G.R. No.
L-29742 March 29, 1972
VICENTE YU, plaintiff-appellant,
vs.
EMILIO MAPAYO, defendant-appellee.
REYES, J.B.L., J.:p
Appeal from an order of the Court of First Instance of Davao City,
Branch II (Judge Alfredo I. Gonzalez presiding), rendered in its Civil
Case No. 4018, dismissing plaintiff's action for lack of prosecution.
FACTS: VICENTE YU, plaintiff-appellant, therein had filed suit to
recover from defendant Emilio Mapayo the sum of P2,800,
representing the unpaid balance of the purchase price of a Gray Marine
Engine sold by the plaintiff to the defendant, plus attorney's fees. The
answer admitted the transaction and the balance due but contended that
by reason of hidden defects of the article sold, the defendant had been
forced to spend P2,800 for repairs and labor, wherefore plaintiff had
agreed to waive the balance due on the price of the engine, and
counterclaimed for damages and attorneys' fees. The City Court, after
trial, disallowed the defenses and ordered the defendant to pay
plaintiff P2,500.00 and costs.
Defendant Mapayo appealed to the Court of First Instance, filing
an answer therein that was a virtual reproduction of his original
defenses in the City Court. When, after several continuances, the case
was called for hearing on 13 March 1968, the defendant, as well as his
counsel, failed to appear and the court scheduled the case for hearing
ex parte on the same day. The Court ordered plaintiff to present his
evidence.
The court then issued an order on the same day in the following
terms
ORDER
Make it of record that the attorney for the
plaintiff refuses to present evidence, either oral
or documentary, when required by the Court.
A motion for reconsideration having been filed by counsel for plaintiff,
it was denied by the court by an order of 21 March, and the case was
dismissed for lack of prosecution, the trial judge reasoning that
When the case is called for trial on 19 March 1968,
defendants counsel asked again for another
postponement of the trial on the ground that
defendant and his witnesses were not able to come
for lack of transportation, notwithstanding a stern
warning by the Court, per its order of 9 March 1968
that it would not entertain further motion for
continuation of trial. Counsel for the plaintiff
vehemently objected to such motion and insisted in
presenting his evidence which the Court grants
inspite of another civil case and one miscellaneous
case which were ready for hearing at the same time.
Court ordered the plaintiff to present his evidence.
Plaintiff's counsel refused to comply with said
order. Instead of calling his witnesses, he moved
the Court to present them after the defendant had
presented their evidence. The court asked said
counsel twice whether he would present his
evidence for the plaintiff, but said counsel refused
CIVIL PROCEDURE L-P
to do so and sticked to his demand that he would
introduce his witnesses only in rebuttal. This is
dictation to the Court to disregard its lawful
command and a violation of the order of trial
provided in the Rules of Court.
This is an appealed case from the Municipal Court
elevated to this Court on 18 May 1963 and from
that time several postponement were granted at the
instance of the parties which cause delay and is
detrimental to the interest of justice.
IN VIEW WHEREOF, let this case be dismissed
for failure to prosecute on the part of counsel for
the plaintiff without pronouncement as to costs.
Finding defendant's counterclaim not meritorious,
same is also dismissed.
Further motions to reconsider having proved futile, the plaintiff
appealed.
ISSUE: W/N the CFI/trial court erred in dismissing the appeal filed
by the plaintiff for failure to present evidences?
HELD: YES!
We find for plaintiff-appellant. Since the answer admitted defendant's
obligation as stated in the complaint, albeit special defenses were
pleaded, plaintiff had every right to insist that it was for defendant to
come forward with evidence in support of his special defenses. Section
2 of Revised Rule of Court 129 plainly supports appellant:
Sec. 2. Judicial admissions. Admissions made by
the parties in the pleadings, or in the course of the
trial or other proceedings do not require proof and
can not be contradicted unless previously shown to
have been made through palpable mistake.
While this appeal is not a complaint against the presiding judge, We can
not refrain from observing that the trial judge's despotic and outrageous
insistence that plaintiff should present proof in support of allegations
that were not denied but admitted by the adverse party was totally
unwarranted, and was made worse by the trial judge's continual
interrupting of the explanations of counsel, in violation of the rules of
Judicial Ethics.
Defendant not having supported his special defenses, the dismissal of
the case was manifestly untenable and contrary to law.
WHEREFORE, the appealed order of dismissal is hereby revoked and
set aside, and the court below is directed to enter judgment in favor of
plaintiff and against the defendant for the sum of P2,800.00, plus
attorney's fees which this Court considers just and reasonable. Costs
against defendant-appellee.
FEBRUARY 9, 2016
G.R. No. L-20089 December 26, 1964
BEATRIZ P. WASSMER, plaintiff-appellee,
vs.
FRANCISCO X. VELEZ, defendant-appellant.
BENGZON, J.P., J.:
FACTS: Francisco X. Velez and Beatriz P. Wassmer, following their mutual
promise of love, decided to get married and set September 4, 1954 as the big
day. On September 2, 1954 Velez left this note for his bride-to-be:
Dear Bet
Will have to postpone wedding My mother opposes it.
Am leaving on the Convair today.
Please do not ask too many people about the reason why
That would only create a scandal.
Paquing
But the next day, September 3, he sent her the following telegram:
NOTHING CHANGED REST ASSURED RETURNING
VERY SOON APOLOGIZE MAMA PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from again.
Sued by Beatriz for damages, Velez filed no answer and was
declared in default. Plaintiff adduced evidence before the clerk of court as
commissioner, and on April 29, 1955, judgment was rendered ordering
defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral
and exemplary damages; P2,500.00 as attorney's fees; and the costs.
Defendant filed a "petition for relief from orders, judgment and
proceedings and motion for new trial and reconsideration." Plaintiff moved
to strike it cut. But the court, on August 2, 1955, ordered the parties and their
attorneys to appear before it on August 23, 1955 "to explore at this stage of the
proceedings the possibility of arriving at an amicable settlement." It added that
should any of them fail to appear "the petition for relief and the opposition
thereto will be deemed submitted for resolution."
defendant failed to appear before court. Instead, on the following
day his counsel filed a motion to defer for two weeks the resolution on
defendants petition for relief. The counsel stated that he would confer with
defendant in Cagayan de Oro City the latter's residence on the possibility
of an amicable element. The court granted two weeks counted from August 25,
1955.
Plaintiff manifested on June 15, 1956 that the two weeks given by the court had
expired on September 8, 1955 but that defendant and his counsel had failed to
appear.
Another chance for amicable settlement was given by the court in its order of
July 6, 1956 calling the parties and their attorneys to appear on July 13, 1956.
This time. however, defendant's counsel informed the court that chances of
settling the case amicably were nil.
On July 20, 1956 the court issued an order denying defendant's aforesaid
petition. Defendant has appealed to this Court. In his petition of June 21, 1955 in
the court a quo defendant alleged excusable negligence as ground to set aside
the judgment by default. Specifically, it was stated that defendant filed no
answer in the belief that an amicable settlement was being negotiated.
CIVIL PROCEDURE L-P
A petition for relief from judgment on grounds of fraud, accident, mistake or
excusable negligence, must be duly supported by an affidavit of merits stating
facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's
affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a
good and valid defense against plaintiff's cause of action, his failure to marry the
plaintiff as scheduled having been due to fortuitous event and/or circumstances
beyond his control." An affidavit of merits like this stating mere conclusions
or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct.
10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.)
ISSUE: W/N the trial court erred in declaring the defendant in default?
HELD: No!
In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court
pointed out that the procedure of designating the clerk of court as
commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of
the Rules of Court. Now as to defendant's consent to said procedure, the
same did not have to be obtained for he was declared in default and thus
had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of
First Instance, L-14557, October 30, 1959).
In support of his "motion for new trial and reconsideration," defendant asserts
that the judgment is contrary to law. The reason given is that "there is no
provision of the Civil Code authorizing" an action for breach of promise to
marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept.
30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that
"mere breach of a promise to marry" is not an actionable wrong. We pointed
out that Congress deliberately eliminated from the draft of the new Civil
Code the provisions that would have it so.
It must not be overlooked, however, that the extent to which acts not contrary to
law may be perpetrated with impunity, is not limitless for Article 21 of said
Code provides that "any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage."
The record reveals that on August 23, 1954 plaintiff and defendant applied for a
license to contract marriage, which was subsequently issued. Their wedding was
set for September 4, 1954. Invitations were printed and distributed to relatives,
friends and acquaintances. The bride-to-be's trousseau, party dresses and other
apparel for the important occasion were purchased. Dresses for the maid of
honor and the flower girl were prepared. A matrimonial bed, with accessories,
was bought. Bridal showers were given and gifts received And then, with but
two days before the wedding, defendant, who was then 28 years old,: simply left
a note for plaintiff stating: "Will have to postpone wedding My mother
opposes it ... " He enplaned to his home city in Mindanao, and the next day, the
day before the wedding, he wired plaintiff: "Nothing changed rest assured
returning soon." But he never returned and was never heard from again.
Surely this is not a case of mere breach of promise to marry. As stated, mere
breach of promise to marry is not an actionable wrong. But to formally set a
wedding and go through all the above-described preparation and publicity,
only to walk out of it when the matrimony is about to be solemnized, is
quite different. This is palpably and unjustifiably contrary to good customs
for which defendant must be held answerable in damages in accordance
with Article 21 aforesaid.
Defendant urges in his afore-stated petition that the damages awarded were
excessive. No question is raised as to the award of actual damages. What
defendant would really assert hereunder is that the award of moral and
exemplary damages, in the amount of P25,000.00, should be totally eliminated.
Per express provision of Article 2219 (10) of the New Civil Code, moral
damages are recoverable in the cases mentioned in Article 21 of said Code. As to
exemplary damages, defendant contends that the same could not be adjudged
against him because under Article 2232 of the New Civil Code the condition
precedent is that "the defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." The argument is devoid of merit as under the
above-narrated circumstances of this case defendant clearly acted in a
"wanton ... , reckless [and] oppressive manner." T
FEBRUARY 9, 2016
G.R. No. L-17721 October 16, 1961 HELD: NO! We find no merit in the appeal.

