 September 1952 the
defendant Philippine Leather Co., Inc. applied for a commercial letter of credit in the sum of $14,814.80, in U.S.
currency, under the terms and conditions set forth in an application filed by the defendants in favor of the Turner
Tanning Machinery Co. of Peabody, Massachusetts, U.S.A. to cover the full invoice value of certain machineries and
their accessories; that on 3 October 1952 the plaintiff approved the application "subject to 30% deposit and the
joint and several signatures of Mr. Isidoro Tinoco and Mrs. Soledad L. Basa" which conditions were complied with;
that on 8 October 1952, the plaintiffs issued Letter of Credit No. 51469 in favor of the Turner Tanning Machinery
Company; that on 15 November 1952 the Turner Tanning Machinery Co., drew upon the letter of credit the sum of
$14,549.17, U.S. currency; that upon arrival in the Philippines of the machineries and their accessories imported by
the defendants under a trust receipt, that on 23 January 1953 the plaintiff presented to the defendants for payment
the draft drawn by the Turner Tanning Machinery Co., upon Letter of Credit No. 51469 which was accepted by
them; that after the draft had matured on 23 April 1953 the plaintiff made numerous demands upon the
defendants to pay the amount of the draft and the charges due thereon but the defendants failed and refused to
pay; and that as of 15 October 1953, the outstanding balance of the defendants on the draft is P22,787.79,
Philippine currency, plus interest thereon at the rate of P4.89135 daily until fully paid. It alleges further that on 30
January 1953 the defendant Philippine leather Co., Inc., applied for a commercial letter of credit in the sum of
$2,587.50, U.S. currency, under the terms and conditions set forth in an application filed by the defendants in favor
of Bay State Chemical Co., of Boston, Massachusetts, U.S.A., to pay for the importation of color dye; that the plaintiff
approved the application "subject to 30% deposit and the joint and several signatures of Mr. Isidoro Tinoco and
Mrs. Soledad L. Basa," which conditions were complied with; that thereafter the plaintiff issued Letter of Credit No.
53753 in favor of the Bay State chemical Co., that on 12 March 1953 the Bay State Chemical Co., drew upon the
letter of credit the sum of $2,482.40, U.S. currency; that the draft drawn by the Bay State Chemical Co., was
presented by the plaintiff to the defendants for payment; that the defendants failed and refused to pay the amount
of the draft and the charges due thereon; that because of the failure and refusal of the defendants to pay their
obligation, the plaintiff delivered the documents of the shipment to the Luzon Brokerage Co., and requested it to
claim and store the shipment in its bonded warehouse, for which service and storage the defendants are liable to
the Luzon Brokerage Co.; that as of 15 October 1953; the outstanding balance of the defendants on the draft is
P4,503.05, Philippine currency, plus interest thereon at the rate of P.083569 daily until fully paid.

The plaintiff prays that after hearing judgment be rendered ordering the defendants to pay it the sum of
P22,787.79, with daily interest thereon at the rate of P4.89135 from 15 October 1953 until fully paid; 10% of the
said amount as attorney's fee; P4,503.05, with daily interest thereon at the rate of P0.83569 from 15 October 1953
until fully paid; the amount of storage and other charges that the Luzon Brokerage Co., would charge the plaintiff
for the handling and storage of the merchandise imported by the defendants under Letter of Credit No. 53753; and
the costs of the suit. The plaintiff further prays that pending hearing and final judgment, a writ of attachment be
issued commanding the Sheriff of the City of Manila to levy upon attachment on the properties of the defendants as
security for the satisfaction of any judgment that it may secure against them.
In their answer filed on 28 December 1953 the defendants admit the plaintiff's averments except as to the
correctness of the amounts due on the two drafts, the correctness of which they were still checking, and for that
reason lacking sufficient knowledge or information to form a belief as to the truth and veracity of the amounts due
on the two drafts, they deny the amounts claimed by the plaintiff to be due from them.

On 25 June 1954 the plaintiff filed a motion for summary judgment on the ground that since the defendants had
admitted the material averments of its complaint except as to the correctness of the amounts due, the defendant's
answer did not tender a genuine issue. The plaintiff attached to its motion an affidavit subscribed and sworn to by
Ceferino Saavedra, Manager of the Special Assets Department of the plaintiff, in charge of all outstanding accounts
of its debtors, stating the payments made by the defendants on their account and the exact total amount due from
them.

On 7 October 1954 the Court granted the plaintiff's motion and rendered judgment ordering the defendants, jointly
and severally, to pay —

. . . the plaintiff in the first cause of action, the amount of P22,787.79, with a daily interest of P4.89135 from
October 15, 1953 up to full payment thereof, and 10% of the amount due for attorney's fees. On the second
cause of action, defendants shall pay, jointly and severally, the sum of P4,503.05, with a daily interest of
P0.83569 from October 15, 1953 until full payment thereof.

Defendants shall also pay the costs.

The defendants appealed to the Court of Appeals. The latter certified the case to this Court for the reason that only
questions of law are raised.

Rule 36 provides:

Section 1. Summary judgment for claimant. — A party seeking to recover upon a claim, counterclaim, or
crossclaim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been
served, move with affidavits for a summary judgment in his favor upon all or any part thereof.

SEC. 3. Motion and proceedings thereon. — The motion shall be served at least ten days before the time
specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The
judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions or file, together
with the affidavits, show that, except as to the amount of damages, there is no genuine issue as to any of the
material fact and that the moving party is entitled to a judgment as a matter of law.

SEC. 5. Form of affidavits. — Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or certified copies of all papers of parts thereof
referred to in an affidavit shall be attached thereto or served therewith.

The defendant's answer that as to the first cause of action they—

. . . are still checking on the correctness of the alleged balance outstanding against them and in favor of the
plaintiff; consequently, for lack of knowledge or information sufficient to form a belief as to the truth and
veracity of the averments embodied in paragraph 7 thereof, they hereby specifically deny the allegations
therein stated;

and that so to the second cause of action they—

. . . are checking on the veracity and correctness of the balance allegedly outstanding in favor of the plaintiff
manifested in paragraph 6 of the same, they, by virtue thereof, specifically deny it for lack of knowledge and
belief as to the truth of the allegations embodied in the aforestated paragraph.
does not tender a genuine issue. In fact they admit that they are indebted to the plaintiff. As the affidavit subscribed
and sworn to by the Manager of the Special Assets Department of the plaintiff, in charge of all outstanding accounts
of its debtors, attached to the motion for summary judgment, furnishes the Court with the payments made by the
defendants on their account and the amount due from them, which they failed to oppose by counter affidavits, the
plaintiff is entitled to summary judgment.1

The judgment appealed from is affirmed, with costs against the appellants.

2. G.R. No. L-17721 October 16, 1961

GREGORIO APELARIO, doing business under the style "GREGORIO TRADING," plaintiff-appelleee, vs. INES
CHAVEZ & COMPANY, LTD., doing business under the style "FIDELITY MOTOR SUPPLY COMPANY, LTD., and
INES CHAVEZ, defendants-appellants.

REYES, J.B.L., J.:

Appeal from a judgment on the pleadings rendered by the Court of First Instance of Manila on June 8, 1959 in its
Case No. 39822, and certified by the Court of Appeals to this Court on the ground that only questions of law are
involved.

The record shows that on April 8, 1959, plaintiff Gregorio Apelario filed a complaint against Ines Chavez &
Company, Ltd., a limited partnership, and its general partner, Ines Chavez. It was therein averred, in substance, that
on or about October 28, 1958, the defendant partnership had purchased on credit from plaintiff ten sets of axle
assemblies for the sum of P2,400.00 (par. 3); that on December 6, 1958, defendant delivered in payment to the
plaintiff two postdated cash checks for P1,200.00 each, drawn against the Philippine Bank of Commerce (par. 4);
that when the checks were presented for payment, they were dishonored for lack of funds, whereupon the
defendant took back the checks and replaced them with two other checks, also postdated, for the same amount as
before (par. 5); that these checks were also dishonored (par. 6); that the plaintiff, on February 23, 1959, demanded
payment in cash, but defendant refused to pay (par. 7); that because of such malicious and wilfull refusal, plaintiff
had to engage the services of counsel for an agreed fee of P750.00 (par. 8); that defendant was about to remove
and dispose of its properties with intent to defraud the plaintiff, wherefore a writ of attachment became necessary
(par. 9); and prayer was made for judgment in favor of plaintiff and against the defendant for the sum of P2,400.00,
with legal interest from the filing of the complaint, and for P750.00 attorney's fees, with expenses and costs.
Plaintiff also moved and duly obtained a writ of attachment.

Defendants obtained the lifting of the attachment by filing a counterbond on April 14, 1959; and on May 7, 1959,
they filed an answer admitting the allegations of paragraphs 1 and 6 of the complaint, admitting that plaintiff had
demanded payment of P2,400, but pleaded that —

defendants could not pay the plaintiff, because they have so many accounts receivable which have not yet
been paid to them, of which fact the defendant was duly informed by the plaintiff and thereby requested to
wait a while. (R. App. p. 27)

Defendants further averred having no knowledge or information of the allegations of paragraph 8 of the complaint
concerning the attorneys' fees; denied having performed any act of removal or disposal of its property, branding
plaintiff's allegations in paragraph 9 to be false and malicious; and prayed for dismissal of the complaint.

