NM ROTHSCHILD & SONS (AUSTRALIA) LIMITED vs LEPANTO Hence, petitioner filed the present petition assailing the Decision
etition assailing the Decision and
CONSOLIDATED MINING COMPANY
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.
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
Azajar vs. CA Nov. 10, 1986 accompanying it; and that notices shall be directed to the parties concerned
stating the time and place for the hearing of the motion. Failure to comply
FACTS: with the requirement is a fatal flaw.

Azajar purchased thru the agent of Cham Samco 100 kegs of nails of various
sizes and paid P18,000 in full. However, Cham Samco only delivered a part
of the quantity ordered. Azajar filed a complaint before the CFI of Cam Sur.
Instead of submitting an answer, Samco filed a motion to dismiss on two
grounds: failure of the complaint to state a cause of action and that venue
was improperly laid.
The motion to dismiss contained a notice addressed to the Clerk of Court.
Contending that such notice was fatally defective, Azajar filed a motion to
declare Samco in default, which the court granted. Azajar was allowed to
present evidence ex parte and the court rendered judgment against Samco.
Such notice is required to avoid surprises upon the opposite party and give
the latter time to study and meet the arguments of the motion as well as to
determine or make determinable the time of submission of the motion for
resolution.
Without the notice, the occasion would not arise to determine with
reasonable certitude whether and within what time the adverse party would
respond to the motion, and when the motion might already be resolved by
the Court.
The duty to give that notice is imposed on the movant and not on the court.

The TC justified its order of default in this wise: that instead of filling an
answer to the complaint, Samco filed a motion to dismiss which is not a
motion at all because the “notice” is directed to the Clerk of Court instead of
the party concerned (as required by Sec.5, Rule 15, RC) and is without the
requisite notice of hearing directed to the CC and not to the parties, and
merely stating that the same be submitted for resolution. It is without the
requisite notice of time and place of hearing.

Aggrieved, Samco went to CA for recourse, but the CA affirmed the decision
of the TC. However, on motion for reconsideration, CA reversed itself and
declared that technicalities should be brushed aside so that Samco can be
given a day in court.

ISSUE: WON the failure of Cham Samco to set its motion to dismiss for
hearing on a specified date and time and for not addressing the same to the
party interested is fatal to his cause.

HELD: Yes. Although the Court sided with CA that technicalities should be
set aside to Samco to be afforded with his day in court.

The law explicitly requires that notice of motion shall be served by the
appellant to all parties concerned at least 3 days before the hearing, together
with a copy of the motion, and of any affidavits and other papers
KKK FOUNDATIONVS. HON. ADELINA CALDERON-BARGAS
FACTS:On March 1, 2002, petitioner, filed a complaint for Annulment of
Extra-judicial Foreclosure of Real Estate Mortgage and/or Nullification of
Sheriff’s Auction Sale and Damages with Prayer for the Issuance of TRO
and/or Writ of Preliminary Injunction.3 Petitioner alleged that: (1) the auction
sale was made with fraud and/or bad faith since there was no public bidding;
(2) the sheriff did not post the requisite Notice of Sheriff’s Sale; (3) the
petition for extrajudicial foreclosure was fatally defective since it sought to
foreclose properties of two different entities; (4) the foreclosed properties
were awarded and sold to Imelda A. Angeles for an inadequate bid of only
P4,181,450; and (5) the auction sale involved eight parcels of land covered
by individual titles but the same were sold en masse. On March 7, 2002,
Judge Calderon-Bargas issued TRO preventing Angeles from consolidating
her ownership to the foreclosed properties. On even date, petitioner and
Angeles executed a Compromise Agreement wherein petitioner agreed to
pay Angeles the bid price of the eight parcels of land within 20 days. The
parties then filed a Motion to Approve Compromise Agreement.On April 1,
2002, petitioner filed an Urgent Ex-Parte Motion to Recall Compromise
Agreement since the other property owner and other trustees of petitioner
were not consulted prior to the signing of the agreement. Angeles opposed
the motion.Judge Calderon-Bargas issued an Order stating that Record
shows that the Urgent Ex-Parte Motion to Recall Compromise Agreement
and Motion to Approve Compromise Agreement both failed to comply with
Sec[s]. 4 and 5, Rule 15 of the Civil Procedure. Both proceedings have no
specific date of hearing. The reason why the Motion to Approve Compromise
Agreement up to now has not yet been acted upon was that it has no date of
hearing.Thus, these are considered mere scrap[s] of paper. The TC
approved the Compromise Agreement. Angeles then moved for the issuance
of a writ of execution. The TC required petitioner to comment on the motion
within ten (10) days.TC directed the Clerk of Court to issue a writ of
execution. On the same date, the trial court received petitioner’s Motion for
Extension of Time to File Comment with Entry of Appearance which was
denied on October 10, 2002. Petitioner then moved for reconsideration of the
October 3, 2002 Order.Petitioner came to the Court of Appeals via petition for
certiorari. The CA denied the petition and ruled that petitioner was not
deprived of due process when the trial court issued the October 3, 2002 and
the October 10, 2002 Orders since it was given sufficient time to file its
comment. The appellate court did not rule on the second and third issues
after noting that petitioner’s motion for reconsideration of the October 3, 2002
Order had not yet been resolved by the trial court. It did not resolve the
issues even after the trial court denied petitioner’s motion for reconsideration
on December 12, 2003,11 ratiocinating that the trial court’s denial of
petitioner’s motion for reconsideration did not operate to reinstate the petition
because at the time it was filed, petitioner had no cause of action.Hence ,
this petition.
ISSUES: WON the trial court seriously erred: (1) in issuing the October 3,
2002 and the October 10, 2002 Orders without awaiting petitioner’s
comment; (2) in granting the Motion for Issuance of Writ of Execution
although it lacked the requisite notice of hearing; and (3) in issuing the writ of
execution since it varied the tenor of the decision dated June 28, 2002.
HELD:
On the first issue, we note that in its September 9, 2002 Order, the trial court
gave petitioner ten (10) days to file its comment to Angeles’s Motion for
Issuance of Writ of Execution. While petitioner claims that it received the
Order only on September 21, 2002, Angeles counters that petitioner received
it on September 12, 2002. We are more inclined to believe Angeles’s
allegation since the trial court itself declared in its Order dated October 10,
2002 that the Order dated September 9, 2002 was personally served upon
petitioner on September 12, 2002.13 Thus, petitioner had until September
22, 2002 within which to file its comment or to request for an extension of
time. Consequently, petitioner’s motion for extension and comment were not
seasonably filed and such procedural lapse binds petitioner.
Anent the second issue, a motion which does not meet the requirements of
Sections 4 and 5 of Rule 1514 of the Rules of Court is considered a
worthless piece of paper, which the Clerk of Court has no right to receive and
the trial court has no authority to act upon. Service of a copy of a motion
containing a notice of the time and the place of hearing of that motion is a
mandatory requirement, and the failure of movants to comply with these
requirements renders their motions fatally defective. However, there are
exceptions to the strict application of this rule. These exceptions are: (1)
where a rigid application will result in a manifest failure or miscarriage of
justice especially if a party successfully shows that the alleged defect in the
questioned final and executory judgment is not apparent on its face or from
the recitals contained therein; (2) where the interest of substantial justice will
be served; (3) where the resolution of the motion is addressed solely to the
sound and judicious discretion of the court; and (4) where the injustice to the
adverse party is not commensurate with the degree of his thoughtlessness in
not complying with the procedure prescribed.A notice of hearing is an integral
component of procedural due process to afford the adverse parties a chance execution is not in harmony with the judgment which gives it life and exceeds
to be heard before a motion is resolved by the court. Through such notice, it, it has pro tanto no validity.20
the adverse party is given time to study and answer the arguments in the
motion. Records show that while Angeles’s Motion for Issuance of Writ of
Execution contained a notice of hearing, it did not particularly state the date
WHEREFORE, the instant petition is PARTIALLY GRANTED. The Decision
and time of the hearing. However, scstill find that petitioner was not
dated November 28, 2003 and the Resolution dated May 26, 2004 of the
denied procedural due process. Upon receiving the Motion for Issuance of
Court of Appeals in CA-G.R. SP No. 73965 are MODIFIED such that the writ
Writ of Execution, the trial court issued an Order dated September 9, 2002
of execution issued on October 11, 2002 by Judge Adelina Calderon-Bargas
giving petitioner ten (10) days to file its comment. The trial court ruled on the
is declared NULL and VOID.
motion only after the reglementary period to file comment lapsed. Clearly,
petitioner was given time to study and comment on the motion for which SC ordered that the case be REMANDED to the Regional Trial Court of
reason, the very purpose of a notice of hearing had been Morong, Rizal, Branch 78, which is hereby ORDERED to issue another writ
achieved.Procedural due process is not based solely on a mechanical and of execution against petitioner KKK Foundation, Inc., in conformity with the
literal application that renders any deviation inexorably fatal. Instead, Decision dated June 28, 2002 of the trial court. This is without prejudice to
procedural rules are liberally construed to promote their objective and to filing a new motion for consolidation by respondent Angeles.
assist in obtaining a just, speedy and inexpensive determination of any action
and proceeding.

On the last issue, SC note that the Compromise Agreement approved by the
trial court in its Decision dated June 28, 2002 merely provided that petitioner
would pay Angeles the bid price of P5,500,000, for the eight parcels of land
subject of the auction sale, within twenty (20) days. Upon payment, Angeles
would execute a Certificate of Deed of Redemption and a Deed of
Cancellation of Mortgage, and surrender to petitioner the titles to the eight
parcels of land. Nevertheless, when the trial court issued the writ of
execution, the writ gave Sheriff Bisnar the option "to allow the consolidation
of the subject real properties in favor of the defendant Imelda Angeles."