GREGORIO APELARIO, doing business under the style
"GREGORIO TRADING," plaintiff-appelleee,
vs.
INES CHAVEZ & COMPANY, LTD., doing business under the
style "FIDELITY MOTOR SUPPLY COMPANY, LTD., and INES
CHAVEZ, defendants-appellants.
REYES, J.B.L., J.:
As pointed out in the judgment complained of the defendants-
appellants had admitted all the material allegations of the
complaint concerning the existence of the debt and its non-
payment. The pleaded excuse, that they had requested plaintiff to
wait because appellants' many accounts receivable had not yet been
collected, is clearly no defense, for a debtor can not delay payment
due just to suit its convenience, and the creditor is not an
underwriter of his debtor's business unless so stipulated.

Appeal from a judgment on the pleadings rendered by the Court of First The denial of the averment concerning the stipulated fees of plaintiff's
Instance of Manila on June 8, 1959 in its Case No. 39822, and certified attorney tendered no genuine issue, for even without such allegations, it
by the Court of Appeals to this Court on the ground that only questions was discretionary in the court to allow reasonable attorneys' fees by
of law are involved. way of damages, if it found just and equitable to allow their recovery.
In this case, allowance of such fees was justified since defendant
admitted having issued to the creditor checks without funds, not once
FACTS: plaintiff Gregorio Apelario filed a complaint against Ines but twice. It is well to note the P750 attorney's fees claimed by plaintiff
Chavez & Company, Ltd., a limited partnership, and its general partner, were reduced to P500 only.
Ines Chavez. It was therein averred, in substance, that on or about
October 28, 1958, the defendant partnership had purchased on credit
from plaintiff ten sets of axle assemblies for the sum of P2,400.00; that Nor does the denial of the complaint's averments concerning the
on December 6, 1958, defendant delivered in payment to the plaintiff fraudulent removal and disposition of defendant's property constitute a
two postdated cash checks for P1,200.00 each, drawn against the bar to a judgment on the pleadings, since the defendant neither claimed
Philippine Bank of Commerce; that when the checks were presented for nor asked for any damages on account of the issuance and levy of the
payment, they were dishonored for lack of funds, whereupon the writ of attachment.
defendant took back the checks and replaced them with two other
checks, also postdated, for the same amount as before; that these checks
were also dishonored; that the plaintiff, on February 23, 1959,
demanded payment in cash, but defendant refused to pay; that because
of such malicious and willful refusal, plaintiff had to engage the
services of counsel for an agreed fee of P750.00; that defendant was
about to remove and dispose of its properties with intent to defraud the
plaintiff, wherefore a writ of attachment became necessary; and prayer
was made for judgment in favor of plaintiff and against the defendant
for the sum of P2,400.00, with legal interest from the filing of the
complaint, and for P750.00 attorney's fees, with expenses and costs.
Plaintiff also moved and duly obtained a writ of attachment.

Defendants obtained the lifting of the attachment by filing a

counterbond on April 14, 1959; and on May 7, 1959, they filed an
answer admitting the allegations of paragraphs 1 and 6 of the
complaint, admitting that plaintiff had demanded payment of P2,400,
but pleaded that

defendants could not pay the plaintiff, because they have so

many accounts receivable which have not yet been paid to
them, of which fact the defendant was duly informed by the
plaintiff and thereby requested to wait a while.

Defendants further averred having no knowledge or information of the

allegations of paragraph 8 of the complaint concerning the attorneys'
fees; denied having performed any act of removal or disposal of its
property, branding plaintiff's allegations in paragraph 9 to be false and
malicious; and prayed for dismissal of the complaint.

the trial court rendered judgment on the pleadings, sentencing

defendants to pay P2,400, plus legal interest from the filing of the
complaint; and P500 attorney's fees.

Defendants appealed, and now claim that it was error for the lower
court to have rendered judgment on the pleadings, because the
answer raised material issues.

ISSUE: W/N the lower court errred in rendering judgment on

pleadings?