Upon motion of the plaintiff, and over the objection of defendants, the trial court rendered judgment on the
pleadings, sentencing defendants to pay P2,400, plus legal interest from the filing of the complaint; and P500
attorney's fees.
Defendants appealed, and now claim that it was error for the lower court to have rendered judgment on the
pleadings, because the answer raised material issues.

We find no merit in the appeal. As pointed out in the judgment complained of the defendants-appellants had
admitted all the material allegations of the complaint concerning the existence of the debt and its non-payment.
The pleaded excuse, that they had requested plaintiff to wait because appellants' many accounts receivable had not
yet been collected, is clearly no defense, for a debtor can not delay payment due just to suit its convenience, and the
creditor is not an underwriter of his debtor's business unless so stipulated.

The denial of the averment concerning the stipulated fees of plaintiff's attorney tendered no genuine issue, for even
without such allegations, it was discretionary in the court to allow reasonable attorneys' fees by way of damages, if
it found just and equitable to allow their recovery (Civ. Code, Art. 2208). In this case, allowance of such fees was
justified since defendant admitted having issued to the creditor checks without funds, not once but twice. It is well
to note the P750 attorney's fees claimed by plaintiff were reduced to P500 only.

Nor does the denial of the complaint's averments concerning the fraudulent removal and disposition of defendant's
property constitute a bar to a judgment on the pleadings, since the defendant neither claimed nor asked for any
damages on account of the issuance and levy of the writ of attachment.

WHEREFORE, the appealed judgment of the Court of First Instance is affirmed. Costs against appellants.

3. G.R. No. L-49668 November 14, 1989

POLICARPIO, LUCIO, JULIAN, CATALINO, BONIFACIO, CONRADA, DOMINGO, PAQUITA, AND LILIA, ALL
SURNAMED GALICIA, petitioners, vs. THE HON. WENCESLAO M. POLO, in his capacity as Presiding Judge, CFI,
Branch V, Samar (Calbayog City), ZOSIMA PALAJOS, TITING LISTOJAS, ALFREDO PALAJOS, MANUELITO
ROSIALDA, respondents.

BIDIN, J.:

This is a petition for review on certiorari seeking to set aside the summary judgment entered by the then Court of
First Instance of Samar, Br. V in Civil Case No. 758-CC entitled, "Policarpio, Lucio, Julian, Catalino, Bonifacio,
Conrada, Domingo, Paquita and Lilia, all surnamed Galicia v. Zosima Palajos, Titing Listojas, Alfredo Palajos and
Manuelito Rosialda" and to order the trial court to try the above-cited case on the merits.

The facts are undisputed.

On December 15, 1973. a complaint for forcible entry (Civil Case No. 56) entitled "Amancio Palajos v. Policarpio,
Perfecto, Victorio Julian and Eduardo, all surnamed Galicia," was filed in the Municipal Court of Almagro, Samar,
alleging that Amancio Palajos is the owner and in actual possession of a parcel of land located at Bacjao, Almagro,
Samar, more particularly described as follows:

A parcel of land with an area of about 4-88-00 hectares, more or less, assessed at P 360.00 as per
Tax Declaration No. 8547 in the name of Juan Palajos, it is, however, 14.2860 hectares as per
approved survey plan, the boundaries of which are: N — Pedro Galicia and the Poblacion of Barrio
Bacjao; S — Emilio Carpon, Magno Suico and Teresa Subito; and W — Bernardo Ballarante and
Cenon S. Aguilar.

which he acquired by way of donation from his father, Juan Palajos. It is further alleged that defendants
(petitioners herein) forcibly entered the northeastern portion of the said property covering an area of about 1 1/2
hectares.
The trial of the case was set several times but was postponed at the instance of defendants (petitioners herein). For
the fifth time, i.e., on July 19, 1974, neither the defendants nor counsel appeared. Accordingly, the court granted a
trial ex parte on motion of plaintiffs counsel (Rollo, p. 24).

Subsequently, the municipal trial court rendered judgment against defendants (petitioners herein), the dispositive
portion of which reads:

WHEREFORE, this Court hereby renders judgment ordering defendants Policarpio Galicia, Perfecto
Galicia, Victorio Galicia, Julian Galicia and Eduarda Galicia to restore to plaintiff Amancio Palajos the
portion of land described in par. 4 of the plaintiffs complaint consisting of one and one-half hectares
and which is the northeastern portion of land under Tax Dec. No. 8547 as described in paragraph 2
thereof, ordering the defendants to pay to plaintiff a monthly rental in the amount of FIFTY PESOS
(P 50.00) on the premises in question for its use and occupation from September, 1973, up to the
time when said premises is finally restored to the plaintiff, and to pay the costs.

SO ORDERED.

On September 28, 1974, defendants filed a motion for reconsideration and to grant a new trial but was denied in an
Order dated October 24, 1974 (Rollo, p. 28).

On November 12, 1974, defendants filed a notice of appeal but the same was likewise denied by the trial court on
the ground that it was filed beyond the reglementary period of fifteen (15) days to perfect an appeal.

For failure of the defendants to pay the rentals adjudged in the forcible entry case (CC No. 56), a writ of execution
was issued and after levy, the deputy sheriff of Calbayog City, on August 4, 1976, sold at public auction the real
property owned by petitioners' deceased father adjoining the land subject of the forcible entry case more
particularly described as follows:

A piece of real estate consisting of coconut and cornland situated at Bo. Bacjao, Almagro, Samar,
Philippines, bounded on the NORTH, by Isabelo Palajos; on the SOUTH, by Narciso Pajalino; and on
the WEST, by Seashore, containing an area of 2-60-00 hectares, more or less assessed at P180.00,
under Tax Declaration No. 12048, in the name of Pedro Galicia (deceased); (Rollo, p. 30).

On October 10, 1977, or over 14 months after the execution sale, petitioners filed a complaint for Ownership and
Damages against herein respondents in the then Court of First Instance of Samar, 13th Judicial District, Br. V,
docketed as Civil Case No. 758-CC, alleging that they are co-owners of a certain parcel of agricultural land (subject
of the auction sale) which they inherited from their deceased father, Pedro Galicia, more particularly described as
follows:

A parcel of coconut and corn land located at Bacjao, Almagro, Samar, Philippines, with an area of
26,000 sq. m. and bounded on the NORTH, by Isabelo Palajos; SOUTH, by Narciso Pauline; EAST, by
Benedicto Paulino and WEST, by Seashore covered by Tax Declaration No. 12048 in the name of
Pedro Galicia.

The complaint further alleged that pursuant to Civil Case No. 56 (forcible entry case), respondents were able to
take possession of the land in question as said case was heard ex-parte; and that a decision was rendered in
respondents' favor and said decision was executed sometime in 1976 (Rollo, p. 36-37).

In their Answer, respondents (defendants below) countered that they were able to take possession of the land
described in the complaint by virtue of the decision and later, execution of the decision in the forcible entry case,
which, by petitioners' (plaintiffs below) averment in their complaint is an admission of an existing judgment that
would constitute res judicata; that they are the lawful owners of the disputed land the same having been subjected
to levy and execution in 1975 thru a sale in favor of respondents' predecessor-in-interest, Juan Palajos.
The issues having been enjoined, the case was set for pre-trial by respondent judge Hon. Wenceslao M. Polo. At the
pre-trial, counsel for private respondents moved for time within which to file a motion for summary judgment
which was granted by respondent judge in his order dated June 28, 1978.

Defendants' (private respondents herein) motion for summary judgment was filed on July 7, 1978 (Rollo, p. 43)
alleging that no genuine issue exists in the case at bar after the pre-trial was conducted and admission of facts were
had (Rollo, p. 44), while plaintiffs (petitioners herein) filed their opposition to the motion for summary judgment
dated July 17, 1978 alleging among others, that genuine issues exist (Rollo, pp. 45-47).

On August 11, 1978, the court a quo rendered the assailed summary judgment dismissing petitioners' complaint
(Rollo, p. 48-53), the pertinent portion of which reads:

As demonstrated by the parties, there is no question that the land in dispute is that parcel described
in paragraph 3 of the complaint, a portion of which was a subject in a forcible entry case before the
Municipal Trial Court of Almagro Samar (Exhibit 1, 2 and 3) with the defendants now as sucessors-
in-interest of the plaintiff, and most of the herein plaintiffs as defendants.

The pleadings also show that upon the death of the primitive owner, Pedro Galicia, the plaintiffs as
children and grandchildren possessed and owned this land pro-indiviso, until the possession of said
portion was transferred to the defendants when the decision in that forcible entry case was
executed in 1976 (Exhibit 7) such being the case, therefore, with respect to this portion of the land
in dispute, the possession is settled, which would constitute as a bar to this action.

xxx xxx xxx

With respect to the other portion of the land in dispute, the plaintiffs admit that possession was
transferred to the defendant by virtue of a sale executed by the sheriff; the one year period having
elapsed without exercising their right of redemption, as a result a final deed of sale was issued. The
legality of the sale not having been assailed by them, for all intents and purposes, ownership on this
land have been vested on the defendants as heirs of Juan Palajos.