Undoubtedly, the writ of execution imposed upon petitioner an alternative

obligation which was not included or contemplated in the Compromise
Agreement. While the complaint originally sought to restrain Angeles from
consolidating her ownership to the foreclosed properties, that has been
superseded by the Compromise Agreement. Therefore, the writ of execution
which directed Sheriff Bisnar to "cause the Register of Deeds of Morong,
Rizal, to allow the consolidation of the subject real properties in favor of the
defendant Imelda Angeles" is clearly erroneous because the judgment under
execution failed to provide for consolidation. Because the writ of execution
varied the terms of the judgment and exceeded them, it had no validity. The
writ of execution must conform to the judgment which is to be executed, as it
may not vary the terms of the judgment it seeks to enforce. Neither may it go
beyond the terms of the judgment sought to be executed. Where the
Rule 12 – Motions for Bill of Particulars
1. SANTOS V. LIWAG (G.R. No. L-24238 November 28, 1980)
DOCTRINE: The allowance of a motion for a more definite statement or bill
of particulars rests within the sound judicial discretion of the court and, as
usual in matters of a discretionary nature, the ruling of the trial court in that
regard will not be reversed unless there has been a palpable abuse of
discretion or a clearly erroneous order. EMERGENCY RECIT (Very short
case – please refer to the facts below)
FACTS: • June 8, 1964: Jose Santos filed a complaint against Lorenzo Liwag
with the CFI of Manila, which seeks to annul certain documents which were
alleged to be done with malice, threats, false pretenses, machination,
misrepresentations, and other fraudulent means, with damages and costs.
• July 4, 1964: Santos filed a motion asking the court to order Liwag
(petitioner) to submit bill of particulars on certain allegations of the complaint
believed to be vague and conflicting, and that he be informed of the charges
filed against him to prepare an intelligent and proper pleading necessary and
appropriate in the premises
• Liwag opposed the said motion and said that the allegations in the
complaint filed are sufficient and contains the facts needed for a cause of
action to exist and Santos’ motion is indeed evidentiary in nature Trial Court
defendant properly to prepare a responsive pleading and to clarify issues and
aid the court in an orderly and expeditious disposition in the case.
• RULES ON BILL OF PARTICULARS ON THE GROUND OF VAGUE
COMPLAINT o If an action (like this case) is one for the annulment of
documents that have been allegedly executed by reason of deceit,
machination, false pretenses, misrepresentation, threats, and other
fraudulent means. o Deceit, machination, false pretenses, misrepresentation,
and threats, however, are largely conclusions of law and mere allegations
thereof without a statement of the facts to which such terms have reference
are not sufficient. The allegations must state the facts and circumstances
from which the fraud, deceit, machination, false pretenses,
misrepresentation, and threats may be inferred as conclusions. § In his
complaint, the appellant merely averred that all the documents sought to be
annulled were all executed through the use of deceits, machination, false
pretenses, misrepresentations, threats, and other fraudulent means without
the particular-facts on which alleged fraud, deceit, machination, or
misrepresentations are predicated.
• FAILURE TO COMPLY WITH A COURT ORDER TO FILE OF A BILL OF
PARTICULARS RESULTS IN DISMISSAL OF COMPLAINT o Hence, it was
proper for the trial court to grant the defendant's motion for a bill of
particulars, and when the plaintiff failed to comply with the order, the trial
court correctly dismissed the complaint.

• Granted the motion and directed the plaintiff to submit a bill of particulars
with respect to the paragraphs specified in defendant’s motion

• When plaintiff failed to comply with the order of the court, the complaint was
dismissed with costs against the plaintiff

ISSUE: 1. WON the trial court erred in granting the motion for bill of
particulars filed by Liwag.

HELD/RATIO: 1. NO. • BILL OF PARTICULARS ARE DISCRETIONARY

UPON THE COURTS o The allowance of a motion for a more definite
statement or bill of particulars rests within the sound judicial discretion of the
court and, as usual in matters of a discretionary nature, the ruling of the trial
court in that regard will not be reversed unless there has been a palpable
abuse of discretion or a clearly erroneous order. o Complaint was indeed
drawn and suffers from vagueness and generalization to enable the
2. FAUSTA AGCANAS, JUAN MIGUEL, JUANITA MIGUEL, assisted by
her husband ULPIANO PASION,
assisted by her husband JUAN PASCUAL vs. BRUNO MERCADO and
ANTONIO DASALLA
Facts:
On November 25, 1956 plaintiffs filed this action to recover portions of a
parcel of land in Isabela, and damages. Under date of December 4, 1956
defendants filed a motion for a bill of particulars, with notice of hearing on
December 8, but since the motion was actually received in court only on
December 12 the court set it for hearing on December 22.
On December 17, however, defendants filed a motion to dismiss the
complaint, with a prayer that consideration of their motion for a bill of
particulars be held in abeyance pending resolution of their motion to dismiss.
On December 22, 1956, the date set by the court for the hearing of the
motion for a bill of particulars and by defendants for the hearing of their
motion to dismiss, the court issued an order postponing "consideration" of
both motions to December 29.
On March 7, 1957 the court denied the motion to dismiss and ordered
defendants "to answer the complaint within the reglementary period provided
for by the Rules of Court." Hearing of the case on the merits was set for
October 29, 1957, notice of which was duly received by defendants.
Defendants not having filed their answer, plaintiffs, on October 17, 1957,
moved to have them declared in default. On the same day the court issued
the order of default together with another order commissioning the clerk of
court to receive plaintiff's evidence.
On October 21, 1957 defendants moved to cancel the hearing scheduled for
October 29, on two grounds one of which was that their motion for a bill of
particulars had not yet been resolved. The motion to cancel was set for
hearing on October 26, 1957. When defendants arrived in court on that day
they learned that an order of default had been issued, so they immediately
filed a motion asking that the same be set aside that their pending motion for
a bill of particulars be resolved and that they be given a reasonable period
thereafter within which to file their answer to the complaint.
On December 13, 1957 the court denied the motion and rendered its
decision in favor of plaintiffs and against defendants.
On January 4, 1958 it denied defendants' motion for reconsideration of the
order of denial. On January 24, defendants filed their record on appeal (to
this Court from the order of December 13, 1957), but as they subsequently
filed a petition for relief from the judgment by default, they asked that
consideration and approval of their record on appeal be held in abeyance
until said petition had been resolved. The request was granted. Defendant's
petition for relief, which was filed on January 28, 1958, was denied on March
21, as was also, on September 20, 1958 their motion for reconsideration of
the order of denial.
On October 4, 1958 the court denied likewise their motion for a writ of
preliminary injunction to restrain execution of the judgment by default. Hence,
this appeal.
Issue: Whether or not upon denial of a defendants' motion to dismiss the
reglementary period within which to file an answer resumes running even
though the motion for a bill of particulars of the same defendants is still
pending and unresolved.
Held:
Both a motion to dismiss and a motion for a bill of particulars interrupt the
time to file a responsive pleading. In the case of a motion to dismiss, the
period starts running against as soon as the movant receives a copy of
the order of denial. In the case of a motion for a bill of particulars, the
suspended period shall continue to run upon service on the movant of the bill
of particulars, if the motion is granted, or of the notice of its denial, but in any
event he shall have not less than five days within which to file his responsive
pleading.
When appellants filed a motion to dismiss they requested that resolution of
their previous motion for a bill of particulars be held in abeyance. This was
but practical because if the court had granted the motion to dismiss, there
would have been no need for a bill of particulars. Resolution of the motion for
the purpose was necessary only in the event that court should deny, as it did,
the motion to dismiss, in which case the period to file an answer remained
suspended until the motion for a bill of particulars is denied or, if it is granted,
until the bill is served on the moving party.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts
be admitted and approved by this Honorable Court, without prejudice to the
parties adducing other evidence to prove their case not covered by this
stipulation of facts.

No action having been taken thereon until the present, the period to
answer has not yet expired. The lower court, therefore, erred in
declaring appellants in defaults and in taking all the subsequent
actions it did in the case.