CIVIL PROCEDURE L-P FEBRUARY 9, 2016

G.R. No. L-28140 March 19, 1970
CAPITOL MOTORS CORPORATIONS, plaintiff-appellee,
vs.
NEMESIO I. YABUT, defendant-appellant.
FACTS: On March 1, 1966, Capitol Motors Corporations filed a complaint
against Nemesio I. Yabut. It was therein averred that on April 24, 1965, the
defendant executed in favor of the plaintiff a promissory note for the sum of
P30,134.25, payable in eighteen (18) equal monthly installments with interest at
12% per annum, the first installment to become due on June 10, 1965, that it
was stipulated in the promissory note that should the defendant fail to pay two
(2) successive installments, the principal sum remaining unpaid would
immediately become due and demandable and the defendant would, by way of
attorney's fees and costs of collection, be obligated to the plaintiff for an
additional sum equivalent to 25% of the principal and interest due; that as of
February 23, 1966, the sum remaining unpaid on the promissory note was
P30,754.79, including accrued interest; that the defendant defaulted in the
payment of two (2) successive installments, and likewise failed to pay the
interest due on the promissory note; and that in spite of demands by the plaintiff,
the defendant failed and refused to pay the said principal sum and interest due.
Prayer was made that the defendant be ordered to pay the plaintiff the sum of
P30,754.79, as well as the interest due thereon from February 23, 1966, and an
additional sum equivalent to 25% of the amount due, plus costs.
within the reglementary period, the defendant, through his counsel, filed an
answer which reads:
DEFENDANT through counsel alleges:
1. Paragraph 1 of the complaint is admitted.
2. Paragraphs 2, 3, 4, 5, 6 and 7 of the complaint are
specifically denied for lack of knowledge sufficient to
form a belief as to the truth thereof.
WHEREFORE, it is respectfully prayed that the
Complaint be dismissed with costs against the plaintiff.
the plaintiff filed a motion for judgment on the pleadings, on the
ground that the defendant, not having set forth in his answer the substance of the
matters relied upon by him to support his denial, had failed to deny specifically
the material allegations of the complaint, hence, must be deemed to have
admitted them. The defendant did not file an opposition to the motion. On
September 13, 1966, after hearing on the motion, the court issued an order
granting the said motion and considering the case submitted for decision on
the basis of the pleadings; and on January 9, 1967, the court rendered
judgment granting in toto the plaintiff's prayer in its complaint.
Hence this appeal, defendant-appellant contends that the court a quo erred in
considering him as having failed to deny specifically the material allegations of
the complaint, and, consequently, in deciding the case on the basis of the
pleadings. Citing Moran, Comments on the Rules of Court, Vol. I, 1963 Ed., p.
281, he argues that since Section 10, Rule 8 of the Revised Rules of Court,
recognizes three (3) modes of specific denial, namely: (1) by specifying each
material allegation of fact in the complaint the truth of which the defendant does
not admit, and, whenever practicable, setting forth the substance of the matters
which he will rely upon to support his denial or (2) by specifying so much of an
averment in the complaint as is true and material and denying only the
remainder or (3) by stating that the defendant is without knowledge or
information sufficient to form a belief as to the truth of a material averment
in the complaint, which has the effect of a denial, and he has adopted the third
mode of specific denial, his answer tendered an issue, and, consequently the
court a quo could not render a valid judgment on the pleadings.
ISSUE: W/N the court a quo erred in rendering judgment on the pleadings?
HELD: NO! This appeal is without merit.
We agree with defendant-appellant that one of the modes of specific denial
contemplated in Section 10, Rule 8, is a denial by stating that the defendant is
without knowledge or information sufficient to form a belief as to the truth of a
CIVIL PROCEDURE L-P
material averment in the complaint. The question, however, is whether
paragraph 2 of defendant-appellant's answer constitutes a specific denial
under the said rule. We do not think so. In Warner Barnes & Co., Ltd. vs.
Reyes, et al., G.R. No. L-9531, May 14, 1958 (103 Phil., 662), this Court said
that the rule authorizing an answer to the effect that the defendant has no
knowledge or information sufficient to form a belief as to the truth of an
averment and giving such answer the effect of a denial, does not apply where the
fact as to which want of knowledge is asserted, is so plainly and necessarily
within the defendant's knowledge that his averment of ignorance must be
palpably untrue. The same thing can be said in the present case, where a copy
of the promissory note sued upon was attached to the complaint. The
doctrine in Warner Barnes & Co., Ltd. was reiterated in J. P. Juan & Sons, Inc.
vs. Lianga Industries, Inc., G.R. No. L-25137, July 28, 1969 (28 SCRA 807).
And in Sy-quia vs. Marsman, G.R. No. L-23426, March 1, 1968 (22 SCRA 927),
this Court said:
With regard to the plea of lack of knowledge or
information set up in paragraph 3 of the answer, this
Court's decision in Warner Barnes vs. Reyes, 103 Phil.
662, 665, is authority for the proposition that this form of
denial must be availed of with sincerity and good faith,
not for the purpose of confusing the other party, nor for
purposes of delay. Yet, so lacking in sincerity and good
faith is this part of the answer that defendants-appellants
go to the limit of denying knowledge or information as to
whether they (defendants) were in the premises (Marsman
Bldg.) on January 4, 1961, as averred in paragraph 4 of
the complaint. Yet whether such a fact was or was not true
could not be unknown to these defendants.
In National Marketing Corporation vs. De Castro, 106 Phil. 803 (1959), this
Court held:
Furthermore, in his answer to the appellee's complaint, he
merely alleged that 'he has no knowledge or information
sufficient to form a belief as to the truth of the matters
contained in paragraphs 3, 4, 5 and 6 so much so that he
denies specifically said allegations.' A denial is not
specific simply because it is so qualified. . Material
averments in a complaint, other than those as to the
amount of damage, are deemed admitted when not
specifically denied. (Section 8, Rule 9,) The court may
render judgment upon the pleadings if material
averments in the complaint are admitted. (Section 10,
Rule 35; Baetamo vs. Amador, supra, Lichauco vs.
Guash, 76 Phil. 5; Lati vs. Valmores, G.R. No. L-6877, 30
March 1954.)
It becomes evident from all the above doctrines that a mere allegation of
ignorance of the facts alleged in the complaint, is insufficient to raise an issue;
the defendant must aver positively or state how it is that he is ignorant of
the facts so alleged.
There are two other reasons why the present appeal must fail. First. The present
action is founded upon a written instrument attached to the complaint, but
defendant-appellant failed to deny under oath the genuineness and due
execution of the instrument; hence, the same are deemed admitted. Second.
Defendant-appellant did not oppose the motion for judgment on the
pleadings filed by plaintiff appellee; neither has he filed a motion for
reconsideration of the order of September 13, 1966, which deemed the case
submitted for decision on the pleadings, or of the decision rendered on
January 9, 1967. In Santiago vs. Basilan Lumber Company, G.R. No. L-15532,
October 31, 1963 (9 SCRA 349), this Court said:
It appears that when the plaintiff moved to have the case
decided on the pleadings, the defendant interposed no
objection and has practically assented thereto. The
defendant, therefore, is deemed to have admitted the
allegations of the complaint, so that there was no
necessity for the plaintiff to submit evidence of his claim.
FEBRUARY 9, 2016
G.R. No. L-10884 March 31, 1959
PHILIPPINE NATIONAL BANK, plaintiff-appellee,
vs.
PHILIPPINE LEATHER CO. INC., ET AL., defendants-appellants.
FACTS: In its complaint filed in the Court of First Instance of Manila, the
plaintiff alleges that on 1 September 1952 the defendant Philippine Leather Co.,
Inc. applied for a commercial letter of credit in the sum of $14,814.80, in U.S.
currency, under the terms and conditions set forth in an application filed by the
defendants in favor of the Turner Tanning Machinery Co. of Peabody,
Massachusetts, U.S.A. to cover the full invoice value of certain machineries and
their accessories; that on 3 October 1952 the plaintiff approved the application
"subject to 30% deposit and the joint and several signatures of Mr. Isidoro
Tinoco and Mrs. Soledad L. Basa" which conditions were complied with; that on
8 October 1952, the plaintiffs issued Letter of Credit No. 51469 in favor of the
Turner Tanning Machinery Company; that on 15 November 1952 the Turner
Tanning Machinery Co., drew upon the letter of credit the sum of $14,549.17,
U.S. currency; that upon arrival in the Philippines of the machineries and their
accessories imported by the defendants under a trust receipt, that on 23 January
1953 the plaintiff presented to the defendants for payment the draft drawn by the
Turner Tanning Machinery Co., upon Letter of Credit No. 51469 which was
accepted by them; that after the draft had matured on 23 April 1953 the plaintiff
made numerous demands upon the defendants to pay the amount of the draft and
the charges due thereon but the defendants failed and refused to pay; and that as
of 15 October 1953, the outstanding balance of the defendants on the draft is
P22,787.79, Philippine currency, plus interest thereon at the rate of P4.89135
