SPOUSES DANILO and CRISTINA DECENA, vs.

SPOUSES PEDRO and VALERIA hence, the trial court acted conformably with Section 1(c), Rule 16 of the Rules of
PIQUERO Court when it ordered the dismissal of the complaint.
G.R. No. 155736. March 31, 2005

Facts: Spouses Danilo and Cristina Decena were the owners of a house and lot in
Parañaque City. The petitioners and the respondents, the Spouses Pedro and
Valeria Piquero, executed a Memorandum of Agreement in which the former sold
the property to the latter for P940,250.00 payable in six (6) installments via
postdated checks. The vendees forthwith took possession of the property. It
appears in the MOA that the petitioners obliged themselves to transfer the
property to the respondents upon the execution of the MOA with the condition that
if two of the postdated checks would be dishonored by the drawee bank, the latter
would be obliged to reconvey the property to the petitioners. On May 17, 1999, the
petitioners, then residents of Malolos, Bulacan, filed a Complaint against the
respondents with the RTC Malolos, Bulacan, for the annulment of the sale/MOA,
recovery of possession and damages. The petitioners alleged therein that, they did
not transfer the property to and in the names of the respondents as vendees
because the first two checks drawn and issued by them in payment for the
purchase price of the property were dishonored by the drawee bank, and were not
replaced with cash despite demands therefor.

Issue: Whether or not venue was properly laid by the petitioners in the RTC of
Malolos, Bulacan.