WHEREFORE, premises above considered, judgment is hereby rendered ordering the dismissal of
the plaintiffs' complaint, without pronouncement as to cost."

A motion to re-open the case for trial on the merits was filed by plaintiffs but was denied in an order dated
November 27, 1978 (Rollo, p. 62). Hence, this instant petition.

Petitioners contend that the trial court erred when it decided Civil Case No. 758-CC by summary judgment when
there are several genuine issues involved therein which require a trial of these issues on the merits, such as:

(A) WAS THE EXECUTION SALE CONDUCTED BY DEPUTY PROVINCIAL SHERIFF EUFROCINO T.
OLIFERNES OF LOT NO. 1363 OF THE LATE PEDRO GALICIA, PETITIONERS' FATHER, VALID TO
CONFER UPON THE DEFENDANTS IN SAID CASE A JUST TITLE OVER SAID REALTY?

(B) WERE THE UNDIVIDED SHARES AND PARTICIPATIONS OF JULIAN GALICIA AND CATALINO
GALICIA WHO WERE TWO OF THE LEGITIMATE CHILDREN OF PEDRO GALICIA NOT IMPLEADED
AS PARTIES IN CIVIL CASE NO. 56 IN THE MUNICIPAL COURT OF ALMAGRO OVER LOT NO. 1363,
AFFECTED BY THAT EXECUTION SALE?

(C) WERE THE UNDIVIDED SHARES AND PARTICIPATIONS OF EDUARDA GALICIA AND PERFECTO
GALICIA OVER LOT NO. 1363, BUT WHO WERE NOT IMPLEADED AS PARTIES IN CIVIL CASE NO.
758-CC OF THE COURT OF FIRST INSTANCE OF SAMAR (CALBAYOG CITY) AFFECTED BY THE
DECISION OF THE LATTER COURT OF SUMMARY JUDGMENT? (Rollo, p. 10).
The crucial issue in this case is whether or not the trial court erred when it decided Civil Case No. 758-CC by
summary judgment.

It is the contention of petitioners that the trial court erred in deciding their complaint (CC No. 758-CC) by summary
judgment when there are several genuine issues involved therein which require a full trial on the merits. Among
other things, petitioners contend that the execution sale conducted by the Deputy Provincial Sheriff was null and
void and would have merited a trial on the merits. Moreover, it is further contended that as between Civil Case No.
56 and Civil Case No. 758-CC, there can be no res judicata, considering that there is no Identity of parties, cause of
action and subject matter between the two actions.

After a thorough review of the records, the Court finds no cogent reason to disturb the summary judgment
rendered by respondent judge.

The Rules of Court authorizes the rendition of summary judgment if the pleadings, depositions and admissions on
file together with the affidavits, show that, except as to the amount of damages, there is no issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law (Sec. 3, Rule 34). Conversely, summary
judgment is not proper where the pleadings tender vital issues the resolution of which call for the presentation of
evidence (Villanueva v. NAMARCO, 28 SCRA 729 [1969]; Guevarra, et al., v. CA, et al., 124 SCRA 297 [1983]).

Summary judgment "is a device for weeding out sham claims or defenses at an early stage of the litigation, thereby
avoiding the expense and loss of time involved in a trial. The very object is 'to separate what is formal or pretended
in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the
burden of trial.' The test, therefore, of a motion for summary judgment is-whether the pleadings, affidavits, and
exhibits in support of the motion are sufficient to overcome the opposing papers and to justify a finding as a matter
of law that there is no defense to the action or the claim is clearly meritorious" (Estrada v. Hon. Consolacion, et al.,
71 SCRA 523 [1976]).

In addition, summary judgment is one of the methods sanctioned in the present Rules of Court for a prompt
disposition of civil actions wherein there exists no serious controversy. The procedure may be availed of not only
by claimants, but also by defending parties who may be the object of unfounded claims. A motion for summary
judgment assumes that scrutinizing the facts will disclose that the issues presented by the pleadings need not be
tried because they are so patently unsubstantial as not to be genuine issues, or that there is no genuine issue as to
any material facts or where the facts appear undisputed and certain from the pleadings, depositions, admissions
and affidavits (Singleton v. Philippine Trust Co., 99 Phil, 91 [1956], cited in Bayang v. CA, 148 SCRA 91 [1987]).

Examining petitioners' complaint, the Court finds that the disputed property is the same parcel of land, which
adjoins private respondents' lot which was the subject of the forcible entry case and from which petitioners were
ordered to vacate. When petitioners (then defendants), failed to satisfy the rentals adjudged in the forcible entry
case, said adjoining parcel of land was sold at public auction to Juan Palajos (respondents' predecessor-in-interest)
as the higher bidder in the execution sale to satisfy the monetary judgment rendered therein. The property so
described in petitioners' complaint (Rollo, p. 36) squarely fits what has been levied upon and sold at public auction
(Rollo, p. 30), the owners of which are now private respondents upon the demise of their predecessor-in-interest.

There is thus no question that issue of ownership of the disputed land subject of the present petition has long been
foreclosed in the forcible entry case which culminated in the public auction sale of the parcel of land now sought to
be recovered. Having failed to redeem the property sold at the public auction sale within the reglementary period
of twelve (12) months (Sec. 30, Rule 39 of the Rules of Court), petitioners cannot now claim that they still own said
property. Petitioners' complaint for Ownership and Damages is but a belated and disguised attempt to revive a
judgment debtors' right of redemption which has long expired. There being no issue as to any material fact raised
in the pleadings, summary judgment may be rendered.

Neither can the issue of the validity of the execution sale help petitioners' cause. Well-settled in this jurisdiction, is
the rule that issues not raised and/or ventilated in the lower court cannot be raised for the first time on appeal
(Rebodos v. WCC, 6 SCRA 717 [1962]; DBP v. CA, 116 SCRA 636 and a long line of cases). A review of the records of
the case shows that petitioners failed to directly assail and raise as issue, the validity of the aforementioned auction
sale in their complaint. It was only when the respondent judge noted such omission in his decision dismissing Civil
Case No. 758-CC dated August 11, 1978 (Rollo, p. 48-53) that petitioners later filed a separate action for Annulment
of Auction Sale and Damages on October 4, 1978 (Civil Case No. 837-CC; Rollo, p. 31-35). The validity of the
execution sale not having been raised and/or litigated in the case subject of the present appeal, the Court, at this
stage, cannot pass upon the same for the purpose of determining the propriety of the summary judgment.
Objections to the execution sale cannot be considered in the Supreme Court inasmuch as it was not raised in the
lower court (Ramiro v. Grano 54 Phil. 744 [1930]; citing Tan Machan v. de la Trinidad, 3 Phil. 684 [1904] and U.S. v.
Inductive, 40 Phil. 84 [1919]).

WHEREFORE, the instant petition is hereby DENIED for lack of merit. Costs against petitioners.

SO ORDERED.

Judgments, Final Orders, and Entry Thereof

1. MARCELINO G. RIVERA, JR., Petitioner, v. THE PEOPLE OF THE PHILIPPINES and HON. MARCELINO F.
BAUTISTA, JR., Presiding Judge of the Regional Trial Court, Branch III, Baguio City, Respondents.

PARAS, J.:

The instant petition seeks to annul and set aside the Order dated March 28, 1990 issued by respondent Judge in
Criminal Case No. 6201-R. The said Order sets aside the verbal order earlier dictated in open court dismissing the
case for failure to adduce evidence on the part of the prosecution.

The following pertinent facts are not disputed:

On December 16, 1988, petitioner Marcelino G. Rivera, Jr. was arrested and detained for he allegedly was about to
transport marijuana to Manila. Consequently, on December 20, 1988 a case for violation of Section 4, Art. II of RA
6425 was filed against him with the Regional Trial Court of Baguio City, Branch III presided over by respondent
Judge Marcelino F. Bautista.

Petitioner was arraigned on February 20, 1989. He pleaded not guilty to the crime charged.

On April 5, 1989, the first witness for the prosecution Cpl. Victorio Afalla partially testified on direct examination
and reserved the right to identify the marijuana specimen allegedly confiscated from the petitioner. The hearing
was thus re-set to May 3, 1989 and June 6, 1989. But due to the absence of any prosecution witness despite notice
and the non-availability of the allegedly confiscated marijuana specimen, the hearings set for May 3, 1989 and June
6, 1989 were postponed to June 8, 1989.

On June 8, 1989, for the same reasons, the hearing was re-set to February 27, 1990.

On February 27, 1990, Capt. Lina Sarmiento, the Forensic Chemist who will present the marijuana specimen,
despite notice failed to appear. Petitioner through counsel then moved for the dismissal of the case. This was
denied by respondent Judge and the hearing was re-set to March 28, 1990.

On March 28, 1990, when the case was called at about 8:30 a.m. Capt. Lina Sarmiento despite notice, was not
around thereby necessitating a second call. When the case was called for the second time at around 9:00 a.m. Capt.
Sarmiento was still not around. Hence, Atty. Tomas Gorospe, in behalf of petitioner orally moved for the dismissal
of the case invoking the right to speedy trial as the petitioner stands confined and that the Government failed to
prosecute or adduce evidence due to the non-appearance of a vital prosecution witness.