daily until fully paid. It alleges further that on 30 January 1953 the defendant
Philippine leather Co., Inc., applied for a commercial letter of credit in the sum
of $2,587.50, U.S. currency, under the terms and conditions set forth in an
application filed by the defendants in favor of Bay State Chemical Co., of
Boston, Massachusetts, U.S.A., to pay for the importation of color dye; that the
plaintiff approved the application "subject to 30% deposit and the joint and
several signatures of Mr. Isidoro Tinoco and Mrs. Soledad L. Basa," which
conditions were complied with; that thereafter the plaintiff issued Letter of
Credit No. 53753 in favor of the Bay State chemical Co., that on 12 March 1953
the Bay State Chemical Co., drew upon the letter of credit the sum of $2,482.40,
U.S. currency; that the draft drawn by the Bay State Chemical Co., was
presented by the plaintiff to the defendants for payment; that the defendants
failed and refused to pay the amount of the draft and the charges due thereon;
that because of the failure and refusal of the defendants to pay their obligation,
the plaintiff delivered the documents of the shipment to the Luzon Brokerage
Co., and requested it to claim and store the shipment in its bonded warehouse,
for which service and storage the defendants are liable to the Luzon Brokerage
Co.; that as of 15 October 1953; the outstanding balance of the defendants on the
draft is P4,503.05, Philippine currency, plus interest thereon at the rate of
P.083569 daily until fully paid.
The plaintiff prays that after hearing judgment be rendered ordering the
defendants to pay it the sum of P22,787.79, with daily interest thereon at the rate
of P4.89135 from 15 October 1953 until fully paid; 10% of the said amount as
attorney's fee; P4,503.05, with daily interest thereon at the rate of P0.83569 from
15 October 1953 until fully paid; the amount of storage and other charges that
the Luzon Brokerage Co., would charge the plaintiff for the handling and storage
of the merchandise imported by the defendants under Letter of Credit No.
53753; and the costs of the suit. The plaintiff further prays that pending
hearing and final judgment, a writ of attachment be issued commanding the
Sheriff of the City of Manila to levy upon attachment on the properties of
the defendants as security for the satisfaction of any judgment that it may
secure against them.
In their answer filed on 28 December 1953 the defendants admit
the plaintiff's averments except as to the correctness of the amounts due on
the two drafts, the correctness of which they were still checking, and for
that reason lacking sufficient knowledge or information to form a belief as
to the truth and veracity of the amounts due on the two drafts, they deny
the amounts claimed by the plaintiff to be due from them.
the plaintiff filed a motion for summary judgment on the ground
that since the defendants had admitted the material averments of its
complaint except as to the correctness of the amounts due, the defendant's
answer did not tender a genuine issue. The plaintiff attached to its motion an
affidavit subscribed and sworn to by Ceferino Saavedra, Manager of the Special
Assets Department of the plaintiff, in charge of all outstanding accounts of its
CIVIL PROCEDURE L-P
debtors, stating the payments made by the defendants on their account and the
exact total amount due from them.
the Court granted the plaintiff's motion and rendered judgment
ordering the defendants, jointly and severally, to pay
. . . the plaintiff in the first cause of action, the amount of P22,787.79,
with a daily interest of P4.89135 from October 15, 1953 up to full
payment thereof, and 10% of the amount due for attorney's fees. On
the second cause of action, defendants shall pay, jointly and
severally, the sum of P4,503.05, with a daily interest of P0.83569
from October 15, 1953 until full payment thereof.
Defendants shall also pay the costs.
The defendants appealed to the Court of Appeals. The latter certified the
case to this Court for the reason that only questions of law are raised.
ISSUE: W/N the lower court erred in rendering a summary judgment in
favor of the plaintiff?
HELD: NO!
Rule 36 provides:
Section 1. Summary judgment for claimant. A party seeking to
recover upon a claim, counterclaim, or crossclaim or to obtain a
declaratory relief may, at any time after the pleading in answer
thereto has been served, move with affidavits for a summary
judgment in his favor upon all or any part thereof.
SEC. 3. Motion and proceedings thereon. The motion shall be
served at least ten days before the time specified for the hearing. The
adverse party prior to the day of hearing may serve opposing
affidavits. The judgment sought shall be rendered forthwith if the
pleadings, depositions, and admissions or file, together with the
affidavits, show that, except as to the amount of damages, there is no
genuine issue as to any of the material fact and that the moving party
is entitled to a judgment as a matter of law.
SEC. 5. Form of affidavits. Supporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated therein. Sworn
or certified copies of all papers of parts thereof referred to in an
affidavit shall be attached thereto or served therewith.
The defendant's answer that as to the first cause of action they
. . . are still checking on the correctness of the alleged balance
outstanding against them and in favor of the plaintiff; consequently,
for lack of knowledge or information sufficient to form a belief as to
the truth and veracity of the averments embodied in paragraph 7
thereof, they hereby specifically deny the allegations therein stated;
and that so to the second cause of action they
. . . are checking on the veracity and correctness of the balance
allegedly outstanding in favor of the plaintiff manifested in paragraph
6 of the same, they, by virtue thereof, specifically deny it for lack of
knowledge and belief as to the truth of the allegations embodied in
the aforestated paragraph.
does not tender a genuine issue. In fact they admit that they are indebted to
the plaintiff. As the affidavit subscribed and sworn to by the Manager of the
Special Assets Department of the plaintiff, in charge of all outstanding
accounts of its debtors, attached to the motion for summary judgment,
furnishes the Court with the payments made by the defendants on their
account and the amount due from them, which they failed to oppose by
counter affidavits, the plaintiff is entitled to summary judgment.1
FEBRUARY 9, 2016
G.R. No. L-49668 November 14, 1989
POLICARPIO, LUCIO, JULIAN, CATALINO,
BONIFACIO, CONRADA, DOMINGO, PAQUITA, AND
LILIA, ALL SURNAMED GALICIA, petitioners,
vs.
THE HON. WENCESLAO M. POLO, in his capacity as
Presiding Judge, CFI, Branch V, Samar (Calbayog City),
ZOSIMA PALAJOS, TITING LISTOJAS, ALFREDO
PALAJOS, MANUELITO ROSIALDA, respondents.
BIDIN, J.:
This is a petition for review on certiorari seeking to set aside
the summary judgment entered by the then Court of First
Instance of Samar, Br. V in Civil Case No. 758-CC
entitled, "Policarpio, Lucio, Julian, Catalino, Bonifacio,
Conrada, Domingo, Paquita and Lilia, all surnamed Galicia v.
Zosima Palajos, Titing Listojas, Alfredo Palajos and Manuelito
Rosialda" and to order the trial court to try the above-cited case
on the merits.
FACTS: On December 15, 1973. a complaint for forcible
entry (Civil Case No. 56) entitled "Amancio Palajos v.
Policarpio, Perfecto, Victorio Julian and Eduardo, all
surnamed Galicia," was filed in the Municipal Court of
Almagro, Samar, alleging that Amancio Palajos is the owner
and in actual possession of a parcel of land located at Bacjao,
Almagro, Samar, more particularly described as follows:
A parcel of land with an area of about 4-88-00
hectares, more or less, assessed at P 360.00 as
per Tax Declaration No. 8547 in the name of
Juan Palajos, it is, however, 14.2860 hectares
as per approved survey plan, the boundaries of
which are: N Pedro Galicia and the
Poblacion of Barrio Bacjao; S Emilio
Carpon, Magno Suico and Teresa Subito; and
W Bernardo Ballarante and Cenon S.
Aguilar.
which he acquired by way of donation from his father, Juan
Palajos. It is further alleged that defendants (petitioners herein)
forcibly entered the northeastern portion of the said property
covering an area of about 1 1/2 hectares.
The trial of the case was set several times but was postponed at
the instance of defendants (petitioners herein). For the fifth time,
i.e., on July 19, 1974, neither the defendants nor counsel
appeared. Accordingly, the court granted a trial ex parte on
motion of plaintiffs counsel (Rollo, p. 24).
Subsequently, the municipal trial court rendered judgment
against defendants (petitioners herein),
Defendants filed a motion for reconsideration and to grant a
new trial but was denied in an Order dated October 24, 1974.
Defendants filed a notice of appeal but the same was likewise
denied by the trial court on the ground that it was filed
CIVIL PROCEDURE L-P
beyond the reglementary period of fifteen (15) days to
perfect an appeal.
For failure of the defendants to pay the rentals adjudged in the
forcible entry case, a writ of execution was issued and after levy,
the deputy sheriff of Calbayog City, on August 4, 1976, sold at
public auction the real property owned by petitioners' deceased
father adjoining the land subject of the forcible entry case more
particularly described as follows:
over 14 months after the execution sale, petitioners
filed a complaint for Ownership and Damages against herein
respondents in the then Court of First Instance of Samar,
alleging that they are co-owners of a certain parcel of
agricultural land (subject of the auction sale) which they
inherited from their deceased father, Pedro Galicia.
The complaint further alleged that pursuant to Civil Case No. 56
(forcible entry case), respondents were able to take possession