Held: After due consideration of the foregoing, we find and so rule that Section
5(c), Rule 2 of the Rules of Court does not apply. This is so because the petitioners,
as plaintiffs in the court a quo, had only one cause of action against the
respondents, namely, the breach of the MOA upon the latter’s refusal to pay the
first two installments in payment of the property as agreed upon, and turn over to
the petitioners the possession of the real property, as well as the house constructed
thereon occupied by the respondents. The claim for damages for reasonable
compensation for the respondents’ use and occupation of the property, in the
interim, as well as moral and exemplary damages suffered by the petitioners on
account of the aforestated breach of contract of the respondents are merely
incidental to the main cause of action, and are not independent or separate causes
of action. The action of the petitioners for the rescission of the MOA on account of
the respondents’ breach thereof and the latter’s failure to return the premises
subject of the complaint to the petitioners, and the respondents’ eviction therefrom
is a real action. As such, the action should have been filed in the proper court
where the property is located, namely, in Parañaque City, conformably with
Section 1, Rule 4 of the Rules of Court. Since the petitioners, who were residents of
Malolos, Bulacan, filed their complaint in the said RTC, venue was improperly laid;
SPS. PEREZ V HERMANO Jan 17, 2000 – Respondent filed a “motion with leave to dismiss the complaint or
ordered severed for separate trial” arguing there was a misjoinder of causes of
[GR NO. 147417] | [July 8,2005] | [Chico-Nazario]
action under Sec 6 Rule 2 which was granted in an order dated Feb 28, 2000
CASE SUMMARY Must be recit ready. Important facts and ruling of the court plus
March 21, 2000 – petitioners received the order
basis
March 23, 2000 – petitioners moved for motion for reconsideration, which was
Petitioners filed a case for the enforcement of contract and damages against
denied by the trial court on May 25, 2000, and received by petitioners on June 18,
respondent. Respondent filed a motion to dismiss the complaint arguing there
2000.
was a misjoinder of causes of action, which the RTC granted. The RTC dismissed
the MR which was denied, and on appeal through a Rule 65 petition for certiorari, August 17, 2000 – petitioners filed original action for certiorari before the CA
the CA dismissed for having been filed beyond the reglementary period. The imputing grave abuse of discretion on the part of the RTC in dismissing the
Supreme Court ruled first that the case was not filed beyond the reglementary complaint against respondent
period, as Section 4 on Rule 65 was amended by AM No. 00-23-SC, which clarified
CA dismissed the petition for having been filed beyond the reglementary period
the 60 day rule that such 60-day period starts to run from receipt of notice of the
pursuant to Sec 4 Rule 65 of the 1997 Rules on Civil Procedure amended by A.M.
denial of the MR, if one is filed.. They also said that there was no misjoinder of
No. 00-2-03-50
causes of action, as there were various questions of fact and law common to both
Zescon Land, Inc., and respondent Hermano arising from a series of transactions PROCEDURE SUMMARY
over the same properties. The RTC found that there was no joinder on the parties,
hence the misjoinder, but the Supreme Court found that if the joinder involves Action (Petition for review, appeal of Decision (RTC: petition denied)
different parties, as in this case, there must be a question of fact or of law CA decision etc.)
common to both parties joined, arising out of the same transaction or series of Civil Case for Enforcement of contract
transactions. Such questions were sufficiently alleged in the complaint by and damages w/ prayer for TRO w/ RTC
Petitioners in their complaint. by PET
DOCTRINE copy SCRA syllabus related to the topic if possible Motion w/ leave to dismiss the RTC: Motion Granted
It is well to remember that the joinder of causes of action may involve the same complaint due to misjoinder of causes