The respondent Judge verbally granted the motion and ordered the immediate release of the accused.

While the subsequent calendared cases set for that day was in progress, and in less than an hour after
pronouncement of the verbal order of dismissal, Capt. Lina Sarmiento arrived direct from Quezon City. Upon a
satisfactory explanation, the respondent Judge issued his now assailed Order setting aside his previous verbal
order of dismissal and re-scheduling Crim. Case No. 6201-R for continuation of trial.

Alleging that the verbal order of dismissal made in open court amounted to the acquittal of petitioner and which
order is immediately final and executory, the respondent Judge could no longer set it aside without violating
petitioner’s constitutional right against double jeopardy.

The petition should be denied. The earlier verbal order of dismissal was not final, in fact, was ineffective, because it
left something to be done in line with the decision of this Court in Cabarroguis v. San Diego, L-19517, Nov. 30,
1962, 6 SCRA 866. This Court in said case ruled:

"Petitioner’s pretense is untenable. The verbal order of dismissal of said case was withdrawn or set aside, as soon
as it was dictated by respondent and before it could be reduced to writing and signed by her. As a matter of fact, it
was never put in writing. Much less was it ever signed by Respondent. For this reason, respondent contended that
said order of dismissal was incomplete and did not have the effect of acquitting the accused before it was
withdrawn. Indeed, pursuant to section 2 of Rule 116 of the Rules of Court, `the judgment’ — and the order of
dismissal in question had, if completed, such effect — ‘must be written . . . personally and directly prepared by the
judge, and signed by him . . . .’ The cases cited by herein petitioner involved written orders of dismissal, which were
signed by the corresponding judges. Hence, said cases are not controlling in the one at bar."

This doctrine was re-echoed in the case of Abay, Sr. v. Garcia, No. 66132, June 27, 1988, 162 SCRA 665 where this
Court ruled —

"Where there is a valid information and the accused has been arraigned, an order of dismissal issued by the court,
motu proprio, in the course of a trial of a criminal case, whether based on the merits or for failure of prosecution
witnesses to appear, has the effect of a judgment of acquittal and double jeopardy attaches. The order is also
immediately executory. However, this order of dismissal must be written in the official language, personally and
directly prepared by the judge and signed by him conformably with the provisions of Rule 120, section 2 of the
Rules of Court. In the instant case, it is very clear that the order was merely dictated in open court by the trial
judge. There is no showing that this verbal order of dismissal was ever reduced to writing and duly signed by him.
Thus, it did not yet attain the effect of a judgment of acquittal, so that it was still within the powers of the judge to
set it aside and enter another order, now in writing and duly signed by him, reinstating the case." (162 SCRA, pp.
667-668).

ACCORDINGLY, the petition is DENIED. The case is remanded to the court of origin for farther proceedings.

2. RENATO B. SUAREZ, petitioner, vs. COURT OF APPEALS, HON. ZENAIDA BALTAZAR as Presiding Judge
of the Regional Trial Court, Branch 153, Pasig, Metro Manila, and ROSEMARIE MANESE, respondents.

G.R. No. 83251 January 23, 1991

MEDIALDEA, J.:

This is a petition for review of the decision of the Court of Appeals dismissing the special civil action
for certiorariand prohibition filed by petitioner to annul and set aside the orders of the trial court and to enjoin the
latter from proceeding with the petition for custody of and support of minor Rafael Carlos Suarez docketed as Sp.
Proc. No. 840-J filed by respondent Manese.

The antecedent facts are as follows:

On December 11, 1986, respondent Manese filed with the trial court a petition for writ of habeas corpus against
petitioner Renato Suarez, his mother Paz Suarez and his sister Milagros Suarez docketed as Sp. Proc. No. 734-J.
On February 23, 1987, before she could finish the presentation of her evidence, respondent Manese filed a motion
to dismiss without prejudice to her right to file another action for custody of minor under Rule 99 of the Rules of
Court, contending that the issue as to who between the parties has the rightful and legal custody of the minor child
could be fully adjudicated in another action and not in the present action for writ of habeas corpus.

On February 24, 1987, the trial court issued a resolution granting the motion with prejudice.1âwphi1

Thereafter, respondent Manese filed another action for custody of minor and support on May 27, 1987 before the
trial court, docketed as Sp. Proc. No. 840-J against petitioner. The latter moved to dismiss the action on the ground
of bar by prior judgment rendered in Sp. Proc. No. 734-J dismissing the same with prejudice. On October 1, 1987,
the motion to dismiss by petitioner was denied by the trial court. Petitioner, however, moved for the
reconsideration of the denial which was also denied.

Respondent Manese filed on December 1, 1987 a motion for visitorial rights and on December 14, 1987, a motion
for custody of the minor during the Christmas season.

On December 15, 1987, the trial court issued an order denying petitioner's motion for reconsideration and
granting respondent Manese's two motions.

On January 22, 1988, the trial court issued another order setting aside its order dated December 15, 1987, which
granted the petitioner's motion for visitorial rights over the minor, and setting the pre-trial of the case on a
scheduled date.

Not satisfied with the orders of the trial court, petitioner filed with respondent appellate court a petition
for certiorariand prohibition with application for restraining order/preliminary injunction, seeking to set aside the
orders of the trial court of October 1, 1987 and December 15, 1987.

On February 12, 1988, the Court of Appeals rendered judgment dismissing the special civil action.

Hence, this petition was filed with the petitioner assigning the following errors of the respondent appellate court:

THE ORDER OF THE HONORABLE JUDGE EUTROPIO MIGRINO IN SP. PROC. NO. 734-J DISMISSING THE
PETITION FOR HABEAS CORPUS IS A VALID JUDGMENT.

II

UNDER SECTION 2, RULE 17 OF THE RULES OF COURT, THE HON. JUDGE MIGRINO HAS THE RIGHT TO
DISMISS THE HABEAS CORPUS CASE FILED BY MANESE WITH PREJUDICE.

III

THE PROPRIETY OR VALIDITY OF JUDGE MIGRINO'S ORDER OF DISMISSAL (ANNEX 'D') OF THE HABEAS
CORPUS CASE CANNOT BE PASSED UPON BY THE COURT OF APPEALS, BECAUSE IT WAS NOT APPEALED.

IV

IN THE LIGHT OF THE FOREGOING, MANESE'S CAUSE OF ACTION (PETITION FOR CUSTODY OF MINOR) IS
BARRED BY A PRIOR RESOLUTION (SEC. 1, PAR. (F), RULE 16 OF THE RULES OF COURT).

V
 GRANTING IN GRATIA ARGUMENTI THAT THE ORDER OF DISMISSAL BY JUDGE MIGRINO IS NULL AND
VOID UNDER THE CONSTITUTION, WHICH SUAREZ VEHEMENTLY DENIES, NEVERTHELESS, THE
PETITION FOR CUSTODY OF MINOR SHOULD STILL BE DISMISSED ON THE GROUND OF LITIS PENDENTIA.

VI

GRANTING, FURTHER, THAT THE ORDER OF DISMISSAL IS NOT A VALID JUDGMENT, WHICH SUAREZ
VEHEMENTLY DENIES, NEVERTHELESS, RESPONDENT JUDGE BALTAZAR COMMITTED NOT ONLY GRAVE
ABUSE OF DISCRETION BUT EXCEEDED HER JURISDICTION WHEN SHE GRANTED MANESE'S MOTION
FOR CUSTODY OF THE MINOR (ANNEX "M") IN HER ORDER OF 15 DECEMBER 1987 (ANNEX "N").

The assigned errors boil down to the following issues: 1) Whether or not the order of dismissal with prejudice in
the action for the writ of habeas corpus, docketed as Sp. No. 734-J is res judicata to the present action for custody of
minor and support docketed as Sp. No. 840-J; 2) whether or not the respondent appellate court committed grave
abuse of discretion in granting custody to the private respondent during the Christmas season as stated in the
questioned order of December 15, 1987.

We find the petition devoid of merit.

Anent the first issue, petitioner contends that the petition for custody of minor cannot prosper due to the prior
judgment dismissing the petition for writ of habeas corpus and the principle of res judicata applies even if the party
changed the form of its cause of action in filing the present action for custody of minor.

There are four well known requisites to the principle of res judicata: (1) there must be a final judgment or order;
(2) the court rendering the same must have jurisdiction over the subject matter of the parties; (3) the former
judgment is a judgment on the merits; and (4) there is between the first and the second action identity of parties, of
subject matter, and of causes of action (Filipinas Investment Corporation v. Court of Appeals, G.R. 66059-60,
December 4, 1989). However, the foregoing requisites should be subservient to the most significant requirement
that the former judgment must be a valid one. We agree with the conclusion of the Court of Appeals that the former
order issued by the trial court in Sp. Proc. No. 734-J, dismissing the habeas corpus case is null and void for having
been rendered in violation of the constitutional mandate that no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based (Article VIII, Section 14, 1987
Constitution). Further, the circumstances surrounding the dismissal of the case show that the order of the trial
court was issued whimsically and capriciously and with grave abuse of discretion tantamount to nullity of the
order.