of the land in question as said case was heard ex-parte; and that
a decision was rendered in respondents' favor and said decision
was executed sometime in 1976.
In their Answer, respondents (defendants below) countered that
they were able to take possession of the land described in the
complaint by virtue of the decision and later, execution of the
decision in the forcible entry case, which, by petitioners'
(plaintiffs below) averment in their complaint is an admission of
an existing judgment that would constitute res judicata; that
they are the lawful owners of the disputed land the same having
been subjected to levy and execution in 1975 thru a sale in favor
of respondents' predecessor-in-interest, Juan Palajos.
The issues having been enjoined, the case was set for pre-trial
by respondent judge Hon. Wenceslao M. Polo. At the pre-trial,
counsel for private respondents moved for time within which
to file a motion for summary judgment which was granted
by respondent judge in his order dated June 28, 1978.
the court a quo rendered the assailed summary
judgment dismissing petitioners' complaint
A motion to re-open the case for trial on the merits was filed
by plaintiffs but was denied.
Hence, this instant petition.
ISSUE: W/N the trial court erred when it decided Civil Case
No. 758-CC by summary judgment when there are several
genuine issues involved therein which require a trial?
HELD: NO!
After a thorough review of the records, the Court finds no
cogent reason to disturb the summary judgment rendered by
respondent judge.
The Rules of Court authorizes the rendition of summary
judgment if the pleadings, depositions and admissions on file
together with the affidavits, show that, except as to the
FEBRUARY 9, 2016
amount of damages, there is no issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law (Sec. 3, Rule 34). Conversely, summary
judgment is not proper where the pleadings tender vital issues
the resolution of which call for the presentation of evidence
(Villanueva v. NAMARCO, 28 SCRA 729 [1969]; Guevarra, et
al., v. CA, et al., 124 SCRA 297 [1983]).
Summary judgment "is a device for weeding out sham claims or
defenses at an early stage of the litigation, thereby avoiding the
expense and loss of time involved in a trial. The very object is
'to separate what is formal or pretended in denial or averment
from what is genuine and substantial, so that only the latter may
subject a suitor to the burden of trial.' The test, therefore, of a
motion for summary judgment is-whether the pleadings,
affidavits, and exhibits in support of the motion are
sufficient to overcome the opposing papers and to justify a
finding as a matter of law that there is no defense to the
action or the claim is clearly meritorious" (Estrada v. Hon.
Consolacion, et al., 71 SCRA 523 [1976]).
In addition, summary judgment is one of the methods
sanctioned in the present Rules of Court for a prompt
disposition of civil actions wherein there exists no serious
controversy. The procedure may be availed of not only by
claimants, but also by defending parties who may be the object
of unfounded claims. A motion for summary judgment assumes
that scrutinizing the facts will disclose that the issues presented
by the pleadings need not be tried because they are so patently
unsubstantial as not to be genuine issues, or that there is no
genuine issue as to any material facts or where the facts appear
undisputed and certain from the pleadings, depositions,
admissions and affidavits (Singleton v. Philippine Trust Co., 99
Phil, 91 [1956], cited in Bayang v. CA, 148 SCRA 91 [1987]).
Examining petitioners' complaint, the Court finds
that the disputed property is the same parcel of land, which
adjoins private respondents' lot which was the subject of the
forcible entry case and from which petitioners were ordered
to vacate. When petitioners (then defendants), failed to satisfy
CIVIL PROCEDURE L-P
the rentals adjudged in the forcible entry case, said adjoining
parcel of land was sold at public auction to Juan Palajos
(respondents' predecessor-in-interest) as the higher bidder in the
execution sale to satisfy the monetary judgment rendered
therein. The property so described in petitioners' complaint
squarely fits what has been levied upon and sold at public
auction , the owners of which are now private respondents
upon the demise of their predecessor-in-interest.
There is thus no question that issue of ownership of the
disputed land subject of the present petition has long been
foreclosed in the forcible entry case which culminated in
the public auction sale of the parcel of land now sought to be
recovered. Having failed to redeem the property sold at the
public auction sale within the reglementary period of twelve
(12) months (Sec. 30, Rule 39 of the Rules of Court),
petitioners cannot now claim that they still own said
property. Petitioners' complaint for Ownership and
Damages is but a belated and disguised attempt to revive a
judgment debtors' right of redemption which has long
expired. There being no issue as to any material fact raised
in the pleadings, summary judgment may be rendered.
Neither can the issue of the validity of the execution sale help
petitioners' cause. Well-settled in this jurisdiction, is the rule
that issues not raised and/or ventilated in the lower court
cannot be raised for the first time on appeal. A review of the
records of the case shows that petitioners failed to directly assail
and raise as issue, the validity of the aforementioned auction
sale in their complaint. It was only when the respondent judge
noted such omission in his decision dismissing Civil Case No.
758-CC dated August 11, 1978 that petitioners later filed a
separate action for Annulment of Auction Sale and Damages on
October 4, 1978 . The validity of the execution sale not having
been raised and/or litigated in the case subject of the present
appeal, the Court, at this stage, cannot pass upon the same for
the purpose of determining the propriety of the summary
judgment. Objections to the execution sale cannot be considered
in the Supreme Court inasmuch as it was not raised in the lower
court.
FEBRUARY 9, 2016
G.R. No. 106436 December 3, 1994
VIRGILIO D. IMSON, petitioner,
vs.
HON. COURT OF APPEALS, HOLIDAY HILLS STOCK
AND BREEDING FARM CORPORATION, FNCB
FINANCE CORPORATION, respondents.
FACTS: The case at bench arose from a vehicular collision on
December 11, 1983, involving petitioner's Toyota Corolla and a
Hino diesel truck registered under the names of private
respondents FNCB Finance Corporation and Holiday Hills
Stock and Breeding Farm Corporation. The collision seriously
injured petitioner and totally wrecked his car.
On January 6, 1984, petitioner filed with the RTC Baguio
City 1 a Complaint for Damages 2 Sued were private respondents
as registered owners of the truck; truck driver Felix B. Calip, Jr.;
the beneficial owners of the truck, Gorgonio Co Adarme, Felisa
T. Co (also known as Felisa Tan), and Cirilia Chua Siok Bieng,
and the truck insurer, Western Guaranty Corporation.
The Complaint prayed that defendants be ordered to pay, jointly
and severally, two hundred seventy thousand pesos
(P270,000.00) as compensatory damages, fifty thousand pesos
(P50,000.00) each as moral and exemplary damages, and
attorney's fees, litigation expenses, and cost of suit. 8
Defendants driver and beneficial owners failed to answer
and were declared in default. 4 On May 29, 1987, however,
petitioner and defendant insurer, entered into a compromise
agreement which provided, inter alia:
1. Defendant Western Guaranty Corporation
(Western Guaranty for short) admits that its
total liability under the laws and the insurance
contract sued upon is P70,000.00;
2. In full settlement of its liability under the
laws and the said insurance contract,
defendant Western Guaranty shall pay plaintiff
(herein petitioner) the amount of P70,000.00
upon the signing of this compromise
agreement;
3. This compromise agreement shall in no way
waive nor prejudice plaintiffs (herein
petitioner's) rights to proceed against the other
defendants with respect the remainder of his
claims;
4. This compromise agreement shall be a full
and final settlement of the issues between
plaintiff (herein petitioner) and defendant
Western Guaranty in their complaint and
answer and, from now on, they shall have no
more right against one another except the
enforcement of this compromise agreement.
CIVIL PROCEDURE L-P
In consequence of the compromise agreement, the trial court
dismissed the Complaint for Damages against Western
Guaranty Corporation on June 16, 1987. 8 A copy of the
Order of dismissal was received by private respondent Holiday
Hills Stock and Breeding Farm Corporation on July 13, 1987.
Nearly eighteen (18) months later, said private respondent
moved to dismiss the case against all the other defendants. It
argued that since they are all indispensable parties under a
common cause of action, the dismissal of the case against
defendant insurer must result in the dismissal of the suit against
all of them. The trial court denied the motion.
Private respondent Holiday Hills Stock and Breeding Farm
Corporation assailed the denial order through a Petition
for Certiorari, Prohibition and Mandamus With Restraining
Order filed with respondent Court of Appeals.
On July 10, 1992, the Court of Appeals, 7 through its Special
Sixth Division, 8 reversed the trial court.
Hence this Petition.
ISSUE: W/N CA erred in ruling that since
they are all indispensable
parties under a common cause of action, the dismissal of the
case against defendant insurer must result in the dismissal of
the suit against all of the defendants?
HELD: YES! There is merit to the petition.
In sum, Lim Tanhu states that where a complaint alleges a
common cause of action against defendants who are all
indispensable parties to the case, its dismissal against any of