parties or different parties. If the joinder involves different parties, as in this case, of action by RESP
there must be a question of fact or of law common to both parties joined, arising MR by PET RTC: MR Denied
out of the same transaction or series of transactions.
Original Action for Certiorari alleging CA: Petition Dismissed; filed beyond
FACTS bullet points GAD by RTC period
April 27, 1998 - Petitioners filed a civil case for enforcement of contract and Rule 45 to the SC SC: Reversed CA Decision
damages with prayer for the issuance of a TRO and/or preliminary injunction
against respondent before QC RTC.
ISSUE state all issues first. Bold the one related to the subject
1. WON PETS FILED WITHIN REGLEMENTARY PERIOD  YES
2. WON RTC JUDGE GRAVELY ABUSED HIS DISCRETION IN DROPPING THE
CASE DUE TO MISJOINDER OF CAUSES OF ACTION?  YES
2. YES. There was no Misjoinder on Causes of action in the current case.
RATIO Bold important words or phrases
1. WON  YES. Sec 4 was amended by A.M. No. 00-2-03-SC, and
amendment should be applied retroactively because it is considered
curative in nature, as it remedied the confusion caused by the original
Circular No. 39-98
a. At the time petitioners filed their petition for certiorari (August
17, 2000) the rule then prevailing was Sec 4 Rule 65 as amended
by Circular No. 39-98. However, on September 1, 2000, Sec 4 was
amended by A.M. No. 00-2-03- SC to read:
“Sec 4 – The petition shall be filed not later than 60 days from
notice of the judgment or order resolution. In case of a motion for
reconsideration or new trial is timely filed, whether such motion is
required or not, the 60-day period shall be counted from notice of
the denial of said motion.”
i. Under the amendment, the 60-day period starts to run
from receipt of notice of the denial of the MR, if one is
filed.
b. The amendment should be applied retroactively because it is
considered curative in nature, as it remedied the confusion
caused by Circular No. 39-98 (because prior to the amendment, a
party had a fresh period from receipt of the order denying the MR
to file a petition for certiorari)
c. Curative statutes, enacted to cure defects in a prior law or to
validate legal proceedings, by their very essence, are retroactive.
And being a procedural rule, such are construed to be applicable
to actions pending and undetermined at the time of their
passage, and are deemed retroactive.
d. Petitioners had a fresh period of 60 days from June 18. When they
filed on Aug. 17, exactly 60 days had lapsed.
a. The rule on misjoinder of causes of action is found in Sec 6 Rule
2. There is misjoinder of causes of action when the conditions for
joinder under Sec 5 Rule 2 are not met. It is the first condition - on
joinder of parties - that the trial court deemed to be lacking. It is
well to remember that the joinder of causes of action may involve
the same parties or different parties. If the joinder involves
different parties, as in this case, there must be a question of fact
or of law common to both parties joined, arising out of the same
transaction or series of transactions.
b. In herein case, petitioners have adequately alleged in their
complaint that after they had already agreed to enter into a
contract to sell with Zescon Land, Inc., through Sales-Contreras,
the latter also gave them other documents to sign, to wit: A Deed
of Absolute Sale over the same properties but for a lower
consideration, two mortgage deeds over the same properties in
favor of respondent Hermano with accompanying notes and
acknowledgment receipts for Ten Million pesos (P10,000,000)
each. Petitioners claim that Zescon Land, Inc., through Sales-
Contreras, misled them to mortgage their properties which they
had already agreed to sell to the latter
c. Reasonably apparent that there are questions of fact and law
common to both Zescon Land, Inc., and respondent Hermano
arising from a series of transactions over the same properties.
i. Question of fact, of whether or not Zescon Land, Inc.,
indeed misled petitioners to sign the mortgage deeds in
favor of respondent Hermano.
 ii. Question of which of the four contracts were validly
entered into by the parties.