The order of default issued and the decision rendered by the trial court are
set aside and the case is remanded for further proceedings, pursuant to the
Rules.
3. Salita vs Magtolis
Facts:
1. Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman C
atholic Church in Ermita, Manila.
2. They separated in fact in 1988. Subsequently, Erwin sued for annulment o
n the ground of Joselita’s psychological incapacity.
3. The petition for annulment was filed before the Regional Trial Court o
f Quezon City. Therein it is alleged that petitioner came to realize that re
spondent was psychologically incapacitated to comply with the essenti
al marital obligations of their marriage, which incapacity existed at the t
ime of the marriage although the same became manifest only thereafte
r."Edwin specified that at the time of their marriage, respondent (Joseli
ta Salita) was psychologically incapacitated to comply with the essentia
l marital obligations of their marriage in that she was unable to underst
and and accept the demands made by his profession — that of a newly
qualified Doctor of Medicine — upon petitioner’s time and efforts so tha
t she frequently complained of his lack of attention to her even to her m
other, whose intervention caused petitioner to lose his job.
4. Dissatisfied with the allegation in the petition, Joselita moved for a bi
ll of particulars. She argued that the "assertion (in the Bill of Particular
s) is a statement of legal conclusion made by petitioner’s counsel and n
ot an averment of ‘ultimate facts,’ as required by the Rules of Court, fro
m which such a conclusion may properly be inferred . . . ." 4 But finding
the questioned Bill of Particulars adequate, the trial court issued an ord
er upholding its sufficiency and directing Joselita to file her responsive
pleading.
5. She filed a petition for certiorari before the Supreme Court but the SC
referred it to the CA. The CA denied her petition.
stated by private respondent, "[t]he term does not refer to the details of proba
tive matter or particulars of evidence by which these material elements are to
be established." It refers to "the facts which the evidence on the trial will prov
e, and not the evidence which will be required to prove the existence of those
facts." And a motion for bill of particulars will not be granted if the comp
laint, while not very definite, nonetheless already states a sufficient cau
se of action. 11 A motion for bill of particulars may not call for matters
which should form part of the proof of the complaint upon trial. Such in
formation may be obtained by other means. 12
We sustain the view of respondent Court of Appeals that the Bill of Particular
s filed by private respondent is sufficient to state a cause of action, and to req
uire more details from private respondent would be to ask for information on
evidentiary matters. Indeed, petitioner has already been adequately apprised
of private respondent’s cause of action against her thus —
. . . . (she) was psychologically incapacitated to comply with the essential ma
rital obligations of their marriage in that she was unable to understand and ac
cept the demands made by his profession — that of a newly qualified Doctor
of Medicine — upon petitioner’s time and efforts so that she frequently compl
ained of his lack of attention to her even to her mother, whose intervention ca
used petitioner to lose his job.
On the basis of the aforequoted allegations, it is evident that petitioner
can already prepare her responsive pleading or for trial. Private respon
dent has already alleged that "she (petitioner) was unable to understan
d and accept the demands made by his profession . . . upon his time an
d efforts . . . " Certainly, she can respond to this. To demand for more d
etails would indeed be asking for information on evidentiary facts — fac
ts necessary to prove essential or ultimate facts. 13 For sure, the additi
onal facts called for by petitioner regarding her particular acts or omiss
ions would be evidentiary, and to obtain evidentiary matters is not the f
unction of a motion for bill of particulars. 14

Issue: WON the Bill of Particulars submitted by herein respondent is of suffic

ient definiteness or particularity as to enable herein petitioner to properly pre
pare her responsive pleading or for trial.

Held: Yes. A complaint only needs to state the "ultimate facts constituti
ng the plaintiff’s cause or causes of action." 9 Ultimate facts has been d
efined as "those facts which the expected evidence will support." 10 As
 RULE 16 – Motion to Dismiss
1. Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-45107 November 11, 1991
BENEDICTO RAMOS, petitioner,
vs.
HON. ELVIRO L. PERALTA, Presiding Judge, Branch XVII, Court
of First Instance of Manila, SPOUSES JUVENCIO ORTANEZ and
JULIANA S. ORTANEZ, MINDANAO INSURANCE CO., INC. and P.
R. ROMAN, INC., respondents.
Angel Suntay, Jr. and Renato M. Coronado for petitioner.
Tolentino, Garcia, Cruz & Reyes for respondents Ortanez.
Put in issue in this petition for review on certiorari is the propriety of the
dismissal by the then Court of First Instance of (CFI) of Manila, Branch XVII
of petitioner's action for consignation of the sum of P70,000.00 representing
advance rentals for the 101-hectare Salgado fishpond located in Bo. Balut,
Pilar, Bataan.
Petitioner started occupying the Salgado fishpond in 1964 by virtue of a
lease contract executed in his favor by private respondents spouses
Juvencio and Juliana Ortanez. The original lease for a term of five (5) years
from January 1, 1964 to January 1, 1990, was renewed several times, the
last renewal being on June 28, 1974 under a "Kasunduan sa Pag-upa" for a
period of three (3) years starting January 1, 1975 to December 31, 1977.
Unknown to petitioner, title 1 to said property was in the name of Philippine
International Surety Co., Inc., a corporation founded, organized and 99.5%-
owned by the Salgado spouses. Later renamed Mindanao Insurance Co.,
Inc., 2 said corporation was placed under receivership and liquidation on
June 20, 1968 in Civil Case No. Q-10664 of the then CFI of Rizal, Branch IV,
Quezon City, upon application of Insurance Commissioner Gregoria Cruz-
Ansaldo who was appointed receiver.
Thereafter on February 23, 1976, respondent P. R. Roman, Inc. purchased
from Mindanao Insurance the Salgado fishpond for P950,000.00. The deed
of sale was signed by the receiver and duly approved by the liquidation court.
Apparently due to this development, the spouses Ortanez refused to accept
from petitioner the advance rentals on the fishpond due on March 15, 1976 in
the amount of P30,000.00.
On or about May 1, 1976, petitioner received a letter from Don Pablo R.
Roman informing him of the latter's acquisition of the fishpond and intention
to take possession thereof on May 16, 1976. In his letter-reply, petitioner
reminded Mr. Roman of his lease contract over the fishpond and refused to
consent to the intended take over. Notwithstanding petitioner's objection, P.
R. Roman, Inc. took over possession of the fishpond.
On August 2, 1976, petitioner filed before the CFI of Manila the aforesaid
complaint, docketed as Civil Case No. 103647, 3 against private respondents
Juvencio and Juliana Ortanez, Mindanao Insurance and P. R. Roman, Inc.
for consignation of the sum of P70,000.00 representing advance rentals on
the fishpond in the amounts of P30,000.00 and P40,000.00 respectively due
on March 15, 1976 and June 15, 1976, which he had previously tendered to,
but refused by the spouses Ortanez and Pablo Roman.
P. R. Roman, Inc. filed a motion to dismiss on the grounds that venue was
improperly laid, the complaint states no cause of action and the court has no
jurisdiction over the subject of the action or suit. In its motion to dismiss, P. R.
Roman, Inc. cited the pendency before the then CFI of Bataan of Civil Case
No 4102 instituted by P.R. Roman, Inc. against petitioner Benedicto Ramos
on August 13, 1976 to quiet its title over the Salgado fishpond.
On August 27, 1976, respondent CFI of Manila issued an order 4 dismissing
Civil Case No. 103647, stating in part:
Without discussing in detail the grounds mentioned above, the Court really
sees that this case should be dismissed not only insofar as against P. R.
Roman, Inc. but also as against the other defendants mentioned above for
the reason, principally, that there is already a case pending between the
same parties and for the same cause in Civil Case No. 4102 of Branch II of
the Court of First Instance of Bataan, entitled P. R. Roman, Inc. vs.
Benedicto Roman, which is precisely for the ownership of the subject matter
of the property allegedly leased to the plaintiff herein (Exhibit "A"-Motion). In
the said case, the defendant therein, Benedicto Ramos, who is the plaintiff in
the case at bar, filed a motion for leave to file a third-party complaint against
the spouses surnamed Ortanez and the Mindanao Insurance Company Inc.
All the issues respecting the fishpond, including the lease contract, are
necessarily involved in the case pending now in Bataan. Aside from the
above, the Court cannot decide this case because it cannot pre-empt the
Court of Bataan on whether or nor the P. R. Roman, Inc. is already the owner
because if it finds that the said defendant P. R. Roman, Inc. is really the
owner of the fishpond, there is no more lease for which rentals are to be
paid.
Petitioner moved for reconsideration, but was unsuccessful, the court a
quo, standing "pat on its previous order and reiterat(ing) its dismissal of the
case, without costs." 5
Hence this petition anchored on the following ascribed errors of law: 6
1. The respondent court erred in not holding that the only issue in
consignation of funds is whether the defendant is willing to accept the
proffered payment or not.
2. The respondent court erred in not holding that the prerogative of choosing
the proper venue belongs to the plaintiff.
3. The respondent court erred in holding that the subsequent filing of Civil
Case No. 4102 before the Court of First Instance of Bataan is a bar to the
prosecution of Civil Case No. 103647 before it.
Petitioner contends that the Bataan quieting-of-title Civil Case No. 4102