them by virtue of a compromise agreement with the plaintiff
necessarily results in the dismissal of the case against the other
defendants, including those in default. The ruling is rooted on
the rationale that the court's power to act in a case involving a
common cause of action against indispensable parties "is
integral and cannot be split such that it cannot relieve any of
them and at the same time render judgment against the rest. 10
For Lim Tanhu to apply to the case at bench, it must be
established that: (1) petitioner has common cause of action
against private respondents and the other defendants in
Civil Case No. 248-R; and (2) all the defendants are
indispensable parties to the case.
Cause of action has a fixed meaning in this jurisdiction.
It is the delict or wrong by which the right of the plaintiff is
violated by the defendant. 11 The question as to whether a
plaintiff has a cause of action is determined by the averments in
the pleadings pertaining to the acts of the defendant. Whether
such acts give him a right of action is determined by substantive
law. 12
In the case at bench, it is clear that petitioner has different
and separate causes of action against the defendants in the
case. The allegations in the Complaint show that petitioner
seeks to recover from the truck driver for his wrong which
FEBRUARY 9, 2016
caused injury to petitioner and his car. The cause of action
against him is based on quasi-delict under Article 2176 of the
New Civil Code. Quasi-delict, too, is the basis of the cause of
action against defendants beneficial and registered owners. But
in their case, it is Article 2180 of the same Code which governs
the rights of the parties.
However, with respect to defendant Western Guaranty
Corporation, petitioner's cause of action is based on contract. He
seeks to recover from the insurer on the basis of the third party
liability clause of its insurance contract with the owners of the
truck. This is acknowledged by the second paragraph of the
compromise agreement between petitioner and defendant
insurer, thus:
2. In full settlement of its liability under the
laws and the said insurance contract,
defendant Western Guaranty shall pay plaintiff
(herein petitioner) the amount of P70,000.00
upon the signing of this compromise
agreement.
Quite clearly then, Lim Tanhu will not apply to the
case at bench for there is no showing that petitioner
has a common cause of action against the
defendants in Civil Case No. 248-R.
But this is not all. Defendants in Civil Case No. 248-R are
not all indispensable parties. An indispensable party is one
whose interest will be affected by the court's action in the
litigation, and without whom no final determination of the case
CIVIL PROCEDURE L-P
can be had. The party's interest in the subject matter of the suit
and in the relief sought are so inextricably intertwined with the
other parties' that his legal presence as a party to the proceeding
is an absolute necessity. 13 In his absence there cannot be a
resolution of the dispute of the parties before the court which is
effective, complete, or equitable. 14
Conversely, a party is not indispensable to the suit if his interest
in the controversy or subject matter is distinct and divisible from
the interest of the other parties and will not necessarily be
prejudiced by a judgment which does complete justice to the
parties in court. 15 He is not indispensable if his presence would
merely permit complete relief between him and those already
parties to the action, or will simply avoid multiple litigation. 16
It is true that all of petitioner's claims in Civil Case No. 248-R is
premised on the wrong committed by defendant truck driver.
Concededly, the truck driver is an indispensable party to the suit.
The other defendants, however, cannot be categorized as
indispensable parties. They are merely proper parties to the case.
Proper parties have been described as parties whose presence is
necessary in order to adjudicate the whole controversy, but
whose interests are so far separable that a final decree can be
made in their absence without affecting them. 17 It is easy to see
that if any of them had not been impleaded as defendant, the
case would still proceed without prejudicing the party not
impleaded. Thus, if petitioner did not sue Western Guaranty
Corporation, the omission would not cause the dismissal of the
suit against the other defendants. Even without the insurer, the
trial court would not lose its competency to act completely and
validly on the damage suit. The insurer, clearly, is not an
indispensable party in Civil Case No. 248-R.
FEBRUARY 9, 2016
G.R. No. 101789. April 28, 1993. APPLICABLE. The appropriate remedy is an ordinary appeal
under Section 2 of Rule 41 of the Rules of Court providing in part
BHAGWAN RAMNANI, petitioner, as follows: A party who has been declared in default may likewise
vs. appeal from the judgment rendered against him as contrary to the
COURT OF APPEALS, HON. BUENAVENTURA J. evidence or to the law, even if no petition for relief to set aside the
GUERRERO, as Regional Trial Court Judge of Makati, Metro order of default has been presented by him in accordance with Rule
Manila, Branch 133, SPOUSES CENON G. DIZON and 38. In questioning the dismissal of its petition by the respondent
JULIETTE B. DIZON, respondents. court, the petitioner invokes the case of Pioneer Insurance and
Surety Corporation v. Hontanosas, (78 SCRA 447) where the Court
SYLLABUS
sustained the challenge to an order of default in a petition for
certiorari rather than in an ordinary appeal, which was held as not
1. REMEDIAL LAW; CIVIL PROCEDURE; PRE-TRIAL;
an adequate remedy. That case is not applicable to the present
FAILURE TO APPEAR AT PRE-TRIAL CONFERENCE;
petition. Certiorari was allowed in that case because the petitioner
REMEDIES AVAILABLE. The basic rule is found in Section 2,
was illegally declared in default. The Court held that, first, the
Rule 20, viz: "A party who fails to appear at a pre-trial conference
petitioner could not be compelled to attend an unnecessary second
may be non-suited or considered as in default." As held in Lina v.
pre-trial after it had indicated at the earlier pre-trial that there was
Court of Appeals, the remedies available to a defendant in the
no possibility of an amicable settlement; second, the pre-trial was
regional trial court who has been declared in default are: a) The
premature because the last pleading had not yet been filed at the
defendant in default may, at any time after discovery thereof and
time; and third, there was insufficient notice of the pre-trial to the
before judgment, file a motion, under oath, to set aside the order of
petitioner. In the case at bar, no such irregularities in the pre-trial
default on the ground that his failure to answer was due to fraud,
have been alleged by the petitioner.
accident, mistake or excusable neglect, and that he has a
meritorious defense; (Sec. 3, Rule 18) b) If the judgment has
4. ID.; SPECIAL CIVIL ACTION; CERTIORARI; WHEN
already been rendered when the defendant discovered the default,
APPROPRIATE; RATIONALE. As we held in Pure Foods
but before the same has become final and executory, he may file a
Corporation v. NLRC (171 SCRA 415): It must emphatically be
motion for new trial under Section 1(a) of Rule 37; c) If the
reiterated, since so often is it overlooked, that the special civil
defendant discovered the default after the judgment has become
action for certiorari is a remedy designed for the correction of errors
final and executory, he may file a petition for relief under Section 2
of jurisdiction and not errors of judgment. The reason for the rule is
of Rule 38; and d) He may also appeal from the judgment rendered
simple. When a court exercises its jurisdiction, an error committed
against him as contrary to the evidence or to the law, even if no
while so engaged does not deprive it of the jurisdiction being
petition to set aside the order of default has been presented by him.
exercised when the error is committed. If it did, every error
committed by a court would deprive it of its jurisdiction and every
2. ID.; ID.; DEFAULTS; RELIEF FROM ORDER OF DEFAULT;
erroneous judgment would be a void judgment. This cannot be
REQUIREMENTS; NOT SATISFIED IN CASE AT BAR. A
allowed. The administration of justice would not survive such a
satisfactory showing by the movant of the existence of fraud,
rule. Consequently, an error of judgment that the court may commit
accident, mistake or excusable neglect is an indispensable
in the exercise of its jurisdiction is not correctible through the
requirement for the setting aside of a judgment of default or the
original civil action of certiorari.
order of default. After going over the pleadings of the parties and
the decision of the respondent court, we find that the motion to lift
5. ID.; ID.; ID.; NOT PROPER ABSENT SHOWING OF GRAVE
the order of default was properly denied for non-compliance with
ABUSE OF DISCRETION. Even on the supposition that
this requirement. The defendants were less than conscientious in
certiorari was an appropriate remedy, the petition would still fail
defending themselves and protecting their rights before the trial
because it has not been clearly shown that the trial court committed
court. They did not pay proper attention and respect to its directive.
grave abuse of discretion in refusing to set aside the default order
The petitioner has not shown that his and his wife's failure to attend
and the default judgment. We have held in many cases, including
the pre-trial hearing as required was due to excusable neglect, much
Pahilanga v. Luna, (164 SCRA 725) that: It is within the sound
less to fraud, accident or mistake. A meritorious defense is only one
discretion of the court to set aside an order of default and to permit