iii. Question of whether or not Zescon Land, Inc., as

represented by Sales-Contreras, and respondent
Hermano committed fraud against petitioners as to make
them liable for damages.

d. Thus, respondent Hermano will definitely be affected if it is

subsequently declared that what was entered into by petitioners
and Zescon Land, Inc., was a Contract of Sale.

e. Prescinding from the foregoing, and bearing in mind that the

joinder of causes of action should be liberally construed as to
effect in one action a complete determination of all matters in
controversy involving one subject matter, we hold that the trial
court committed grave abuse of discretion in severing from the
complaint petitioners cause of action against respondent
Hermano.

DECISION bullet points. Don’t copy and paste

 Petition GRANTED

 CA Decision REVERSED

 RTC ordered to reinstate Hermano as a defendant

FIRST DIVISION G.R. No. 164041. July 29, 2005

ROSENDO ALBA, minor, represented by his mother and natural guardian, Armi A. NO. Petition is Dismissed.
Alba, and ARMI A. ALBA, in her personal capacity, petitioners, vs. COURT OF
Under Section 2, Rule 47 of the 1997 Revised Rules of Civil Procedure, judgments
APPEALS and ROSENDO C. HERRERA, respondents.
may be annulled on the grounds of lack of jurisdiction and extrinsic fraud.[19]
PONENTE: YNARES-SANTIAGO, J.
Whether or not the trial court acquired jurisdiction over the person of petitioner
Facts: and her minor child depends on the nature of private respondents action, that is,
in personam, in rem or quasi in rem. An action in personam is lodged against a
On 21 October 1996, respondent filed a petition in RTC Manila for cancellation of
person based on personal liability; an action in rem is directed against the thing
entries in the birth certificate of petitioner minor, to wit: (1) minor’s surname
itself instead of the person; while an action quasi in rem names a person as
‘Herrera’; (2) his filiation as father; and (3) marriage to minor’s mother, Armi,
defendant, but its object is to subject that persons interest in a property to a
alleging they are false and that he married only once with Ezperanza Santos.
corresponding lien or obligation.[20]
On 13 January 1997, the RTC issued an Amended Order re - scheduling the
Hence, petitions directed against the thing itself or the res,[21] which concerns
hearing of petition to 26 February 1997. Copy of which was published in ‘Today’ in
the status of a person,[22] like a petition for adoption,[23]annulment of marriage,
its Jan 20, 27, and Feb 3, 1997 issues, and were also sent to Armi at No. 418
[24] or correction of entries in the birth certificate,[25] as in the instant case, are
Arquiza St., Ermita, Manila (address per minor’s birth certificate), Local Civil
actions in rem.
Registrar and Solicitor General.
In an action in personam, jurisdiction over the person of the defendant is
During the hearing, only OSG appeared but filed no opposition, while Armi was
necessary for the court to validly try and decide the case. In a proceeding in rem
not present for she did not receive the Order, the address provided being wrong.
or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite
On 1 April 1997, the RTC granted the petition which became final on 2 June 1997.
to confer jurisdiction on the court, provided that the latter has jurisdiction over
On 24 November 2000, petitioners filed a petition for annulment of judgment
the res. Jurisdiction over the res is acquired either (a) by the seizure of the
with CA on the grounds of extrinsic fraud and lack of jurisdiction over their
property under legal process, whereby it is brought into actual custody of the law;
person.
or (b) as a result of the institution of legal proceedings, in which the power of the
Armi averred that: (1) respondent knew all along of her true address where they court is recognized and made effective.[26]The service of summons or notice to
cohabited as husband of wife, result of which is the minor; and (2) she knew of the defendant is not for the purpose of vesting the court with jurisdiction but
the decision only on 26 February 1998; hence due process was denied. On 27 merely for satisfying the due process requirements.[27]