cannot serve as a bar to his Manila consignation Civil Case No. 103647
because they involve different issues. Civil Case No. 4102 deals with the
question of ownership while the only issue involved in his consignation case
is whether or not the defendant is willing to accept the proffered payment. In
fact, petitioner posits, the action to quiet title is a useless futile exercise as he
does not question P. R. Roman Inc.'s ownership of the fishpond under
consideration, but merely wishes to assert his leasehold and possessory
rights over said property under the "Kasunduan sa Pag-upa." He further
contends that compelling him to litigate before the Bataan court would render
nugatory his right as a plaintiff to choose the venue of his action. Besides,
Civil Case No. 103647 was filed on August 2, 1976, ahead of Civil Case No.
4102 which was filed on a much later date, August 13, 1976, after the Manila
CFI had already acquired jurisdiction over Civil Case No. 103647.
Private respondents counter that the view taken by petitioner of the Manila
consignation case is quite limited and bookish, because while it may be true
that theoretically, the main issue involved in a consignation case is whether
or not the defendant is willing to accept the proffered payment, in the
consignation case brought by petitioner, other issues were pleaded by
petitioner himself, such as the validity and binding effect of the lease contract
and the existence of the supposed obligor-obligee relationship. They further
contend that a plaintiffs right of choice of venue is not absolute, but must
invariably how to the dismissal of the case because of litis pendentia which,
in refutation of petitioner's argument, does not require that there is
a prior pending action, merely that there is a pending action.
We find for respondents.
Under the rules and jurisprudence, for litis pendentia to be invoked as a
ground for the dismissal of an action, the concurrence of the following
requisites is necessary: (a) Identity of parties or at least such as represent
the same interest in both actions; (b) Identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (c) The identity in
the two cases should be such that the judgment that may be rendered in one
would, regardless of which party is successful, amount to res judicata in the
other. 7
These requisites are present in the case at bar. It is worthwhile mentioning
that in his basic petition for review, one of the assigned errors of petitioner is
that the respondent court erred in not holding that the parties in Civil Case
No. 4102 are not the same as the parties in Civil Case No.
103647. 8 However, in his brief, no further mention of this assigned error was
made; a clear indication of petitioner's admission of the identity of parties in
Civil Case No. 4102 and Civil Case No. 103647, particularly as he filed a
third party complaint in Civil Case No. 4102 against the spouses Ortanez and
Mindanao Insurance.
Anent the second element, we agree with private respondents' observation
that petitioner's approach to his consignation case is quite constricted. His
contention that the only issue in a consignation case is whether or not the
defendant is willing to accept the proffered payment is true only where there
is no controversy with respect to the obligation sought to be discharged by
such payment. His consignation case, however, is not as simple. While
ostensibly, the immediate relief sought for in his consignation case is to
compel therein defendants to accept his advance rentals, the ultimate
purpose of such action is to compel the new owner of the fishpond to
recognize his leasehold rights and right of occupation. In the last analysis,
therefore, the issue involved in Civil Case No. 103647 is the right of
possession over the fishpond intertwined with the validity and effectivity of
the lease contract.
This is the same issue involved in Civil Case No. 4102. Although an action
for quieting of title refers to ownership, P. R. Roman, Inc. in its
complaint 9 in Civil Case No. 4102 alleged:
5. There is a cloud on the aforesaid titles of plaintiff on the said agricultural
land, marked Annexes "A", "B" and "C" hereof, as well as on its right of
possession over that real property by reason of a certain "Kasunduan sa
Pagupa" (Contract of Lease) dated June 28, 1974 executed by and between
the spouses Jovencio Ortanez and Juliana S. Ortanez purportedly as "may-
ari/Nagpapaupa" (owner/lessor) and the defendant as lessee, which
instrument is apparently valid or effective but in truth and in fact invalid,
ineffective, voidable or unenforceable, and is prejudicial to the said titles of
plaintiff as well as to its right of possession over the same
fishpond/agricultural land in Barrio Balut, Pilar, Bataan.
Thus, while the respondent court in the assailed order of dismissal dated
August 27, 1976 described Civil Case No. 4102 as "precisely for the
ownership of the subject matter of the property allegedly leased to the
plaintiff herein," 10 its order dated October 22, 1976 denying petitioner's
motion for reconsideration, more perceptively stated: 11
In Civil Case No. 4102 of the Court of First Instance of Bataan, entitled P. R.
Roman, Inc. vs. Benedicto Ramos one of the principal issues is the
possession of the fishpond subject matter of the lease supposed rents of
which are supposed to be consignated in the instant case, plaintiff P. R.
Roman, Inc. there, claiming to be entitled to the possession of said property
as owner under a certificate of title and defendant Benedicto Ramos, plaintiff
here, anchoring his claim of possession upon his lease with the Ortanez
spouses against whom, on his motion, he filed a third party complaint in
which he prayed in the alternative, that should he lose possession of the
fishpond in favor of P. R. Roman, Inc., the Ortanezes should be condemned
to reimburse him the rentals he has already paid for the unexpired portion of
the lease. The issue of whether or not the lease subsists even as regards P.
R. Roman, Inc., for it is the view of Ramos that it bought the property with
knowledge of the lease, is squarely planted in the case before the Court of
First Instance of Bataan, and, consequently, the more appropriate court with
which rents are to be consignated. . . .
That whatever decision may be handed down in Civil Case No. 4102 would
constitute res judicata in Civil Case No. 103647 is beyond cavil. Should the
Bataan court rule that the lease contract is valid and effective against P. R.
Roman, Inc., the petitioner can compel it to accept his proffered payment of
rentals; otherwise, he may not do so.
Petitioner next contends that the dismissal of Civil Case No. 103647 deprived
him of his right to choose the venue of his action. Verily, the rules on the
venue of personal actions are laid down generally for the convenience of the
plaintiff and his witnesses. But, as observed by private respondents, this right
given to the plaintiff is not immutable. It must yield to the greater interest of
the orderly administration of justice, which as in this case, may call for the
dismissal of an action on the basis of litis pendentia to obviate the possibility
of conflicting decisions being rendered by two different courts. 12
As private respondents would put it, "(T)he Rules of Court are not perfect. It
does not pretend to be able to make everyone happy simultaneously or
consecutively or all the time. Even the Rules of Court has hierarchy of
values; thus, the choice of venue may bow to dismissal of the case because
of litis pendentia. 13 At any rate, petitioner cannot complain of any
inconvenience arising from the dismissal of Civil Case No. 103647. Being the
defendant in Civil Case No. 4102, he cannot but litigate before the Bataan
court, and bringing his consignation case before the same court would
actually save him time, effort and litigation expenses.
Finally, the rule on litis pendentia does not require that the later case should
yield to the earlier case. What is required merely is that there be another
pending action, not a prior pending action. Considering the broader scope of
inquiry involved in Civil Case No. 4102 and the location of the property
involved, no error was committed by the lower court in deferring to the
Bataan court's jurisdiction.
WHEREFORE, the assailed decision dated August 27, 1976 of the then
Court of First Instance of Manila, Branch XVII, is AFFIRMED in toto. This
decision is immediately executory, with costs against petitioner.
SO ORDERED.
2. Lee Bun Ting and Ang Chia vs. Hon. Jose Aliagen, Rafael
Dinglasan et. al.
Facts: In a previous cases [G. R. No. L-5996, "Rafael Dinglasan, et al. vs.
Lee Bun Ting, et al.] decided by the SC with the same set of private parties, it
was found that private respondents sold to herein petitioner a parcel of land this Court cannot retroactively be applied to nullify a prior final ruling in the
located in Roxas City, Capiz through a conditional sale. Lee, the buyer, on same proceeding where the prior adjudication was had, whether the case
the other hand avers that it was an absolute sale. Both trial court and CA should be civil or criminal in nature. The determination of the questions of
ruled in favor of buyer Lee. The SC found that Lee is normally not allowed to fact and of law by this Court on June 27, 1956 in case No. L-5996 has
purchase the property on the count of the constitutional prohibition (Section become the law of the case, and may not now be disputed or relitigated by a
5. Save in cases of hereditary succession, no private agricultural land shall reopening of the same questions in a subsequent litigation between the
be transferred or assigned except to individuals, corporations, or same parties and their privies the same subject matter.
associations qualified to acquire or hold lands of the public domain in the
Philippines.- Article 13, 1935 Consitution) But since it was also found out that
the buyers (private respondents) are in pari delicto for selling the property in
spite of the constitutional prohibition they are proscribed from assailing the
sale made between them and herein private respondents.