of the two conditions. Even if it be assumed for the sake of
a defendant to file his answer and to be heard on the merits even
argument that the private respondents did owe Josephine Ramnani
after the reglementary period for the filing of the answer has
P900,000, as alleged in the counterclaim, that circumstance alone is
expired, but it is not error, or an abuse of discretion, on the part of
not sufficient to justify the lifting of the order of default and the
the court to refuse to set aside its order of default and to refuse to
default judgment. The obvious reason is that a meritorious defense
accept the answer where it finds no justifiable reason for the delay
must concur with the satisfactory reason for the non-appearance of
in the filing of the answer. In motions for reconsideration of an
the defaulted party. There is no such reason in this case.
order of default, the moving party has the burden of showing such
diligence as would justify his being excused from not filing the
3. ID.; ID.; ORDINARY APPEAL; APPROPRIATE REMEDY IN
answer within the reglementary period as provided by the Rules of
CASE AT BAR; CASE OF PISC VS. HONTANOSAS, NOT
CIVIL PROCEDURE L-P FEBRUARY 9, 2016
Court, otherwise, these guidelines for an orderly and expeditious
procedure would be rendered meaningless. Unless it is shown
clearly that a party has justifiable reason for the delay the court will
not ordinarily exercise its discretion in his favor. The above
doctrine is applicable to the inexcusable neglect of the herein
petitioner and his wife to appear at the pre-trial hearing duly
scheduled and of which they were properly notified.
DECISION
CRUZ, J p:
FACTS: On March 13, 1990, the spouses Juliette Dizon and Cenen
Dizon filed a complaint in the Regional Trial Court of Makati
against the spouses Josephine Anne Ramnani and Bhagwan
Ramnani for the collection of a sum of money representing the
alleged unremitted value of jewelry received by Josephine from
Juliette on consignment basis.
Josephine Ramnani submitted an answer with counterclaim 2 in
which she alleged inter alia:
(a) That although she did receive pieces of jewelry worth
P934,347.00 from Dizon, the latter had likewise received from her
jewelries worth P1,671,842,00, including cash and unpaid checks in
the amount of P159,742.50;
(b) That she paid Dizon P50,000; and
(c) That Dizon still owes her P787,495.00;
The trial court set the case for pre-trial on August 14, 1990, 3
but the Ramnanis did not appear. Consequently, they were
declared in default. 4 On September 12, 1990, they filed a motion
to lift the order of default, but this was denied on November 20,
1990.
On October 26, 1990, conformably to the default order, evidence of
the Dizon spouses was received ex parte. On January 28, 1991,
Judge Buenaventura J. Guerrero rendered judgment against
the Ramnanis, holding them liable to the plaintiffs in the
amounts of P884,347.00, representing the principal obligation plus
legal interest thereon from March 13, 1990, until fully paid;
P100,000.00 as moral damages; and P20,000.00 as exemplary
damages. They were also required to pay P50,000.00 as attorney's
fees, and the costs of the suit.
The Ramnanis filed a motion for reconsideration on the ground that
a "personal obligation contracted by the wife without the consent of
the husband (was) being made enforceable against the spouses'
conjugal partnership despite absence of any allegation and proof
that the same redounded to the benefit of the family as required by
Article 121 of the Family Code." 7 The motion was denied on April
11, 1991.
On April 29, 1991, Bhagwan Ramnani filed a petition for
certiorari before the respondent Court of Appeals imputing error
to the trial court:
CIVIL PROCEDURE L-P
(1) in denying the motion to lift order declaring petitioner as in
default despite a clear showing of a meritorious defense;
(2) in not considering petitioner's reason for failure to attend pre-
trial as excusable neglect.
In a decision dated May 10, 1991, the Court of Appeals dismissed
the petition, holding that certiorari was not the proper remedy.
9
The respondent court said:
Petitioners alleged that the respondent court erred and committed
grave abuse of discretion and/or acted in excess of jurisdiction in
assigning its Branch Clerk of Court as the hearing commissioner for
the purpose of the ex parte reception of plaintiffs' evidence (par. 19,
Petition); that the questioned Decision failed to specify whether
defendants are solidarily or only jointly liable (par. 20, Petition);
and that petitioner had a valid and meritorious defense (par. 21,
Petition). These are matters that could very well be ventilated in
an ordinary appeal. It should be stressed that the writ of certiorari
issues for the correction of errors of jurisdiction only or grave abuse
of discretion amounting to lack or excess of jurisdiction. It cannot
be legally used for any other purpose (Silverio vs. Court of Appeals,
141 SCRA 527). Mere error of judgment cannot be a proper
subject of the special civil action for certiorari (Zapata vs.
NLRC, 175 SCRA 56). Further, it is a settled rule that certiorari
cannot be made a substitute for an perform the function of an
appeal (People vs. Cuaresma, 172 SCRA 415).
The petitioner has come to this Court to challenge that decision.
ISSUE: W/N the Court of Appeals erred in upholding the
refusal of the trial court to set aside the order of default and the
default judgment thereafter issued.
HELD: NO!
The basic rule is found in Section 2, Rule 20, viz: "A party who
fails to appear at a pre-trial conference may be non-suited or
considered as in default."
As held in Lina v. Court of Appeals, 10 the remedies available to a
defendant in the regional trial court who has been declared in
default are:
a) The defendant in default may, at any time after discovery thereof
and before judgment, file a motion, under oath, to set aside the
order of default on the ground that his failure to answer was due to
fraud, accident, mistake or excusable neglect, and that he has a
meritorious defense; (Sec. 3, Rule 18)
b) If the judgment has already been rendered when the defendant
discovered the default, but before the same has become final and
executory, he may file a motion for new trial under Section 1(a) of
Rule 37;
FEBRUARY 9, 2016
c) If the defendant discovered the default after the judgment has
become final and executory, he may file a petition for relief under
Section 2 of Rule 38; and
d) He may also appeal from the judgment rendered against him as
contrary to the evidence or to the law, even if no petition to set
aside the order of default has been presented by him. (Sec. 2, Rule
41)
The first remedy was adopted by the petitioner but his motion to lift
the order of default was denied. According to the trial court:
Defendants' non-appearance is inexcusable. It is unbelievable their
former lawyer did not explain to them the mandatory character of
their appearance. Their invocation of the deteriorating health of
defendant Josephine necessitating her trip abroad for appropriate
medical treatment, is unavailing. There is no medical certificate to
attest such illness. Besides, at the time of the hearing of the motion
on October 19, 1990, counsel for the defendants admitted that
Josephine had not yet arrived from the States, despite their
averment in their motion she would "only be back late September
or early October of this year." This only indicates her light regard
of her duty to appear in court. Moreover, the other defendant
Bhagwan Ramnani did not submit any other plausible
explanation for his absence in the pre-trial.
A satisfactory showing by the movant of the existence of fraud,
accident, mistake or excusable neglect is an indispensable
requirement for the setting aside of a judgment of default or the
order of default. After going over the pleadings of the parties and
the decision of the respondent court, we find that the motion to lift
the order of default was properly denied for non-compliance with
this requirement.
As we held in Pure Foods Corporation v. NLRC:
It must emphatically be reiterated, since so often is it
overlooked, that the special civil action for certiorari is a
remedy designed for the correction of errors of jurisdiction and
not errors of judgment. The reason for the rule is simple. When a
court exercises its jurisdiction, an error committed while so
engaged does not deprive it of the jurisdiction being exercised when
the error is committed. If it did, every error committed by a court
would deprive it of its jurisdiction and every erroneous judgment
would be a void judgment. This cannot be allowed. The
administration of justice would not survive such a rule.
Consequently, an error of judgment that the court may commit in
the exercise of its jurisdiction is not correctible through the original
civil action of certiorari.
We have held in many cases, including Pahilanga v. Luna, 13 that:
It is within the sound discretion of the court to set aside an
order of default and to permit a defendant to file his answer
and to be heard on the merits even after the reglementary
period for the filing of the answer has expired, but it is not
error, or an abuse of discretion, on the part of the court to
refuse to set aside its order of default and to refuse to accept the
answer where it finds no justifiable reason for the delay in the
filing of the answer. In motions for reconsideration of an order of
default, the moving party has the burden of showing such diligence
as would justify his being excused from not filing the answer within
the reglementary period as provided by the Rules of Court,
otherwise, these guidelines for an orderly and expeditious
procedure would be rendered meaningless. Unless it is shown
clearly that a party has justifiable reason for the delay the court will
not ordinarily exercise its discretion in his favor.