February 2004, CA dismissed the petition. Motion for reconsideration was denied In the case at bar, the filing with the trial court of the petition for cancellation
hence, the instant petition for certiorari. vested the latter jurisdiction over the res. Substantial corrections or cancellations
of entries in civil registry records affecting the status or legitimacy of a person may
Issues: be effected through the institution of a petition under Rule 108 of the Revised
1. Whether or not jurisdiction over Armi’s person was NOT acquired; and Rules of Court, with the proper Regional Trial Court.[28] Being a proceeding in
rem, acquisition of jurisdiction over the person of petitioner is therefore not
2. Whether or not extrinsic fraud is present, to warrant annulment of required in the present case. It is enough that the trial court is vested with
judgment. jurisdiction over the subject matter.
Ruling:
The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication
thereof in a newspaper of general circulation in Manila, sufficiently complied with
the requirement of due process, the essence of which is an opportunity to be
heard. Said address appeared in the birth certificate of petitioner minor as the
residence of Armi. Considering that the Certificate of Birth bears her signature,
the entries appearing therein are presumed to have been entered with her
approval. Moreover, the publication of the order is a notice to all indispensable
parties, including Armi and petitioner minor, which binds the whole world to the
judgment that may be rendered in the petition. An in rem proceeding is validated
essentially through publication.[29] The absence of personal service of the order
to Armi was therefore cured by the trial courts compliance with Section 4, Rule
108, which requires notice by publication, thus:
SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by
an order, fix the time and place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.
In Barco v. Court of Appeals, the trial court granted a petition for
correction/change of entries in a minors birth certificate to reflect the name of
the minors real father as well as to effect the corresponding change of her
surname. In seeking to annul said decision, the other children of the alleged
father claimed that they are indispensable parties to the petition for correction,
hence, the failure to implead them is a ground to annul the decision of the trial
court. The Court of Appeals denied the petition which was sustained by this Court
on the ground, inter alia, that while petitioner is indeed an indispensable party,
the failure to implead her was cured by the publication of the order of hearing.
Thus
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule108. Her
interest was affected by the petition for correction, as any judicial determination
that June was the daughter of Armando would affect her wards share in the
estate of her father. It cannot be established whether Nadina knew of Mary Joys
existence at the time she filed the petition for correction. Indeed, doubt may
always be cast as to whether a petitioner under Rule 108 would know of all the
parties whose interests may be affected by the granting of a petition. For example,
a petitioner cannot be presumed to be aware of all the legitimate or illegitimate
offsprings of his/her spouse or paramour. The fact that Nadina amended her
petition to implead Francisco and Gustilo indicates earnest effort on her part to
comply with Section 3 as quoted above. Yet, even though Barco was not
impleaded in the petition, the Court of Appeals correctly pointed out that the
defect was cured by compliance with Section 4, Rule 108, which requires notice
by publication, thus:
Section 4. Upon the filing of the petition, the court shall, by order, fix the time and
place for the hearing of the same, and cause reasonable notice thereof to be
given to the persons named in the petition. The court shall also cause the order to
be published once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
The purpose precisely of Section 4, Rule 108 is to bind the whole world to the
subsequent judgment on the petition. The sweep of the decision would cover
even parties who should have been impleaded under Section 3, Rule 108, but
were inadvertently left out. The Court of Appeals correctly noted:
The publication being ordered was in compliance with, and borne out by the
Order of January 7, 1985. The actual publication of the September 22, 1983 Order,
conferred jurisdiction upon the respondent court to try and decide the case.
While nobody appeared to oppose the instant petition during the December 6,
1984 hearing, that did not divest the court from its jurisdiction over the case and
of its authority to continue trying the case. For, the rule is well-settled, that
jurisdiction, once acquired continues until termination of the case.
Verily, a petition for correction is an action in rem, an action against a thing and
not against a person. The decision on the petition binds not only the parties
thereto but the whole world. An in rem proceeding is validated essentially
through publication. Publication is notice to the whole world that the proceeding
has for its object to bar indefinitely all who might be minded to make an objection
of any sort against the right sought to be established. It is the publication of such
notice that brings in the whole world as a party in the case and vests the court
with jurisdiction to hear and decide it.[30]