Records show that the motion to dismiss of respondent Manese, who was the plaintiff in the trial court was filed
during the trial and hearing stage of the petition for writ of habeas corpus. The general rule governing dismissal of
actions by the plaintiff after the answer has been served is laid down in Rule 17 of the Revised Rules of Court,
which rule is summarized as follows — an action shall not be dismissed at the request of the plaintiff after the
service of the answer except by order of the court and upon such terms and conditions as the court deems proper.
Hence, the trial court has the judicial discretion in ruling on a motion to dismiss at the instance of the plaintiff, but
this discretion should be exercised within reasonable limits. In such case, the trial court has to decide whether the
dismissal of the case should be allowed, and if so on what terms and conditions.

In the case at bar, the motion to dismiss filed by the plaintiff states that it was without prejudice to the filing of an
action for the custody of minor on the ground that the issue as to the custody of the child would be properly
determined in a second action to be filed under Rule 99 of the Revised Rules of Court. Clearly, the purpose of the
plaintiff in dismissing the first action for a writ of habeas corpus was not to end litigation concerning the right of
the former to the custody of her child but on the contrary, to pursue it in a second action, this time for custody of
minor. It is worthy to note that the ground upon which respondent Manese filed her motion for dismissal is
erroneous since the question as to who shall have the custody of the child can be sufficiently resolved in the
petition for writ of habeas corpus pursuant to Rule 102, Revised Rules of Court without the necessity of filing a
separate action under Rule 99 of the said rules for that purpose. Nevertheless, it is error for the trial court to
dismiss the first case with prejudice to the filing of the second action without stating the reasons or basis thereof
This should not prevent the filing of the second action for custody of minor, since no opportunity was granted by
the trial court to the plaintiff to raise this issue for the determination of the court in the habeas corpus case. Hence,
We believe that the order of dismissal of the petition for the writ of habeas corpus cannot be considered as a valid
adjudication on the merits which would serve as a bar to the second action for custody of minor.

Assuming in gratia argumenti that the prior judgment of dismissal with prejudice was validly rendered within the
lawful discretion of the court and could be considered as an adjudication on the merits, nonetheless, the principle
of res judicata should be disregarded if its application would involve the sacrifice of justice to technicality
(Republic v. De los Angeles, No. L-30240, March 25, 1988, 159 SCRA 264). The application of the said principle,
under the particular facts obtaining, would amount to denial of justice and/or bar to a vindication of a legitimate
grievance (Ronquillo v. Marasigan, No. L-11621, May 31, 1962, 5 SCRA 304). It is worth stating here that the
controversy in the instant case is not just an ordinary suit between parties over a trivial matter but a litigation
initiated by the natural mother over the welfare and custody of her child, in which the State has a paramount
interest. The fundamental policy of the State as embodied in the Constitution in promoting and protecting the
welfare of children shall not be disregarded by the courts by mere technicality in resolving disputes which involve
the family and the youth.

The other issue raised by petitioner concerning grave abuse of discretion of the trial court in granting the custody
of the child to respondent Manese during the Christmas season from December 18, 1987 to January 2, 1988 is
already moot and academic.

ACCORDINGLY, the petition is hereby DENIED and the decision of the respondent Court of Appeals dated February
12, 1988 is AFFIRMED.

SO ORDERED.

3. THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. LORENZO B. VENERACION, Presiding Judge of
the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila, HENRY LAGARTO y
PETILLA and ERNESTO CORDERO, respondents.

KAPUNAN, J.:

The sole issue in the case at bench involves a question of law. After finding that an accused individual in a criminal
case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in imposing either the
penalty of Reclusion Perpetua or Death?

The facts antecedent to the case before this Court, as narrated by petitioner, 1 involve the perpetration of acts so
bizarre and devoid of humanity as to horrify and numb the senses of all civilized men:

On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a sack
and yellow table cloth tied with a nylon cord with both feet and left hand protruding from it was
seen floating along Del Pan St. near the corner of Lavesares St., Binondo, Manila.

When untied and removed from its cover, the lifeless body of the victim was seen clad only in a light
colored duster without her panties, with gaping wounds on the left side of the face, the left chin, left
ear, lacerations on her genitalia, and with her head bashed in.

On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report of the
victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of 288 Area H. Parola
Compound, Tondo, Manila were later charged with the crime of Rape with Homicide in an Information dated
August 8, 1994 filed with the Regional Trial Court of Manila, National Capital Judicial Region. Said Information,
docketed as Criminal Case No. 94-138071, reads:
 That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and
confederating together with one alias "LANDO" and other persons whose true names, identifies and
present whereabouts are still unknown and helping one another, with treachery, taking advantage
of their superior strength and nocturnity, and ignominy, and with the use of force and violence, that
is, by taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her
vagina, hitting her head with a thick piece of wood and stabbing her neck did then and there
wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y
LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion
the said ABUNDIO LAGUNDAY, a.k.a. "LANDO" and others, caused her fatal injuries which were the
direct cause of her death immediately thereafter.

CONTRARY TO LAW.

Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198 Sunflower St.,
Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274 Kagitingan St., Tondo, Manila,
Richard Baltazar y Alino, a.k.a. "Curimao," also of 1274 Kagitingan St., Tondo, Manila, and Catalino
Yaon y Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo, Manila were accused of the same crime of
Rape with Homicide in an Information dated August 11, 1994, docketed as Criminal Case No. 94-
138138, allegedly committed as follows:

That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the
said accused conspiring and confederating with ABUNDIO LAGUNDAY Alias "JR,"
JEOFREY and HENRY LAGARTO y PETILLA who have already been charged in the
Regional Trial Court of Manila of the same offense under Criminal Case No. 94-
138071, and helping one another, with treachery, taking advantage of their superior
strength and nocturnity and ignominy, and with the use of force and violence, that
is, by taking ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly
bringing her to a nearby warehouse, covering her mouth, slashing her vagina, hitting
her head with a thick piece of wood and stabbing her neck, did then and there
wilfully, unlawfully and feloniously have carnal knowledge of the person of said
ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will
and consent and on said occasion the said accused together with their confederates
ABUNDIO LAGARTO y PETILLA caused her fatal injuries which were the direct cause
of her death immediately thereafter.

CONTRARY TO LAW.

The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila,
presided over by respondent Judge.

Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly shot by
police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on August 12,
1994), pleaded "Not Guilty." Abundio Lagunday was dropped from the Information.

After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a
decision2on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y Maristela guilty
beyond reasonable doubt of the crime of Rape with Homicide and sentenced both accused with the "penalty
of reclusion perpetua with all the accessories provided for by law."3 Disagreeing with the sentence imposed, the
City Prosecutor of Manila on February 8, 1995, filed a Motion for Reconsideration, praying that the Decision be
"modified in that the penalty of death be imposed" against respondents Lagarto and Cordero, in place of the
original penalty (reclusion perpetua). Refusing to act on the merits of the said Motion for Reconsideration,
respondent Judge, on February 10, 1995, issued an Order denying the same for lack of jurisdiction. The pertinent
portion reads:
 The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have complied
with the legal requirements for the perfection of an appeal. Consequently, for lack of jurisdiction,
this Court cannot take cognizance of the Motion for Reconsideration of the Public Prosecutor of
Manila.

WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by both
herein accused is hereby reiterated.

The Clerk of this Court is hereby directed to transmit the complete records of these cases, together
with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8, Rule 122 of
the Revised Rules of Criminal Procedure.

SO ORDERED.

Hence, the instant petition.

The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's determination of
guilt and its conclusions will only be subject to our scrutiny at an appropriate time on appeal. We have thus
clinically limited our narration of events to those cold facts antecedent to the instant case relevant to the
determination of the legal question at hand, i.e., whether or not the respondent judge acted with grave abuse of
discretion and in excess of jurisdiction when he failed and/or refused to impose the mandatory penalty of death
under Republic Act No. 7659, after finding the accused guilty of the crime of Rape with Homicide.

We find for petitioner.

Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or
political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to
exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the
exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by
the Rule of Law, and ought "to protect and enforce it without fear or favor,"4 resist encroachments by governments,
political parties,5 or even the interference of their own personal beliefs.

In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at trial
found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide. Since the law in force at the
time of the commission of the crime for which respondent judge found the accused guilty was Republic Act No.
7659, he was bound by its provisions.

Section 11 of R.A. No. 7659 provides:

Sec. 11. Article 335 of the same Code is hereby amended to read as follows:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation.

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.
 When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. . .
.6

Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion Perpetua but
Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty of Reclusion Perpetua, it allows
judges the discretion — depending on the existence of circumstances modifying the offense committed — to
impose the penalty of either Reclusion Perpetua only in the three instances mentioned therein. Rape with homicide
is not one of these three instances. The law plainly and unequivocably provides that "[w]hen by reason or on the
occasion of rape, a homicide is committed, the penalty shall be death." The provision leaves no room for the
exercise of discretion on the part of the trial judge to impose a penalty under the circumstances described, other
than a sentence of death.