12 years after the above mentioned case was promulgated, the present case
for the recovery of the lot was instituted with the same contention of the
respondents Dinglasan that the sale should be null and void on account of
the constitutional prohibition.

A motion to dismiss was filed by petitioners in this case on the ground of res
judicata. An opposition thereto was filed by plaintiffs, with the averment that
the decision in the prior case "cannot be pleaded in bar of the instant action
because of new or additional facts or grounds of recovery and because of
change of law or jurisprudence.

The Court of Appeals denied the motion to dismiss.

Issue: Whether or not the motion to dismiss should be granted

Held: Affirmative. The decision of this Court in G. R. No. L-5996, "Rafael

Dinglasan, et al. vs. Lee Bun Ting, et al." constitutes a bar to Civil Case No.
V-3064 before the respondent court. Said Civil case, therefore, should have
been dismissed because it is a mere relitigation of the same issues
previously adjudged with finality, way back in 1956, between the same
parties or their privies and concerning the same subject matter. We have
consistently held that the doctrine of res judicata applies where, between a
pending action and one which has been finally and definitely settled, there is
Identity of parties, subject matter and cause of action. 3. PHILIPPINE NATIONAL BANK, plaintiff-appellant,
vs. HERMOGENES HIPOLITO and LEONOR
We find that in the ultimate analysis, Civil Case No. V-3064 is but an attempt
JUNSAY, defendants-appellees.
to reopen the issues which were resolved in the previous case. Contrary to G.R. No. L-16463
the contentions of private respondents, there has been no change in the
facts or in the conditions of the parties. Posterior changes in the doctrine of
FACTS: June 18, 1959 – a complaint was filed alleging that defendant
Hermogenes Hipolito and Leonor Junsay obtained various sugar crop loans
from plaintiff PNB through its Victorias Branch, evidenced by promissory
notes.
The amount of the notes was a total of P9,692.00. Defendants only paid
P3,905.61, leaving a balance of P6,786.39, which, added to accrued interest
of P5,213.34, summed up to P11,999.73 as of January 17, 1957.
Despite repeated demands, defendants failed and refused to pay said
amount. May 7, 1957 - defendants went to Atty. Francis I. Medel of the legal
department of plaintiff's Victorias branch and offered a plan of payment of the
account
For reasons unknown to plaintiff and probably due to the transfer of
defendant Hipolito as supervising teacher to some other province, his
proposed plan of payment did not materialize. Said offer of plan of payment
was an acknowledgment of defendants' just and valid obligation. The prayer
is for the court to order defendants to pay to plaintiff the said amount of
P11,999.73, with accrued annual interest thereon ( rate of 5% from January
17, 1957 up to the date of payment, plus attorney's fees equivalent to 10%.)
Defendants moved for a bill of particulars – denied. Defendants moved to
dismiss on the ground that plaintiff's cause of action already prescribed.
attached to the motion: a joint affidavit and defendants averred that they
never made any acknowledgment of indebtedness nor offered a plan of
payment, but on the contrary had always maintained that plaintiff's action had
prescribed.
Plaintiff’s opposition - contending that the prescriptive period had been
suspended by "EO No. 32, known as the Moratorium Law," and interrupted,
pursuant to Article 1973 of the old Civil Code, by plaintiff’s written extra-
judicial demands as well as by defendants’ acknowledgment of the
indebtedness.
Defendants reply to plaintiff's opposition - citing Bachrach Motors Co.,
Inc. v. Chua Tia Hian, stated that EO. No. 32, if at all, suspended the
prescriptive period "only for 2yrs, 4 months and 16 days, from March 10,
1945, or only up to July 26, 1948," - that the alleged written extrajudicial
demands constitute self-serving evidence; and that defendant Hipolito’s letter
of February 16, 1959 cannot be considered as an acknowledgment of
indebtedness.
Lower court – dismissed the complaint: ruled that the 7 promissory notes
constituted 1 single obligation, that the last promissory note dated June 23,
1941, should be considered as the true date of the written contract, from
which the 10-year prescriptive period and such period has been suspended
for 2 years, 4 months and sixteen 16 days (by reason of EO No. 32) until said
Order was declared unconstitutional.
ISSUE: Whether or not the defendant’s denial of the allegations constitute
as grounds for the dismissal of the complaint
RULING: NO. The dismissal is erroneous. In a motion to dismiss defendant
hypothetically admits the truth of the allegations of fact contained in the
complaint.
An examination of the complaint herein does not indicate clearly that
prescription has set in. On the contrary, it is belied by the allegation
concerning defendant’s offer of payment made on May 7, 1957. Such offer
hypothetically admitted in the motion, worked as a renewal of the obligation.
An offer of payment works as a renewal of the obligation and prevents
prescription from setting in.
It is true that defendants attached to the motion a joint affidavit of merit
wherein they deny having made an offer of a plan of payment. The denial,
being a contrary averment of fact, would be proper in the answer to the
complaint but not in a motion for dismissal, for the contradictory allegations
would require presentation of evidence. Denial of allegations in a complaint
is not proper in a motion to dismiss.
** A denial of an allegation of a complaint, as for example the denial of an
offer of payment which would prevent prescription from setting in, would be
proper in the answer to the complaint but not in a motion for dismissal, for
the contradictory allegations would require presentation of evidence
The same is true of the other allegations in the complaint concerning, the
demands for payment sent by plaintiff upon defendants and the partial
payments made by them, all or some of which may have a material bearing
on the question of prescription. In other words, the ground for dismissal not
being indubitable, the lower court should have deferred determination of
the issue until after trial of the case on the merits.
The order appealed from is set aside and the case is remanded to the lower
court for further proceedings.
4. #11.G.R. No. 109068 January 10, 1994
GAUDENCIO GUERRERO, petitioner,
vs.
REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE
LUIS B. BELLO, JR., PRESIDING, and PEDRO G.
HERNANDO, respondents.

FACTS:
Pedro G. Hernando apparently overlooked this alleged defect since
he did not file any motion to dismiss nor attack the complaint on this
ground in his answer.
@ PRE-TRIAL: Judge Luis B. Bello, Jr.: NOTED THAT: GUERRERO
and HERNANDO were related as brothers-in-law then JUDGE gave
petitioner five (5) days "to file his motion and amended complaint" to
allege that the parties were very close relatives, their respective
wives being sisters, and that the complaint to be maintained should
allege that earnest efforts towards a compromise were exerted but
failed and considered this deficiency a JURISDICTIONAL DEFECT.
MR was filed by GUERRERO: brothers by affinity are not members
of the same family, he was not required to exert efforts towards a
compromise – DENIED: "[f]ailure to allege that earnest efforts
towards a compromise is jurisdictional such that for failure to allege
same the court would be deprived of its jurisdiction to take
cognizance of the case."
Case was dismissed without prejudice: No amended complaint filed
ISSUE: ON APPEAL: GUERRERO:
whether brothers by affinity are considered members of the same
family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil
Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court
requiring earnest efforts towards a compromise before a suit
between them may be instituted and maintained;
whether the absence of an allegation in the complaint that earnest
efforts towards a compromise were exerted, which efforts failed, is a
ground for dismissal for lack of jurisdiction.
HELD:
The Constitution protects the sanctity of the family and endeavors to
strengthen it as a basic autonomous social institution. This is also
embodied in Art. 149, and given flesh in Art. 151, of the Family Code,
which provides:
Considering that Art. 151 starts with the negative word "No", the
requirement is mandatory 4 that the complaint or petition, which must
be verified, should allege that earnest efforts towards a compromise
have been made but that the same failed, so that "[i]f it is shown that
no such efforts were in fact made, the case must be dismissed."
BUT the instant case presents no occasion for the application of
the above-quoted provisions. As early as two decades ago, we
already ruled in Gayon v. Gayon 6 that the enumeration of "brothers
and sisters" as members of the same family does not comprehend
"sisters-in-law".
The requirement that the complaint or petition should allege that
earnest efforts toward a compromise have been made but that the
same failed is mandatory
The enumeration of “brothers and sisters” as members of the same
family does not comprehend “sister-in-law”/ “brothers-in-law” are not
listed in Art 217 of the NCC as members of the same family and
since Art 150 repeats the same “members of the family” court finds
no reason to alter the existing jurisprudence
2nd ISSUE: The attempt to compromise as well as the inability to
succeed is a condition precedent to the filing of a suit between
members of the same family, absent such allegation in the complaint
being assailable at any stage of the proceeding, even on appeal, for
lack of cause of action.
5. CONTINENTAL CEMENT CORPORATION, petitioner,
vs.
COURT OF APPEALS and MUNICIPALITY OF
NORZAGARAY, respondents.
FACTS:
On February 1, 1985, the Municipality of Norzagaray filed a
complaint for recovery of taxes against the petitioner in the Regional
Trial Court of Malolos, Bulacan.
Before the expiration of the 15-day reglementary period to answer,
the petitioner filed two successive motions for extension of time to
file responsive pleadings, which were both granted. The last day of
the second extension was May 28, 1985.
On May 25, 1985, the petitioner filed a motion to dismiss the
complaint on the ground of the plaintiffs lack of capacity to sue and
lack of a cause of action. The motion was denied "both for lack of
merit and for having been improperly filed."
On July 25, 1985, the plaintiff moved to declare the petitioner in
default for having filed only the motion to dismiss and not a
responsive pleading during the extension granted. This declaration
was made on August 2, 1985, and evidence for the plaintiff was
thereafter received ex parte resulting in a judgment in its favor on
February 4, 1986. The judgment was affirmed by the respondent
court in its decision dated April 7, 1989, which is the subject of the
present petition.
1. The trial court may in its discretion and on proper motion extend
the 15-day reglementary period for the filing of responsive pleadings.
2. During the original reglementary 15-day period, or any extension
of such period, the defendant may file a motion to dismiss the
complaint.
3. If the motion to dismiss is denied, the defendant is allowed
another fifteen days from notice of the denial to file the responsive
pleading. The full 15-day reglementary period starts all over again.

ISSUE: WON the Motion to Dismiss was seasonably filed.

Ruling:
There is no question that the motion to dismiss was filed seasonably,
within the period of the second extension granted by the trial court. It
is true that such a motion could not be considered a responsive
pleading as SC have held in many cases. Nevertheless, it is also
true that in Section 1 of Rule 16 of the Rules of Court, it is provided
that "within the time for pleading,a motion to dismiss the action may 6. Borje vs. CFI of Misamis Occidental Br. II
be made" on the grounds therein enumerated, including the grounds
Facts:
invoked by the petitioner.
Borje is the counsel of the water consuming public of Ozamis City, he
Moreover, it is clearly provided in Section 4 of the same Rule that:
Sec. 4. Time to plead. — If the motion to dismiss is denied or if allegedly received a blank water bill, with no indication of the meter
determination thereof is deferred, the movant shall file his answer readings, no. of cubic meters consumed and the amount to be paid,
within the period prescribed by Rule 11, computed from the time he hence he refused to pay said bill which lead to the disconnection of
received notice of denial or deferment, unless the court provides a his services;
He brought an action for damages w/ preliminary injunction against
different period.
The motion to dismiss was filed on May 25, 1985, three days before MOWD in the respondent Court;
The Court then issued an order enjoining MOWD to disconnect the
the expiration of the second extension. Notice of its denial was
water service and subsequently to reconnect the service;
served on the petitioner on July 29, 1985. From that date, the
MOWD then filed a motion to dismiss based on 2 grounds: 1) lack of
petitioner had 15 days within which to file its answer, or until August
jurisdiction of respondent Court and 2) another action pending
13, 1985. It was unable to do so, however, because of the default
between the same parties for the same causes;
order issued by the trial court on August 2, 1985. On that date, the Respond Court dismissed the case but not based on the grounds
petitioner still had eleven days before the expiration of the 15-day above mentioned but because there was no malice or bad faith in the
reglementary period during which the petitioner was supposed to file severance of the water connection of petitioner and that MOWD had
his answer. already reconnected the same.
The Court recapitulates the rules as to the filing of a Motion to
dismiss by the defendant as follows:
Issue: WON, respondent court gravely abused its discretion in
dismissing the case based on the ground which is not alleged in the
motion to dismiss of MOWD