Furthermore, extrinsic fraud, which was private respondents alleged concealment
of Armis present address, was not proven. Extrinsic fraud exists when there is a
fraudulent act committed by the prevailing party outside of the trial of the case,
whereby the defeated party was prevented from presenting fully his side of the
case by fraud or deception practiced on him by the prevailing party.
Here, Armi contended that private respondent is aware of her present address
because they lived together as husband and wife in the condominium unit from
1982 to 1988 and because private respondent continued to give support to their
son until 1998.
To prove her claim, she presented (1) private respondents title over the
condominium unit; (2) receipts allegedly issued to private respondent for
payment of homeowners or association dues; (2) a photocopy of a January 14,
1991 deed of sale of the subject unit in favor of Armi; and (3) the subsequent title
issued to the latter. However, these documents only tend to prove private
respondents previous ownership of the unit and the subsequent transfer thereof
to Armi, but not the claimed live-in relationship of the parties. Neither does the
sale prove that the conveyance of the unit was part of private respondents
support to petitioner minor. Indeed, intimate relationships and family relations
cannot be inferred from what appears to be an ordinary business transaction.
Although the January 14, 1991 deed of sale[31] stated that Armi resides at 1175 L.
Guerrero St., Ermita, Manila, the same is not sufficient to prove that private
respondent has knowledge of Armis address because the former objected to the
offer of the deed for being a mere photocopy.[32] The counsel for petitioners
even admitted that they do not have the original of the deed and that per
certification of the Clerk of Court, the Notary Public who notarized the deed of
sale did not submit a copy of the notarized document as required by the rules.[33]
The deed cannot thus be the basis of ascribing knowledge of Armis address to
private respondent inasmuch as the authenticity thereof was neither admitted by
private respondent nor proven by petitioners.
While Armi presented the alleged love letters/notes from private respondent,
they were only attached as annexes to the petition and not formally offered as
evidence before the Court of Appeals. More importantly, said letters/notes do not
have probative value because they were mere photocopies and never proven to
be an authentic writing of private respondent. In the same vein, the affidavits[34]
of Armi and her sister, Corazon Espiritu, are of no evidentiary weight. The basic
rule of evidence is that unless the affiants themselves are placed on the witness
stand to testify on their affidavits, such affidavits must be rejected for being
hearsay. Stated differently, the declarants of written statements pertaining to
disputed facts must be presented at the trial for cross-examination.[35] Inasmuch
as Armi and her sister were not presented before the Court of Appeals to affirm
the veracity of their affidavits, the same are considered hearsay and without
probative value.
Ei incumbit probotio qui dicit, non qui negat. He who asserts, not he who denies,
must prove.[36] Armis claim that private respondent is aware of her present
address is anchored on the assertion of a live-in relationship and support to her
son. Since the evidence presented by Armi is not sufficient to prove the purported
cohabitation and support, it follows that private respondents knowledge of Armis
address was likewise not proven. Thus, private respondent could not have
deliberately concealed from the court that which was not shown to be known to
him. The Court of Appeals therefore correctly dismissed the petition for
annulment of judgment on the ground of failure to establish extrinsic fraud.
The proper remedy of a party aggrieved by a decision of the Court of Appeals in
an action to annul a judgment of a Regional Trial Court is a petition for review on
certiorari under Rule 45 of the Revised Rules of Civil Procedure, where only
questions of law may be raised. The resort of petitioner to the instant civil action
for certiorari under Rule 65 is therefore erroneous. The special civil action of
certiorari will not be allowed as a substitute for failure to timely file a petition for
review under Rule 45, which should be instituted within 15 days[37] from receipt
of the assailed decision or resolution. The wrong choice of remedy thus provides
another reason to dismiss this petition.[38]
Finally, petitioner failed to establish the merits of her petition to annul the trial
courts decision.
In an action for annulment of judgment, the petitioner must convince the court
that something may indeed be achieved should the assailed decision be annulled.
[39] Under Article 176[40] of the Family Code as amended by Republic Act (RA)
No. 9255, which took effect on March 19, 2004, illegitimate children shall use the
surname of their mother, unless their father recognizes their filiation, in which
case they may bear the fathers surname. In Wang v. Cebu Civil Registrar,[41] it was
held that an illegitimate child whose filiation is not recognized by the father, bears
only a given name and his mothers surname.
The name of the unrecognized illegitimate child identifies him as such. It is only
when said child is recognized that he may use his fathers surname, reflecting his
status as an acknowledged illegitimate child.