We are aware of the trial judge's misgivings in imposing the death sentence because of his religious convictions.
While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no
place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the
sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law
to impose the death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not
concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held that:

[W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in
arriving at a conclusion and determination of a case or the penalty imposed, resulting in an
illegality and reversible error, then we are constrained to state our opinion, not only to correct the
error but for the guidance of the courts. We have no quarrel with the trial judge or with anyone
else, layman or jurist as to the wisdom or folly of the death penalty. Today there are quite a number
of people who honestly believe that the supreme penalty is either morally wrong or unwise or
ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal
law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the
law regardless of their private opinions. It is a well settled rule that the courts are not concerned
with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of
the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only
function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to
apply them. And for the guidance of the members of the judiciary we feel it incumbent upon us to
state that while they as citizens or as judges may regard a certain law as harsh, unwise or morally
wrong, and may recommend to the authority or department concerned, its amendment,
modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as
decreed by the law-making body.8

Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the proper penalty
and civil liability provided for by the law on the accused."9 This is not a case of a magistrate ignorant of the law.
This is a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose a penalty to
which he disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or with grave abuse
of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly
imposes the penalty of Death.

WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED to the
Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance with
respondent judge's finding that the private respondents in the instant case had committed the crime of Rape with
Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, subject
to automatic review by this Court of the decision imposing the death penalty.
SO ORDERED.

Feliciano, Padilla, Romero, Bellosillo, Melo, Puno, Mendoza, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

NARVASA, C.J., concurring:

I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw up this
separate opinion merely to address a question which may be raised in relation to the appeal taken by the accused
from the judgment of conviction rendered by respondent Judge. It will be recalled that respondent Judge declined
to act on the merits of motion for reconsideration filed by the prosecution — praying that his decision sentencing
both accused to suffer reclusion perpetua be "modified in that the penalty of death be imposed" — for the reason
that since the accused had already "complied with the legal requirements for the perfection of an appeal," the Trial
Court had lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this Court of
the special civil action of certiorari at bar.

It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the court rendering
the judgment; and jurisdiction over the case passes to the appellate tribunal. This proposition considered, and
following respondent Judge's reasoning, this Court's directive for the remand of the case "to the Regional Trial
Court for the imposition of the penalty of death upon private respondents," might appear to be open to question,
since it would require the Trial Court to act in cases over which it had lost jurisdiction. Such a conclusion is not
warranted.

The judgment in question is void, and has been annulled and set aside by this Court, because rendered "without or
in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction," in so far as it
imposes, in light of the facts found to have been proven beyond reasonable doubt, a penalty other than that
peremptorily prescribed by law. The judgment being void, the appeal attempted to be taken therefrom is
inefficacious. The Trial Court may not be deemed to have thereby lost jurisdiction of the cases. It cannot thus be
said that it is being required by this Court to act in cases over which it has already lost jurisdiction. There exists no
legal obstacle to the remand of the cases to it and its modification of the judgment so that it may comply with the
mandatory prescription of the law.

REGALADO, J., concurring:

I concur without reservation in the ponencia in this case and its directive that the court a quo impose the correct
penalty of death as provided by law and consequent to its findings of guilt on the part of private respondents.
Indeed, this separate opinion which explicates my conformity with the procedure adopted and the mandate thereof
would not have been necessary were it not for the contrary observations that the petition herein should either
have been dismissed or consolidated with the criminal case elevated on appeal by private respondents.

Such digression from the judgment unconditionally accepted by the other members of the Court does not impress
me as being concordant with the Rules of Court and decisional law. What is before us in the case at bar is an
original civil action invoking the extraordinary writ of certiorari for the imposition of the correct penalty specified
by law, which legal duty respondent judge refused to comply with in grave abuse of his judicial discretion. 1 On the
other hand, the criminal case with which it is sought to be consolidated is an appellate recourse wherein the relief
sought is primarily the reversal of the finding of guilt and the absolution of private respondents.
Evidently, the determinative issues involved and the limited relief sought in the present special civil action are
entirely different from the issues for resolution and the modificatory judgment desired in the appealed criminal
case. The basic rule in consolidation of cases in civil procedure 2 requires, among others, the same subject matter
and the existence of a common question of law or fact. This is essentially the same as the rule on consolidation in
criminal procedure3 which contemplates charges for offenses founded on the same facts, or forming part of a series
of offenses of similar character.

Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal actions, and
not a special civil action in combination with the former. The impropriety of the latter situation is specially
underscored where the resolution of the controversy in the special civil action is a pre-judicial matter in the
appealed criminal case. These considerations apply to both the trial courts in the exercise of original jurisdiction
and to the appellate courts in the implementation of revisory power.

The purpose of the present original action for certiorari is to have the erroneous judgment of respondent judge —
erroneous because he imposed the wrong penalty — corrected on that score in the first instance. After such
correction shall have been effected, then the appeal from his judgment shall proceed for the desired review by this
Court to determine the guilt or innocence of appellants. The corrective action must proceed first and the resultant
amended judgment containing the proper penalty shall be the basis for the review as to whether appellants are
truly guilty and have to be meted that ultimate penalty. To have the certiorari action proceed simultaneously and in
unification with the appellate proceeding strikes me as an aberrant procedure. While it does not exactly square
with the figurative posture of putting the cart before the horse, it does result in the same absurdity of both the
horse and the cart moving abreast at the same time along the same judicial path.

It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate review be
conducted with the judgment containing an unauthorized penalty as the basis therefor, with this Court closing its
eyes to such a flagrant mistake. This time the cart precedes the horse. True, an appeal throws the judgment a
quoopen for review and the Court may raise the penalty to the appropriate punitive level. But, as the People
pertinently observes, what is there to prevent appellants from withdrawing their appeal upon sensing from the
arguments that, instead of the acquittal or reduced penalty aspired for, the ultimate denouement would be the
death sentence?

Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his appeal in the
appellate court.4 Generally, the withdrawal of an appeal before the filing of the appellee's brief in this Court is
permitted.5 Assuming that the Court denies the withdrawal of the appeal in order that the mistake in the penalty
imposed may be corrected in the judgment of the case on the merits,6 why should the appellate course of the
proceedings still have to be subject to such contingencies — with the inevitable waste of time and effort in the
formulation of alternative theories in two sets of pleadings by both parties — when with the decisive sweep of the
adjudgment here the doubts are dissipated and the real areas of contention are laid bare?

Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error from a
judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in the penalty is now
rectified with the death sentence being substituted therefor, as undeniably it should be, then the case will
consequently be before this Court on automatic review. That provision calling for automatic review when capital
punishment is inflicted7serves equally the interests of both the defense and the prosecution through protective
features established by case law.

Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of death and he
thereafter withdraws his appeal, the automatic review of the case shall nonetheless proceed, albeit without the
benefit of briefs or arguments from the accused.8 The automatic review of the case shall proceed even if the death
convict shall escape,9 as an exception to the provisions of Section 8, Rule 124, and such automatic review cannot be
waived. 10 The aforementioned beneficial effects are not provided for and may not be availed of by the accused in
an ordinary appeal to this Court.

The automatic review of the death sentence ensures the right of the condemned person to procedural due process
on appeal, and safeguards the interests of the State by exacting the corresponding penal sanction decreed by law.
The disposition adopted by the Court in this case subserves the ends of these fundamental policies, hence my
unqualified assent thereto.

VITUG, J., dissenting:

The ponencia itself indicates that the case against the convicted accused is already on appeal before this Court.
Thus, the instant petition, in my view, has become academic since an appeal brings the case wide open for review
and consideration. A ruling on the petition would be precipitate and might be so perceived as peremptory on the
imposition of the death penalty.

With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it should at the
very least be consolidated with the appealed case.

Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.

Davide, Jr., J. concurs.

Separate Opinions

NARVASA, C.J., concurring:

I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw up this
separate opinion merely to address a question which may be raised in relation to the appeal taken by the accused
from the judgment of conviction rendered by respondent Judge. It will be recalled that respondent Judge declined
to act on the merits of motion for reconsideration filed by the prosecution — praying that his decision sentencing
both accused to suffer reclusion perpetua be "modified in that the penalty of death be imposed" — for the reason
that since the accused had already "complied with the legal requirements for the perfection of an appeal," the Trial
Court had lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this Court of
the special civil action of certiorari at bar.

It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the court rendering
the judgment; and jurisdiction over the case passes to the appellate tribunal. This proposition considered, and
following respondent Judge's reasoning, this Court's directive for the remand of the case "to the Regional Trial
Court for the imposition of the penalty of death upon private respondents," might appear to be open to question,
since it would require the Trial Court to act in cases over which it had lost jurisdiction. Such a conclusion is not
warranted.

The judgment in question is void, and has been annulled and set aside by this Court, because rendered "without or
in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction," in so far as it
imposes, in light of the facts found to have been proven beyond reasonable doubt, a penalty other than that
peremptorily prescribed by law. The judgment being void, the appeal attempted to be taken therefrom is
inefficacious. The Trial Court may not be deemed to have thereby lost jurisdiction of the cases. It cannot thus be
said that it is being required by this Court to act in cases over which it has already lost jurisdiction. There exists no
legal obstacle to the remand of the cases to it and its modification of the judgment so that it may comply with the
mandatory prescription of the law.