Held: YES.
The dismissal of an actions on grounds not alleged in the motion to
dismiss is improper for in so doing, a court in effect dismiss an action
motu propio w/out giving Borje a chance to argue ithe point w/out
receiving any arguments or evidence in question.
Under Sec. 1 of Rule 8, it enumerates the grounds upon which an
action may be dismissed and it specifically ordains that a motion to
this end be filed. The only instance in which the court may dismiss
upon a court’s own motion on action is, when the “plaintiff fails to
appear at the time of the trial or to prosecute his action for an
unreasonable length of time or to comply w/ the Rules or any order
of the Court.
The dismissal of an action upon a motion to dismiss constitutes a
denial of due process, if from a consideration of the pleading it
appears that there are issues of fact which cannot be decided w/out
the trial of the case on the merits.
xxx Summary or outright dismissals of actions are not proper where
there are factual matters in dispute which need presentation and
appreciation of evidence. … Short cuts in judicial processes are to
be avoided when they impede rather than promote a judicious
dispensation of justice xxx
7. DANFOSS, INC., Petitioners, vs. CONTINENTAL CEMENT
CORPORATION, Respondent.
G.R. No. 143788 September 9, 2005
FACTS:
Mechatronics Instruments and Controls, Inc. (MINCI) is an agent of
Danfoss, Inc.’s products here in the Philippines. On September 1997,
CCC ordered two unit 132 KW Danfoss Brand Frequency
Converter/Inverter from MINCI to be used in the Finish Mill of its
Cement Plant in Bulacan. In the terms of conditions of the original
purchase order, the two unit Frequency Converter shall be delivered
by Danfoss within 8 to 10 weeks from the opening of the letter of
credit. The letter of credit opened by CCC in favour of Danfoss on
September 9, 1997.
On September 17, 1997, MINCI informed CCC that its order are
already ready for shipment and MINCI requested to amend the letter
of credit changing the port of origin/loading from Singapore to
Denmark (Singapore is the Asian Regional Office of Danfoss, the
Head Office of the company is Denmark). CCC complied and the
port of origin in the letter of credit was changed.
On November 6, 1997, MINCI relayed to CCC that Danfoss Inc. was
still checking the status of their order. CCC replied that every delay in
the delivery of the order will cause loss to their company, so CCC
requested for early work out and immediate shipment to avoid further
loss.
But, on November 9, 1997, Danfoss Inc. informed MINCI through
fax, that the reason for the delivery problems was that some of the
supplied components for the new VLT 5000 series (this may be a
part of the converter which is the subject thing in this case or a
machine to create the converter) did not meet the agreed quality
standard. So, Danfoss was canvassing for another supplier for the
said VLT 5000 series. In the fax, there was no clear message as to
when normal production will resume.
Upon receiving the relayed information, CCC surmised that Danfoss
would not be able to deliver their order. There was also no definite
commitment of the delivery from Danfoss and MINCI, so CCC
informed MINCI that they intend to cancel its order. The order was
cancelled on November 13, 1997.
Hence the complaint for damages filed by CCC with the RTC of
Quezon City against Danfoss and MINCI on November 5, 1998. In
reply, Danfoss filed a motion to dismiss the complaint.
CCC’s contention : Due to the “impending” delay in the delivery of its
order, it suffered more than P8 million and was compelled to look for
another supplier.
Danfoss’s contention: The case should be dismissed on the ground
that it did not state a cause of action.
1) The letter of credit was opened on September 9, 1997, so,
since the agreed delivery period is 8 to 10 weeks from the opening of
the letter of credit, the due date is until November 19, 1997.
2) Although Danfoss was having a problem with its supplier prior
to CCC’s cancellation of its order, CCC only surmised that Danfoss
could not deliver within the due date agreed upon.
3) Neither Danfoss nor CCC agreed to change the date of delivery.
Only the port of origin was changed in the letter of credit. Danfoss
has until November 19, 1997 to deliver the order, CCC cancelled the
order on November 13, 1997.
4) CCC never made an extrajudicial demand for the delivery of its
order on its due date as it cancelled the order before the due date.
5) Damages sought for by CCC could not have accrued yet since
the order was cancelled before the delivery was actually delayed.
RTC ruled in favor of CCC. According to the RTC: “...the issue of
whether or not the defendants incur delay in the delivery of the
equipment in question within the period stipulated is a debatable
question which necessitates actual trial on the merits where the
parties have to adduce evidence in support of their respective
stance.
CA: Affirmed the decision of the RTC and denied the Motion for
Reconsideration of Danfoss.
ISSUE: WON there was a cause of action in the complaint filed by
CCC against Danfoss
HELD: No, there was no cause of action in the complaint for
damages filed by CCC.
SC ruled that “In order to sustain a dismissal on the ground of lack of
cause of action, the insufficiency must appear on the face of the
complaint. And the test of the sufficiency of the facts alleged in the
complaint to constitute a cause of action is whether or not, admitting
the facts alleged, the court can render a valid judgment thereon in
accordance with the prayer of the complaint. For this purpose, the
motion to dismiss must hypothetically admit the truth of the facts
alleged in the complaint.”
After a careful perusal of the allegations in respondent’s complaint
for damages against petitioner, we rule that the same failed to state a
cause of action. When respondent sued petitioner for damages,
petitioner had not violated any right of respondent from which a
cause of action had arisen. Respondent only surmised that petitioner
would not be able to deliver the two units frequency
converter/inverter on the date agreed upon by them. Based on this
apprehension, it cancelled its order six days prior to the agreed date
of delivery. How could respondent hold petitioner liable for damages
(1) when petitioner had not yet breached its obligation to deliver the
goods and (2) after respondent made it impossible for petitioner to
deliver them by cancelling its order even before the agreed delivery
date?
The trial court erred in ruling that the issue of whether or not the
defendants incurred delay in the delivery of the equipment within the
period stipulated was a debatable question. It said that trial on the
merits was necessary and the parties had to adduce evidence in
support of their respective positions.8 But what was there to argue
about when, based on the allegations of the complaint, petitioner
was not yet due to deliver the two units frequency converter/inverter
when respondent cancelled its order? It still had six days within
which to comply with its obligation. The court a quo should not have
denied petitioner’s motion to dismiss the complaint (for its failure to
state a cause of action) when, on its face, it was clear that petitioner
had not yet reneged on its obligation to deliver the frequency
converter/inverter on the date mutually agreed upon by the parties.
Moreover, the obligation itself was negated by no less than
respondent’s own act of cancelling its order even before the
prestation became due and demandable. Where therefore was the
breach? Where was the damage caused by petitioner? There was
none.
Consequently, it was wrong for the CA to affirm the order of the trial
court denying petitioner’s motion to dismiss the complaint for its
failure to state a cause of action.
8. Lu vs. Nabua
Facts:
The petition stemmed from an amended complaint filed by the "PR"
against "P", for accounting w/ TRO and Injunction;
"P" filed an Omnibus MD the Amended Complaint based on the ff.
grounds:
Plaintiff's claims are barred by a prior judgement or by statute of
limitations (R16 S1f)
Plaintiffs have no legal capacity to sue and/or do not have a cause of
action(R16 S1g)
Fraud and Equity
Docket Fees are not paid
"PR" filed their opposition of the Omnibus MD Amended Complaint
alleging the ff.:
Plaintiffs not barred by prior judgment nor by statute of limitations
Plaintiffs have the legal capacity to sue and have a valid cause of
action
DF have been paid
After the filing of "P" reply to the Opposition to MD Amended
Complaint, the same was submitted for resolution;
In resolving the OMD, lower court denied the OMD thenafter "P" filed
an MR regarding the dismissal of the OMD however it was also
denied. Hence appeal.
Issues:
1. WoN the CA erred in dismissing the petition for certiorari in holding
that the trial court did not commit grave abuse of discretion in
denying "P" MD
2. WoN the trial court’s denial of petitioner’s motion to dismiss on the
ground that “[T]here are justiciable questions raised in the pleadings
of the herein parties which are proper subject of a full blown trial”
contravenes Sec. 3, Rule 16 of the Rules and constitutes grave
abuse of discretion on the part of the trial court.
Held:
1. 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. As such, the general rule 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. Neither can a denial of a motion to dismiss be the
subject of an appeal unless and until a final judgment or order is
rendered. In order to justify the grant of the extraordinary remedy of
certiorari, the denial of the motion to dismiss must have been tainted
with grave abuse of discretion amounting to lack or excess of
jurisdiction.
2. Under R16 S3, provides that Under this provision, there are three
(3) courses of action which the trial court may take in resolving a
motion to dismiss, i.e., to grant, to deny, or to allow amendment
of the pleading. Deferment of the resolution of a motion to dismiss if
the ground relied upon is not indubitable is now disallowed in view of
the provision requiring presentation of all available arguments and
evidence. Thus, there is no longer any need to defer action until the
trial as the evidence presented, and such additional evidence as the
trial court may require, would already enable the trial court to rule
upon the dubitability of the ground alleged.
Further, it is now specifically required that the resolution on the
motion shall clearly and distinctly state the reasons therefor. This
proscribes the common practice of perfunctorily dismissing the
motion for “lack of merit.” Such cavalier dispositions can often pose
difficulty and misunderstanding on the part of the aggrieved party in
taking recourse therefrom and likewise on the higher court called
upon to resolve the same, usually on certiorari.
The questioned order of the trial court denying the motion to dismiss
with a mere statement that there are justiciable questions which
require a full blown trial falls short of the requirement of Rule 16 set
forth above. Owing to the terseness of its expressed justification, the
challenged order ironically suffers from undefined breadth which is a
hallmark of imprecision. With its unspecific and amorphous thrust,
the issuance is inappropriate to the grounds detailed in the motion to
dismiss.
While the requirement to state clearly and distinctly the reasons for
the trial court’s resolutory order under Sec. 3,Rule 16 of the Rules
does call for a liberal interpretation, especially since jurisprudence
dictates that it is decisions on cases submitted for decision that are
subject to the stringent requirement of specificity of rulings under
Sec. 1, Rule 3624 of the Rules, the trial court’s order in this case
leaves too much to the imagination.
Rule 17 – Dismissal of Actions
1. GO v CRUZ
FACTS:
On October 26, 1981, California Manufacturing Co., Inc. brought an action in
the CFI of Manila against Dante Go, accusing him of unfair
competition. California alleged that Dante Go is doing business under the
name and style of "Sugarland International Products," and engaged like
California in the manufacture of spaghetti, macaroni, and other pasta was
selling his products in the open market under the brand name, "Great Italian,"
in packages which were in colorable and deceitful limitation of California's
containers bearing its own brand, "Royal." Its complaint contained an
application for preliminary injunction commanding Dante Go to immediately
cease and desist from the further manufacture, sale and distribution of said
products, and to retrieve those already being offered for sale.
About two weeks later, however, or on November 12, 1981, California filed a
notice of dismissal.
Four days afterwards, or on November 16, 1981, California received by
registered mail a copy of Dante Go's answer with counterclaim dated
November 6, 1981, which had been filed with the Court on November 9,
1981.
On November 19, 1981 a fire broke out at the Manila City Hall destroying
among others the sala of Judge Tengco and the records of cases therein
kept, including that filed by California against Dante Go.
On December 1, 1981, California filed another complaint asserting the same
cause of action against Dante Go, this time with the CFI at Caloocan
City. This second suit was docketed as Civil Case No. C-9702 and was
assigned to the branch presided over by Judge Fernando A. Cruz.
On December 3, 1981, Judge Cruz issued an ex parte restraining order
against Go.
On the day following the rendition of the restraining order, Dante Go filed the
present petition for certiorari, etc. with this Court praying for its nullification
and perpetual inhibition. On December 11, 1981, this Court, in turn issued a
writ of preliminary injunction restraining California, Judge Cruz and the City
Sheriff from enforcing or implementing the restraining order of December 3,
1981, and from continuing with the hearing on the application for preliminary
injunction in said Civil Case No. C-9702. The scope of the injunction was
subsequently enlarged by this Court's Resolution of April 14,1982 to include
the City Fiscal of Manila, who was thereby restrained from proceeding with
the case of unfair competition filed in his office by California against Dante
Go.
ISSUE: WON Sec. 1, Rule 17 of the Rules of Court applies in the present
case.
HELD: No.What marks the loss by a plaintiff of the right to cause dismissal of
the action by mere notice is not the filing of the defendant's answer with the
Court (either personally or by mail) but the service on the plaintiff of said
answer or of a motion for summary judgment. This is the plain and explicit
message of the Rules. "The filing of pleadings, appearances, motions,
notices, orders and other papers with the court, "according to Section 1, Rule
13 of the Rules of Court, means the delivery thereof to the clerk of the court
either personally or by registered mail. Service, on the other hand, signifies
delivery of the pleading or other paper to the parties affected thereby through
their counsel of record, unless delivery to the party himself is ordered by the
court, by any of the modes set forth in the Rules, i.e., by personal
service, service by mail, or substituted service.
Here, California filed its notice of dismissal of its action in the Manila
Court after the filing of Dante Go's answer butbefore service thereof. Thus
having acted well within the letter and contemplation of the afore-quoted
Section 1 of Rule 17 of the Rules of Court, its notice ipso facto brought about
the dismissal of the action then pending in the Manila Court, without need of
any order or other action by the Presiding Judge. The dismissal was effected
without regard to whatever reasons or motives California might have had for
bringing it about, and was, as the same Section 1, Rule 17 points out,
"without prejudice," the contrary not being otherwise "stated in the notice"
and it being the first time the action was being so dismissed.
There was therefore no legal obstacle to the institution of the second action
in the Caloocan Court of First Instance based on the same claim. The filing
of the complaint invested it with jurisdiction of the subject matter or nature of
the action. In truth, and contrary to what petitioner Dante Go obviously
believes, even if the first action were still pending in the Manila Court, this
circumstance would not affect the jurisdiction of the Caloocan Court over the
second suit. The pendency of the first action would merely give the
defendant the right to move to dismiss the second action on the ground
of auter action pendant or litis pendentia.