In the present case, it is clear from the allegations of Armi that petitioner minor is
an illegitimate child because she was never married to private respondent.

Considering that the latter strongly asserts that he is not the father of petitioner
minor, the latter is therefore an unrecognized illegitimate child. As such, he must
bear the surname of his mother.

G.R. No. 175799

NM ROTHSCHILD & SONS (AUSTRALIA) LIMITED, Petitioner, v. LEPANTO

CONSOLIDATED MINING COMPANY,Respondent.

LEONARDO-DE CASTRO, J.:

FACTS:
Respondent Lepanto Consolidated Mining Company filed with the RTC of Makati
City a Complaint against petitioner NM Rothschild & Sons (Australia) Limited
praying for a judgment declaring the loan and hedging contracts between the
parties void for being contrary to Article 2018 of the Civil Code of the Philippines
and for damages. Upon respondents motion, the trial court authorized
respondents counsel to personally bring the summons and Complaint to the
Philippine Consulate General in Sydney, Australia for the latter office to effect
service of summons on petitioner.
The petitioner prayed for the dismissal of the Complaint on the following grounds:
(a) the court has not acquired jurisdiction over the person of petitioner due to the
defective and improper service of summons; (b) the Complaint failed to state a
cause of action and respondent does not have any against petitioner; (c) the
action is barred by estoppel; and (d) respondent did not come to court with clean
hands.
The RTC issued an Order denying the Motion to Dismiss. According to the trial
court, there was a proper service of summons through the Department of Foreign
Affairs (DFA) on account of the fact that the defendant has neither applied for a
license to do business in the Philippines, nor filed with the Securities and
Exchange Commission (SEC) a Written Power of Attorney designating some person
on whom summons and other legal processes maybe served. The trial court also
held that the Complaint sufficiently stated a cause of action. The other allegations
in the Motion to Dismiss were brushed aside as matters of defense which can best
be ventilated during the trial.
ISSUES:
I. Whether petitioner is a real party in interest
II. Whether or not it was proper for the petitioner to resort to a petition for
certiorari with the CA
III. Whether or not the lower courts correctly denied the Motion to Dismiss
HELD:
(1) Respondent points out that as of the date of the filing of the Petition, there is
no such corporation that goes by the name NM Rothschild and Sons (Australia)
Limited. Petitioner claims that NM Rothschild and Sons (Australia) Limited still
exists as a corporation under the laws of Australia under the new name Investec
Australia Limited. We find the submissions of petitioner on the change of its
corporate name satisfactory and resolve not to dismiss the present Petition for
Review on the ground of not being prosecuted under the name of the real party in
interest.
(2) We have held time and again that an order denying a Motion to Dismiss is an
interlocutory order which neither terminates nor finally disposes of a case as it
leaves something to be done by the court before the case is finally decided on the
merits. The general rule, therefore, is that the denial of a Motion to Dismiss
cannot be questioned in a special civil action for Certiorari which is a remedy
designed to correct errors of jurisdiction and not errors of judgment. However, we
have likewise held that when the denial of the Motion to Dismiss is tainted with
grave abuse of discretion, the grant of the extraordinary remedy of Certiorari may
be justified
The resolution of the present Petition therefore entails an inquiry into whether
the Court of Appeals correctly ruled that the trial court did not commit grave
abuse of discretion in its denial of petitioners Motion to Dismiss. A mere error in
judgment on the part of the trial court would undeniably be inadequate for us to
reverse the disposition by the Court of Appeals.
(3) As correctly ruled by both the RTC and the CA, the alleged absence of a cause
of action, the alleged estoppel on the part of petitioner, and the argument that
respondent is in pari delicto in the execution of the challenged contracts, are not
grounds in a Motion to Dismiss as enumerated in Section 1, Rule 16[17] of the
Rules of Court. Rather, such defenses raise evidentiary issues closely related to the
validity and/or existence of respondents alleged cause of action and should
therefore be threshed out during the trial.
As regards the allegation of failure to state a cause of action, while the same is
usually available as a ground in a Motion to Dismiss, said ground cannot be ruled
upon in the present Petition without going into the very merits of the main case.
In the case at bar, respondent asserts in the Complaint that the Hedging Contracts
are void for being contrary to Article 2018[25] of the Civil Code. Respondent
claims that under the Hedging Contracts, despite the express stipulation for
deliveries of gold, the intention of the parties was allegedly merely to compel
each other to pay the difference between the value of the gold at the forward
price stated in the contract and its market price at the supposed time of delivery.
The determination of whether or not the Complaint stated a cause of action
would therefore involve an inquiry into whether or not the assailed contracts are
void under Philippine laws. This is, precisely, the very issue to be determined. The
trial court, therefore, correctly denied the Motion to Dismiss on this ground.