REGALADO, J., concurring:

I concur without reservation in the ponencia in this case and its directive that the court a quo impose the correct
penalty of death as provided by law and consequent to its findings of guilt on the part of private respondents.
Indeed, this separate opinion which explicates my conformity with the procedure adopted and the mandate thereof
would not have been necessary were it not for the contrary observations that the petition herein should either
have been dismissed or consolidated with the criminal case elevated on appeal by private respondents.

Such digression from the judgment unconditionally accepted by the other members of the Court does not impress
me as being concordant with the Rules of Court and decisional law. What is before us in the case at bar is an
original civil action invoking the extraordinary writ of certiorari for the imposition of the correct penalty specified
by law, which legal duty respondent judge refused to comply with in grave abuse of his judicial discretion.1 On the
other hand, the criminal case with which it is sought to be consolidated is an appellate recourse wherein the relief
sought is primarily the reversal of the finding of guilt and the absolution of private respondents.

Evidently, the determinative issues involved and the limited relief sought in the present special civil action are
entirely different from the issues for resolution and the modificatory judgment desired in the appealed criminal
case. The basic rule in consolidation of cases in civil procedure 2 requires, among others, the same subject matter
and the existence of a common question of law or fact. This is essentially the same as the rule on consolidation in
criminal procedure3 which contemplates charges for offenses founded on the same facts, or forming part of a series
of offenses of similar character.

Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal actions, and
not a special civil action in combination with the former. The impropriety of the latter situation is specially
underscored where the resolution of the controversy in the special civil action is a pre-judicial matter in the
appealed criminal case. These considerations apply to both the trial courts in the exercise of original jurisdiction
and to the appellate courts in the implementation of revisory power.

The purpose of the present original action for certiorari is to have the erroneous judgment of respondent judge —
erroneous because he imposed the wrong penalty — corrected on that score in the first instance. After such
correction shall have been effected, then the appeal from his judgment shall proceed for the desired review by this
Court to determine the guilt or innocence of appellants. The corrective action must proceed first and the resultant
amended judgment containing the proper penalty shall be the basis for the review as to whether appellants are
truly guilty and have to be meted that ultimate penalty. To have the certiorari action proceed simultaneously and in
unification with the appellate proceeding strikes me as an aberrant procedure. While it does not exactly square
with the figurative posture of putting the cart before the horse, it does result in the same absurdity of both the
horse and the cart moving abreast at the same time along the same judicial path.

It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate review be
conducted with the judgment containing an unauthorized penalty as the basis therefor, with this Court closing its
eyes to such a flagrant mistake. This time the cart precedes the horse. True, an appeal throws the judgment a
quoopen for review and the Court may raise the penalty to the appropriate punitive level. But, as the People
pertinently observes, what is there to prevent appellants from withdrawing their appeal upon sensing from the
arguments that, instead of the acquittal or reduced penalty aspired for, the ultimate denouement would be the
death sentence?

Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his appeal in the
appellate court.4 Generally, the withdrawal of an appeal before the filing of the appellee's brief in this Court is
permitted.5 Assuming that the Court denies the withdrawal of the appeal in order that the mistake in the penalty
imposed may be corrected in the judgment of the case on the merits,6 why should the appellate course of the
proceedings still have to be subject to such contingencies — with the inevitable waste of time and effort in the
formulation of alternative theories in two sets of pleadings by both parties — when with the decisive sweep of the
adjudgment here the doubts are dissipated and the real areas of contention are laid bare?

Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error from a
judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in the penalty is now
rectified with the death sentence being substituted therefor, as undeniably it should be, then the case will
consequently be before this Court on automatic review. That provision calling for automatic review when capital
punishment is inflicted7serves equally the interests of both the defense and the prosecution through protective
features established by case law.
Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of death and he
thereafter withdraws his appeal, the automatic review of the case shall nonetheless proceed, albeit without the
benefit of briefs or arguments from the accused.8 The automatic review of the case shall proceed even if the death
convict shall escape,9 as an exception to the provisions of Section 8, Rule 124, and such automatic review cannot be
waived. 10 The aforementioned beneficial effects are not provided for and may not be availed of by the accused in
an ordinary appeal to this Court.

The automatic review of the death sentence ensures the right of the condemned person to procedural due process
on appeal, and safeguards the interests of the State by exacting the corresponding penal sanction decreed by law.
The disposition adopted by the Court in this case subserves the ends of these fundamental policies, hence my
unqualified assent thereto.

VITUG, J., dissenting:

The ponencia itself indicates that the case against the convicted accused is already on appeal before this Court.
Thus, the instant petition, in my view, has become academic since an appeal brings the case wide open for review
and consideration. A ruling on the petition would be precipitate and might be so perceived as peremptory on the
imposition of the death penalty.

With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it should at the
very least be consolidated with the appealed case.

Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.

4. ANGEL MASCUÑANA and ANGELES M. VERDEFLOR, Petitioners-Appellants, v. THE PROVINCIAL

BOARD OF NEGROS OCCIDENTAL, MUNICIPAL COUNCIL OF TALISAY, NEGROS OCCIDENTAL, LEON T.
TREYES, ULPIANA INSON, GONZALO ORDANIEL and FLORENTINO GARGALLANO, Respondents-
Appellees.

DECISION

AQUINO, J.:

This appeal is about the legality of Resolution No. 59, dated September 8, 1962, of the municipal council of Talisay,
Negros Occidental, declaring, as municipal property closed to vehicular traffic, a piece of land situated near the
intersection of Burgos and Rizal Streets and adjacent to the bank of the Minuluan River and to some lots of the
Talisay cadastre.

According to the petition, among those adjacent lots are Lot No. 80 owned by Angel Mascuñana and Lots 81-A, 81-B
and 81-C registered in the names of his children, Angeles M. Verdeflor, Angel, Jr. and Manuel.

Angel Mascuñana alleged that the piece of land in question is the terminus or extension of Burgos Street. It is
occupied by Councilor Leon T. Treyes, Ulpiana Inson, Gonzalo Ordaniel and Florentino Gargallano who had
constructed houses thereon.

Mascuñana and his daughter, Angeles, in a letter dated March 20, 1962 informed the mayor of Talisay that portion
of Burgos Street was occupied by squatters. Mascuñana said that the constructions of the squatters were
prejudicial to the public particularly to the owner of Lot No. 81-A, his daughter Angeles, who wanted to build a
residential house on her lot. Mascuñana asked the mayor to take the necessary steps to clear the area of squatters
so that the public could use that part of Burgos Street.

The mayor took up Mascuñana’s request with the municipal council. The council indorsed Mascuñana’s letter to
the municipal treasurer for verification, opinion and comment.
The treasurer found that the alleged portion or extension of Burgos Street mentioned in Mascuñana’s letter is the
property of the municipality of Talisay. The treasurer was not certain as to whether the said land had been used as
a street, or had been withdrawn from that use or had been abandoned or had never been designated for public use.
To determine the "character" of the said land, he suggested that the matter be referred to the municipal attorney
for further study.

On July 30, 1962 the acting provincial fiscal, to whom the matter was referred by the municipal attorney of Talisay,
rendered the opinion that "Burgos Street is a municipal street and under the law is a property devoted for public
use" and is outside the commerce of man; that there was no record to show that portion of Burgos Street in
question had been withdrawn from public use by the municipal council, and that nonuser alone would not destroy
its public nature.

The members of the municipal council of Talisay made an ocular inspection of the questioned area. They concluded
that there was no valid reason for opening it to vehicular traffic. The council passed the aforementioned Resolution
No. 59 which reads in part as follows:

". . ., THE COUNCIL RESOLVED, that considering the abovementioned portion of land being a municipal property,
therefore, to declare the same as closed or not necessary for vehicular traffic.

"FURTHER RESOLVED, that this Body will take up on their next coming session the question of the residents
presently having their houses located on the portion of land referred to in this resolution."

A month later, or on October 20, 1962, the municipal council passed Resolution No. 82 wherein it referred once
more to the provincial fiscal the question of whether the municipality has legal authority "to dispose of, lease,
transfer, sale (sell), mortgage and subdivide to the present occupants" the land in question.

In a letter dated November 2, 1962 the acting provincial fiscal informed the municipal council of Talisay that the
closure of a municipal street is governed by section 2246 of the Revised Administrative Code which authorizes a
municipal council to close a municipal road, street, alley, park or square, after indemnifying any person prejudiced
thereby, and to use or convey for any lawful purpose such property withdrawn from public servitude.

The fiscal advised that any resolution approving the closure of the street should be accompanied with the following
data required in a circular of the Executive Bureau: (I) the recommendation of the district engineer; (2) certified
copies of documents executed by owners of lots adjacent to the street to be closed waiving all claims for damages
to their respective properties, and (3) a statement of the provincial fiscal as to the sufficiency of the documents
submitted.

The matter did not end there. The controversy was elevated to the provincial board of Negros Occidental. That
board resolved on June 26, 1964 to make an ocular inspection of Burgos Street together with the municipal council
of Talisay, the parties concerned and the provincial fiscal.