Dante Go vs. Hon. Cruz, City Sheriff and California Manufacturing

(1989)

[Facts]

California Manufacturing filed a case against Dante Go for unfair competition

alleging that the latter’s pasta products (Great Italian) such as spaghetti and
macaroni are packed with confusing similarity and colourable imitation with
the former’s Royal Pasta products.

2 weeks later, California filed a Notice of Dismissal without prejudice

4 days after it received Go’s answer with counterclaim

Fire broke out at the Manila City Hall and burned the records therein
including the case filed by California

California filed another complaint based on the same cause of action against
Go in the CFI Caloocan.

Caloocan judge issued a restraining order directing Go to cease and desist

from manufacturing and selling his products.

Go claims that the case in Manila is still pending and that the dismissal
sought by California is no longer a matter of right. He further accused
California of forum shopping at Caloocan judge’s sala.

[issue] Whether or not the dismissal of California is in accordance with the

Rules of Court thus allowing it to file a subsequent case

[ruling] Yes, it is in accord with RC. Section 1 Rule 17 mandates that notice
of dismissal must be filed any time before service of answer.

-California filed its notice of dismissal in CFI manila after Go’s filing of answer
but before service thereof. Thus, its notice ipso facto brought about the
dismissal of the action pending in Manila court, without need of any order or
action by the presiding judge therein.

-No legal obstacle to the institution of the second action in the Caloocan CFI
based on the same claim.
2. G.R. No. L-35989 October 28, 1977
JALOVER vs. YTORIAGA
FACTS: This involves a land dispute filed by Ytoriaga and Lopez against
Hedriana and Jalover in the CFI of Iloilo. They claim that they the owners of
the lot, covered by TCT by virtue of the effects of the current of the river
based on the principle of continuous possession and alluvion. They alleged
that Jalover , without their consent had the portion of the land surveyed and
even placed concrete monuments thereof and even took possession of the
land. Jalover , alleged, inter alia, that he is the owner of the land as sole heir
of his mother, who owned the land pursuant to Article 461 of the Civil Code of
the Philippines. Ytoriaga and Lopez offered documentary evidence and upon
admission thereof, rested their case. Jalover prayed the court to dismiss the
complaint with costs against Ytoriaga and Lopez Issues having been joined,
the case was set for trial. Trial was postponed many times stretching to a
period of more than 6 years, until January 26, 1970, when the case was
called for trial, and then Presiding Judge Ramon Blanco dismissed the case,
for failure of private respondents to appear in court, since the Plaintiff did not
take the necessary steps to engage the service of another lawyer in lieu of
Atty. Atol, who since several years ago has been appointed Chief of the
Secret Service of the Iloilo City Police Department. Two years later, private
respondents' lawyer, Atty. Amado B. Atol, filed a motion for reconsideration
alleging that the said respondents did not fail to prosecute because, during
the times that the case was set for hearing, at least one of said respondents
was always present, and the record would show that the transfers of hearing
were all made at the instance of petitioner or his counsel; and, moreover,
private respondents had already finished presenting their evidence.
respondent Judge Venicio Escolin, who succeeded Judge Blanco in Branch
V, issued an order denying the motion for reconsideration on the ground that
the order of dismissal had become final long ago and was beyond the court's
power to amend or change. Private respondents then filed a Petition for
Relief from Judgment dated July 10, 1972, claiming that the order of
dismissal dated January 26, 1970 was void because of lack of due process
and for having been obtained thru fraud, for the petitioner had
misrepresented to the court the status of the case by making Judge Blanco -
who was not the Presiding Judge when private respondents presented their
evidence and rested their case in 1963 - believe that trial had not even
begun. Petitioner opposed the petition for relief contending that private
respondents were served a copy of the order of dismissal on February 5,
1970, and, therefore, pursuant to Section 3, Rule 38 of the Revised Rules of
Court, the petition for relief should have been filed within 60 days from
February 5, 1970, and within 6 months from January 26, 1970, when the
order was issued; hence, the filing of the petition was beyond the
reglementary period.The petition for relief was given due course,setting aside
the orders dated January 26, 1970 and June 23, 1972, and setting the
continuation of the trial for September 15, 1972. Hence, the present recourse
by petitioner.
ISSUE: WON the prior case was validly dismissed for failure to prosecute
HELD: NO
It will be noted that, as found by respondent Judge, private respondents, as
plaintiffs, adduced their evidence and rested their case on September 4,
1963, or more than six years before the dismissal of the case on January 26,
1970. It was, therefore, the turn of petitioner, as defendant, to present his
evidence. In the premises, private respondents court not possibly have failed
to prosecute they were already past the stage where they could still be
charged with such failure. As correctly held by respondent Judge, private
respondents' absence at the hearing scheduled on January 6, 1970 "can only
be construed as a waiver on their part to cross-examine the witnesses that
defendants might present at the continuation of trial and to object to the
admissibility of the latter's evidence." The right to cross-examine petitioner's
witnesses and/or object to his evidence is a right that belongs to private
respondents which they can certainly waive. Such waiver could be nothing
more than the "intentional relinquishment of a known right," and. as such,
should not have been taken against private respondents.
To dismiss the case after private respondents had submitted their evidence
and rested their case, would not only be to hold said respondents
accountable for waiving a right, but also to deny them one of the cardinal
primary rights of a litigant, which is, corollary to the right to adduce evidence,
the right to have the said evidence considered by the court. The dismissal of
the case for failure to prosecute, when in truth private respondents had
already presented their evidence and rested their case, and, therefore, had
duly ,prosecuted their case, would in effect mean a total disregard by the
court of evidence presented by a party in the regular course of trial and now
forming part of the record. The ends of justice would be better served if, in its
deliberative function. the court would consider the said evidence together
with the evidence to be adduced by petitioner.However,relief from judgment
under Rule 38 of the Revised Rules of Court is not the appropriate remedy. A
petition for relief is available only if the judgment or order complained of has
already become final and executory; but here, as earlier noted, the order of
January 26, 1970 never attained finality for the reason that notice thereof
was not served upon private respondents' counsel of record. The petition for
relief may nevertheless be considered as a second motion for
reconsideration or a motion for new trial based on fraud and lack of
procedural due process.
Fermin Jalover vs Porferio Ytoriaga, Consolacion Lopez (1977)
[facts]
Their absence during the time the case was re-called for trial was a mere
waiver of their right to cross-examine the witnesses.
The dismissal of the case for failure to prosecute when in truth they have
already presented their evidence and rested their case would, in effect, mean
a total disregard of the court of the evidence presented by them in the regular
course of trial.
Further, said dismissal never attained finality as the notice thereof was not
served upon their counsel of record.