Petitioner alleges that the RTC has not acquired jurisdiction over its person on
account of the improper service of summons. Summons was served on petitioner
through the DFA, with respondents counsel personally bringing the summons and
Complaint to the Philippine Consulate General in Sydney, Australia. Moreover, by
seeking affirmative reliefs from the trial court, petitioner is deemed to have
voluntarily submitted to the jurisdiction of said court. A party cannot invoke the
jurisdiction of a court to secure affirmative relief against his opponent and after
obtaining or failing to obtain such relief, repudiate or question that same
jurisdiction. Consequently, the trial court cannot be considered to have
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
the denial of the Motion to Dismiss on account of failure to acquire jurisdiction
over the person of the defendant.

NM ROTHSCHILD & SONS (AUSTRALIA) LIMITED vs LEPANTO CONSOLIDATED

MINING COMPANY

G.R. No. 175799

November 28, 2011

FACTS:

On August 30, 2005, Lepanto Consolidated Mining Company filed with the
Regional Trial Court of Makati City a Complaint against NM Rothschild & Sons
(Australia) Limited praying for a judgment declaring the loan and hedging
contracts between the parties void for being contrary to Article 2018 of the Civil
Code of the Philippines and for damages.
Upon respondent’s motion, the trial court authorized respondent’s counsel to
personally bring the summons and Complaint to the Philippine Consulate General
in Sydney, Australia for the latter office to effect service of summons on petitioner.
On October 20, 2005, petitioner filed a Special Appearance With Motion to
Dismiss praying for the dismissal of the Complaint on the grounds that the court
has not acquired jurisdiction over the person of petitioner due to the defective
and improper service of summons; the Complaint failed to state a cause of action;
respondent does not have any against petitioner; and other grounds.
On December 9, 2005, the trial court issued an Order denying the Motion to
Dismiss providing that there was a proper service of summons through the
Department of Foreign Affairs on account of the fact that the defendant has
neither applied for a license to do business in the Philippines, nor filed with the
Securities and Exchange Commission a Written Power of Attorney designating
some person on whom summons and other legal processes maybe served. The
trial court also held that the Complaint sufficiently stated a cause of action. The
other allegations in the Motion to Dismiss were brushed aside as matters of
defense which can best be ventilated during the trial.
On April 3, 2006, petitioner sought redress via a Petition for Certiorari with the
Court of Appeals, alleging that the trial court committed grave abuse of discretion
in denying its Motion to Dismiss.
On September 8, 2006, the Court of Appeals rendered the assailed Decision
dismissing the Petition for Certiorari.
Hence, petitioner filed the present petition assailing the Decision and Resolution
of the Court of Appeals.
ISSUE:
Whether or not the RTC is considered to have committed grave abuse of
discretion amounting to lack or excess of jurisdiction in the denial of the Motion
to Dismiss on account of its failure to acquire jurisdiction over the person of the
defendant.
HELD:
Petitioner alleges that the RTC has not acquired jurisdiction over its person on
account of the improper service of summons. Summons was served on petitioner
through the DFA, with respondent’s counsel personally bringing the summons and
Complaint to the Philippine Consulate General in Sydney, Australia.
Respondent argues that extraterritorial service of summons upon foreign private
juridical entities is not proscribed under the Rules of Court.
Section 15, Rule 14, however, is the specific provision dealing precisely with the
service of summons on a defendant which does not reside and is not found in the
Philippines.
Breaking down Section 15, Rule 14, it is apparent that there are only four
instances wherein a defendant who is a non-resident and is not found in the
country may be served with summons by extraterritorial service, to wit: (1) when
the action affects the personal status of the plaintiffs; (2) when the action relates
to, or the subject of which is property, within the Philippines, in which the
defendant claims a lien or an interest, actual or contingent; (3) when the relief
demanded in such action consists, wholly or in part, in excluding the defendant
from any interest in property located in the Philippines; and (4) when the
defendant non-resident's property has been attached within the Philippines. In
these instances, service of summons may be effected by (a) personal service out
of the country, with leave of court; (b) publication, also with leave of court; or (c)
any other manner the court may deem sufficient.
Undoubtedly, extraterritorial service of summons applies only where the action is
in rem or quasi in rem, but not if an action is in personam. . On the other hand,
when the defendant or respondent does not reside and is not found in the
Philippines, and the action involved is in personam, Philippine courts cannot try
any case against him because of the impossibility of acquiring jurisdiction over his
person unless he voluntarily appears in court
It is likewise settled that an action in personam is lodged against a person based
on personal liability; an action in rem is directed against the thing itself instead of
the person; while an action quasi in rem names a person as defendant, but its
object is to subject that person’s interest in a property to a corresponding lien or
obligation.
The Complaint in the case at bar is an action to declare the loan and Hedging
Contracts between the parties void with a prayer for damages. It is a suit in which
the plaintiff seeks to be freed from its obligations to the defendant under a
contract and to hold said defendant pecuniarily liable to the plaintiff for entering
into such contract. It is therefore an action in personam, unless and until the
plaintiff attaches a property within the Philippines belonging to the defendant, in
which case the action will be converted to onequasi in rem.

Since the action involved in the case at bar is in personam and since the
defendant, petitioner Rothschild/Investec, does not reside and is not found in the
Philippines, the Philippine courts cannot try any case against it because of the
impossibility of acquiring jurisdiction over its person unless it voluntarily appears
in court

In this regard, respondent vigorously argues that petitioner should be held to have
voluntarily appeared before the trial court when it prayed for, and was actually
afforded, specific reliefs from the trial court.

The Court therefore rule that petitioner, by seeking affirmative reliefs from the
trial court, is deemed to have voluntarily submitted to the jurisdiction of said
court. A party cannot invoke the jurisdiction of a court to secure affirmative relief
against his opponent and after obtaining or failing to obtain such relief, repudiate
or question that same jurisdiction

Consequently, the trial court cannot be considered to have committed grave

abuse of discretion amounting to lack or excess of jurisdiction in the denial of the
Motion to Dismiss on account of failure to acquire jurisdiction over the person of
the defendant.

Petition is DENIED.