After that ocular inspection, or on June 30, 1965, the provincial fiscal rendered an opinion upholding the validity of
the municipal council’s Resolution No. 59 and stating that the council may dispose of the land in question, as its
patrimonial property, in any manner which it may deem proper. The opinion contains the following findings:

"The immediate conclusion reached after the investigation is that the parcel of land claimed to be an extension of
Burgos Street of the Municipality of Talisay does not practically exist as a street; there is a small alley between
houses from a meeting of two streets leading towards a creek passable by one person at a time or with one
following another with a length of about twenty meters. Even without those houses, the width of the alley could not
be widened to conform with Burgos Street as it is on the brink of a creek which in turn connects to the open sea.
That portion of land cannot be even considered as part of Burgos Street nor (may) it be properly called a
thoroughfare. Such being the case, the requirement of Section 2246 of the Revised Administrative Code need not be
complied with."
In view of those findings, the provincial board passed on July 30, 1965 Resolution No. 1035 approving the
municipal council’s Resolution No. 59.

More than seven months later, or on March 15, 1966, Mascuñana and his daughter Angeles filed in the Court of
First Instance of Negros Occidental against the provincial board, the municipal council and the four occupants of
the area in question, namely, Councilor Leon T. Treyes, Ulpiana Inson, Gonzalo Ordaniel and Florentino Gargallano,
a petition wherein they prayed that Resolution No. 59 of the municipal council and Resolution No. 1035 of the
provincial board be declared void. They also prayed for other equitable relief.

Annexed to the said petition is a cadastral map showing the lots and streets in the Talisay poblacion. That map of
the Talisay cadastre, which was traced by Adolfo T. Treyes on July 25 and 26, 1960 under the supervision of Rafael
Guerrero, Jr., a private land surveyor, is known as Index Sheet No. 102, approved by the Director of Lands on
February 25, 1916. It shows that while Burgos Street ends at the bank of the river (its mouth apparently), Zamora,
Capitan Saba, Libertad and Bonifacio Streets end at the shores of Guimaras Strait.

The petitioners alleged that a verification of the cadastral map would show that the disputed area, which is
between Lots 82 and 81, was originally a part of Burgos Street. They further alleged that Resolution No. 59 is void
because there was no compliance with the three requisites, prescribed in section 161 of the Compilation of
Provincial Circulars of the Executive Bureau, for the closure of municipal streets as authorized in section 2246 of
the Revised Administrative Code.

The petitioners insinuated that the municipal council was influenced by Councilor Treyes, one of the occupants of
the disputed area. They alleged that the provincial board made itself a party to an illegal act in order to justify the
stay of Councilor Treyes in that area.

The provincial board in its answer alleged that section 2246 cannot be invoked because the disputed portion is not
a part of Burgos Street. The municipal council did not file any answer. The four private respondents filed motions
to dismiss.

In his motion respondent Treyes alleged that he had occupied a part of the disputed area since 1942 and that he
had constructed thereon a house worth not less than P47,000 while his three co-respondents had occupied the
area for more than twenty years. For that reason, according to Treyes, the remedy of declaratory relief is not
proper in this case since it would not terminate the uncertainty or controversy. Treyes further alleged that if, as
shown in Mascuñana’s letter to the mayor, he had subdivided his lot and transferred it to his three children, he is
not a real party in interest. The other three private respondents adopted the arguments of Treyes in their motion
to dismiss.

The petitioners in their opposition contended that their action might be treated as an action for prohibition
wherein they seek to enjoin the enforcement of Resolution No. 59.

The lower court issued a minute or laconic order dated August 8, 1966 which reads: "Finding the argument in
support of the motion to dismiss to be well-founded, the petition dated March 7, 1966 is hereby dismissed." It
denied petitioners’ motion for reconsideration in the same court manner: "Finding the Motion for Reconsideration
to be without merit, the same is hereby denied."

Mascuñana and Angeles M. Verdeflor appealed. The four private respondents did not file any appellees’ brief. The
fiscal filed an appellees’ brief for the provincial board and the municipal council (The council, being in default for
not having answered the petition, had no right to file an appellees’ brief).

The issue is whether the petition states a cause of action which the trial court should have tried on the merits
instead of having summarily dismissed it in a minute order or the basis of the private respondents’ motions to
dismiss and without having discussed petitioners’ contentions.
As Angel Mascuñana had transferred his Lot 81 to his children, he might have ceased to have a direct interest in the
opening to vehicular traffic of the disputed area. But his co-petitioner, Angeles M. Verdeflor, as the owner of Lot 81-
A, has such an interest because that lot is adjacent to the said area. (Note that the cadastral map shows that Lot 80,
belonging to Angel Mascuñana, as a lot distinct and separate from Lot 81, has some proximity to the disputed area).

The petitioners labor under the impression that their action is for declaratory relief. On the other hand, the fiscal,
as counsel for the provincial board, contends that an action to declare void Resolution No. 59 of the municipal
council is not an action for declaratory relief because section 1, Rule 64 of the Rules of Court refers to an ordinance
and not to a resolution.

A municipal ordinance is not the same as a resolution of the municipal council. Legislative acts passed by the
municipal council in the exercise of its lawmaking authority are denominated ordinances (Sec. 2227, Revised
Administrative Code).

A resolution is less solemn and formal than an ordinance. It "is an act of a special or temporary character, not
prescribing a permanent rule of government, but is merely declaratory of the will or opinion of a municipal
corporation in a given matter, and in the nature of a ministerial or administrative act, and is not a law" (62 C.J.S.
786-7).

In reality, petitioners’ action is not for declaratory relief but is an ordinary action for the enforcement of section
2246 of the Revised Administrative Code and for the opening to vehicular traffic of the disputed area. That section
reads as follows:

"SEC. 2246. Authority to close thoroughfare. — With the prior authorization of the Department Head, a municipal
council may close any municipal road, street, alley, park, or square; but no such way or place aforesaid, or any part
thereof, shall be closed without indemnifying any person prejudiced thereby.

"Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real
property belonging to the municipality might be lawfully used or conveyed."

As stated on pages 9 to 11 of their brief, petitioners’ contention is that Resolution No. 59 is void because the
municipal council did not observe the requisites delineated in section 161 of the Compilation of Provincial
Circulars which requisites were prescribed by the Executive Bureau for the implementation of section 2246.

If the disputed area is proven to have been a part of Burgos Street, as the cadastral map seems to indicate, and if its
closure to vehicular traffic, as effectuated under Resolution No. 59, is held to be illegal, petitioner Verdeflor might
claim damages.

Thus, in Abella v. Municipality of Naga, 90 Phil. 385, it was held that where the municipality closed that part of a
municipal street, which ran between the public market and the plaintiff’s property, and the said adjoining property
owner was admittedly damaged by such action, he was entitled to recover the amount of the damage by virtue of
section 2246. The municipality’s contention that it was not liable for damages because it acted in the exercise of its
police power and for the public welfare was not sustained. (Compare with Unson v. Lacson and Genato Commercial
Corp., 100 Phil. 695 and 112 Phil. 752, regarding the lease of a part of a Manila street to a private firm which was
declared void).

Mascuñana’s letter to the mayor shows petitioners’ cause of action. In that better, he requested the mayor to clear
the disputed area of squatters because their constructions are prejudicial to the public in general and, in particular,
to petitioner Verdeflor as owner of Lot 81-A.

From petitioners’ viewpoint, they have reason to complain of a delict or wrong caused by the closure of the
disputed area to vehicular traffic due to the acts of the private respondents in occupying that area and to the act of
the public respondents in giving to that closure a semblance of legality by means of their resolutions which have
been questioned by the petitioners in this case.

The finding of the fiscal and other provincial officials during their ocular inspection that the disputed area is not a
part of Burgos Street because it is not passable at all strengthens petitioners’ cause of action that the resolution
declaring it closed to vehicular traffic should be voiced and that the area should be cleared of squatters so that it
could be used by the public.

If, as revealed in the cadastral map, the disputed area was originally a part of Burgos Street, then the constructions
of the four private respondents on said area, which obstruct and interfere with the free passage of the street, may
possibly be characterized as a nuisance which can be abated summarily (Arts. 694 and 695, Civil Code; Letter of
Instruction No. 19, dated October 2, 1972, 68 O. G. 7962; Sitchon v. Aquino, 98 Phil. 458).

The trial court in disposing of the case in a minute order gave the impression that it had ignored or cavalierly
treated petitioners’ contentions.

It is true that there is no rule requiring a trial court to make findings of fact and law in an order of dismissal. The
constitutional requirement of making findings of fact and law applies only to decisions. Nevertheless, it should be
borne in mind that a trial court’s order dismissing a complaint or petition is appealable like a final judgment.
Therefore, for the satisfaction of the losing party and to assist the appellate court in resolving the appeal, the trial
court should take some pains to reason out its order of dismissal and should not merely incorporate therein, by
reference, the motion to dismiss.

We should not be understood as having prejudged this case in favor of the petitioners-appellants. What is being
underscored is that the ends of justice would be better served by holding in this case a trial on the merits if no
amicable settlement is arrived at during the pre-trial or if there is no agreed statement of facts. The legal points
raised by the petitioners should be resolved in a decision on the merits of the case.

WHEREFORE, the trial court’s minute order of dismissal is reversed and set aside with costs against the
private Respondents-Appellees.

SO ORDERED.