This involves a land dispute filed by Ytoriaga and Lopez vs. Jalover in CFI
Iloilo.

Ytoriaga and Lopez claims that a land which was once under water
automatically belongs to them based on the principle of continuous
possession and alluvion. They alleged that Jalover, without their consent,
had that portion of land surveyed and even placed concrete monuments
thereon and took possession thereof.

Jalover, in his answer, alleged that his mother and Hedriana are co-owners of
said land; that he, as heir, is entitled to that portion.

Ytoriaga and Lopez offered documentary evidence and upon admission

thereof, rested their case.

Continuation of trial was ordered transferred until further assignment, thus,

causing the postponement of said case for a period of more than 6 years.

When the case was re-called for trial, Ytoriaga and Lopez failed to appear.
Judge Blanco dismissed the case for their failure to prosecute.

2 years after, Ytoriaga’s counsel filed an MR but denied. Counsel filed a

petition for relief of judgement. It was given due course.

[issue] Whether or not the prior case is validly dismissed for failure to
prosecute.

[ruling] No. Private respondents (Y and L) could not have possibly failed to
prosecute as they were already past the stage of presenting their evidence.
Ligaya, Jaime, Silvina, Fausta, Pablo all surnamed Mina vs. Antonia
Pacson, Crispino Medina and Cresencia Mina (1963)

[facts]

Case 1: The Minas are claiming to be the illegitimate children of Joaquin

Mina while married to Pacson. They are claiming that the DOS allegedly
signed by Joaquin when he was ill was fraudulently obtained. They pray for
the annulment of the DOS and their recognition as illegitimate children.

Court in Case 1 ordered that Pacson be impleaded. The Minas failed to

comply with said order, thus, it was dismissed.

Case 2: The Minas filed another case, this time impleading Pacson but with
the same cause of action and including Medina and Cresencia.

Defendants filed a MTD on the ground of res judicata.

[issue] Whether or not CC 3015 (case 1) effectively bars the present case

[ruling] Partially. Failure to comply with a court order has the effect of
adjudication upon the merits (Sec 3 Rule 17). Thus, failure to comply with the
court order in CC 3015 justifies the dismissal on the issue of annulment of
DOS.

However, present case is not deemed dismissed as to the issue of filiation

and Pacson, as she is not impleaded in the prior case.
CASEÑAS vs. ROSALES
FACTS: Arañas and Caseñas filed with the CFI of Agusan, a complaint for
specific performance and enforcement of their alleged right under a certain
deed of sale, and damages against the spousesRosales. They alleged that
sometime in 1939, Agustin O. Caseñas acquired from Rodolfo Arañas under
a deed of assignment, the latter's rights and interest over a parcel of land ,
that Rodolfo Arañas in turn, acquired the said property from the spouses
Jose A. Rosales and Concepcion Sanchez under a deed of sale ,under the
terms of which, however, the actual transfer of the aforesaid land unto the
vendee would be made only on or before February 18, 1941; and that
despite the above documented transactions, and despite the arrival of the
stipulated period for the execution of the final deed of transfer, the vendors
spouses refused to fulfill their obligation to effect such transfer of the said lot
to the vendee, Rodolfo Arañas or his assignee, the herein appellant, Agustin
O. Caseñas. After the defendants-spouses had filed their answer to the
above complaint, but before trial, the counsel for the plaintiffs gave notice to
the trial court that plaintiff Rodolfo Arañas and defendant Jose A. Rosales
had both died. In view of the said manifestation, the lower court,directed, the
surviving plaintiff, Agustin O. Caseñas, to amend the complaint to effect the
necessary substitution of parties thereon. The said surviving plaintiff,
however, failed altogether to comply with the aforementioned order. LC
dismissed the case for failure on the part of the counsel for the plaintiffs to
comply with the order of this Court which shows abandonment and lack of
interest on the part of the plaintiffs. Casenas, filed with the same CFI of
Agusan, another complaint against the widow and heirs of the late Jose A.
Rosales "to quiet, and for reconveyance of, title to real property, with
damages. This suit referred itself to the very same property litigated under
Civil Case No. 261 and asserted exactly the same .The defendants filed a
motion to dismiss on several grounds, namely: res judicata, prescription, lack
of cause of action, failure to include indispensable parties, and that the
contract subject of the complaint was void ab initio. After the plaintiff had filed
his opposition to the above motion, the lcissued the order under appeal
dismissing the complaint. Of the above grounds, though, the lower court
relied alone on the defendants' plea of res judicata, lack of cause of action
and prescription.
ISSUE: WON the dismissal of the lower court was proper.
HELD: No, the SC remanded the case to the court of origin.
When certain of the parties to Civil Case No. 261 died and due notice thereof
was given to the trial court, it devolved on the said court to order, not the
amendment of the complaint, but the appearance of the legal representatives
of the deceased in accordance with the procedure and manner outlined in
Rule 3, Section 17 of the Rules of Court. In the case of Barrameda vs.
Barbara, 90 Phil. 718, the SC held that an order to amend the complaint,
before the proper substitution of parties as directed by the aforequoted rule
has been effected, is void and imposes upon the plaintiff no duty to comply
therewith to the end that an order dismissing the said complaint, for such
non-compliance, would similarly be void. In a subsequent case, Ferriera et al.
vs. Gonzalez, et al., G.R. No. L-11567, July 17, 1958, this court affirmed a
similar conclusion on the determination that the continuance of a
proceedings during the pendency of which a party thereto dies, without such
party having been validly substituted in accordance with the rules, amounts
to a "lack of jurisdiction."
The facts of this case fit four squares into the Barrameda case abovecited,
save for the minor variance that in the former two of the litigants died while
only one predeceased the case in Barrameda. Here, as in Barrameda, during
the pendency of civil case, notice was given to the trial court of the deaths of
one of the plaintiffs and one of the defendants in it. Instead of ordering the
substitution of the deceased's legal representatives in accordance with Rule
3, section 17 of the Rules of Court, the trial court directed the surviving
plaintiff to amend the complaint and when the latter failed to comply
therewith, the said court dismissed the complaint for such non-compliance.
We must hold, therefore, as We did in Barrameda that inasmuch as there
was no obligation on the part of the plaintiff-appellant herein to amend his
complaint in Civil Case No. 261, any such imposition being void, his failure to
comply with such an order did not justify the dismissal of his complaint.
Grounded as it was upon a void order, the dismissal was itself
void.Consequently, as the dismissal of Civil Case No. 261 was void, it clearly
may not be asserted to bar the subsequent prosecution of the same or
identical claim.
A cause of action is an act or omission of one party in violation of the legal
right or rights of the other (Ma-ao Sugar Central vs. Barrios, 79 Phil. 666) and
both these elements were clearly alleged in the aforesaid complaint.
The resolution of the issue of prescription may be deferred until after the
case is tried on the merits where the defense pleaded against said issue is
the existence of a trust over the property in dispute.
Agustin Casenas vs. Concepcion Sanchez de Rosales, Romeo Rosales,
et. Al. (1967)

[facts]

Case 1 prays for the execution of DOS in favour of Casenas: filed by Rodolfo
Aranas(assignor) and Casenas(assignee) vs. Jose Rosales and Sanchez.

Rosales and Sanchez filed an answer before trial. Counsel for Aranas and
Casenas manifested the death of Jose Rosales and Aranas. The court
ordered Casenas to amend the complaint. Casenas failed to comply, thus, it
was dismissed.

Case 2 (present case) prays for quieting and reconveyance of title in favour
of Casenas. Sanchez claims res judicata.

[issue] Whether or not dismissal in the prior case effectively bars the present
case

[ruling] No. The order to amend the complaint is not in accordance with the
procedure of the RC. The court should have ordered the counsel to make a
substitution of the deceased by the legal representatives of the deceased.
Casenas’ failure to comply with the order of the court did not validly justify the
dismissal of the said case.