The defendants were less than conscientious in defending The above doctrine is applicable to the inexcusable neglect of the
themselves and protecting their rights before the trial court. herein petitioner and his wife to appear at the pre-trial hearing duly
They did not pay proper attention and respect to its directive. scheduled and of which they were properly notified.
The petitioner has not shown that his and his wife's failure to
attend the pre-trial hearing as required was due to excusable
neglect, much less to fraud, accident or mistake.

A meritorious defense is only one of the two conditions. Even if it

be assumed for the sake of argument that the private respondents
did owe Josephine Ramnani P900,000, as alleged in the
counterclaim, that circumstance alone is not sufficient to justify the
lifting of the order of default and the default judgment. The
obvious reason is that a meritorious defense must concur with
the satisfactory reason for the non-appearance of the defaulted
party. There is no such reason in this case.

The appropriate remedy is an ordinary appeal under Section 2

of Rule 41 of the Rules of Court providing in part as follows:

A party who has been declared in default may likewise appeal

from the judgment rendered against him as contrary to the
evidence or to the law, even if no petition for relief to set aside
the order of default has been presented by him in accordance
with Rule 38.

CIVIL PROCEDURE L-P FEBRUARY 9, 2016

G.R. No. 70895 May 30, 1986
HABALUYAS ENTERPRISES, INC. and PEDRO
HABALUYAS, petitioners,
vs.
JUDGE MAXIMO M. JAPSON, Manila Regional Trial
Court, Branch 36; SHUGO NODA & CO., LTD., and
SHUYA NODA, respondents.
FERIA, J.:
FACTS: Respondents have filed a motion for reconsideration of
the Decision of the Second Division of the Court promulgated
on August 5, 1985 which granted the petition for certiorari and
prohibition and set aside the order of respondent Judge granting
private respondents' motion for new trial.
Section 39 of The Judiciary Reorganization Act, Batas
Pambansa Blg. 129, reduced the period for appeal from final
orders or judgments of the Regional Trial Courts (formerly
Courts of First Instance) from thirty (30) to fifteen (15) days
and provides a uniform period of fifteen days for appeal
from final orders, resolutions, awards, judgments, or
decisions of any court counted from notice thereof, except in
habeas corpus cases where the period for appeal remains at
forty- eight (48) hours. To expedite appeals, only a notice of
appeal is required and a record on appeal is no longer required
except in appeals in special proceedings under Rule 109 of the
Rules of Court and in other cases wherein multiple appeals are
allowed. Section 19 of the Interim Rules provides that in these
exceptional cases, the period for appeal is thirty (30) days since
a record on appeal is required. Moreover Section 18 of the
Interim Rules provides that no appeal bond shall be required for
an appeal, and Section 4 thereof disallows a second motion for
reconsideration of a final order or judgment.
All these amendments are designed, as the decision sought to be
reconsidered rightly states, to avoid the procedural delays which
plagued the administration of justice under the Rules of Court
which are intended to assist the parties in obtaining a just,
speedy and inexpensive administration of justice.
However, the law and the Rules of Court do not expressly
prohibit the filing of a motion for extension of time to file a
motion for reconsideration of a final order or judgment.
In the case of Gibbs vs. Court, of First Instance (80 Phil. 160),
the Court dismissed the petition for certiorari and ruled that the
failure of defendant's attorney to file the petition to set aside the
judgment within the reglementary period was due to excusable
neglect, and, consequently, the record on appeal was allowed.
The Court did not rule that the motion for extension of time
to file a motion for new trial or reconsideration could not be
granted.
CIVIL PROCEDURE L-P
In the case of Roque vs. Gunigundo (Administrative Case No.
1684, March 30, 1979, 89 SCRA 178), a division of the Court
cited the Gibbs decision to support a statement that a motion to
extend the reglementary period for filing the motion for
reconsideration is not authorized or is not in order.
The Intermediate Appellate Court is sharply divided on this
issue. Appeals have been dismissed on the basis of the original
decision in this case.
ISSUE: in this case is whether the fifteen-day period within
which a party may file a motion for reconsideration of a
final order or ruling of the Regional Trial Court may be
extended.
HELD: YES (in cases pending SC)
After considering the able arguments of counsels for petitioners
and respondents, the Court resolved that the interest of
justice would be better served if the ruling in the original
decision were applied prospectively from the time herein
stated. The reason is that it would be unfair to deprive parties of
their right to appeal simply because they availed themselves of a
procedure which was not expressly prohibited or allowed by the
law or the Rules. On the other hand, a motion for new trial or
reconsideration is not a pre-requisite to an appeal, a petition
for review or a petition for review on certiorari, and since
the purpose of the amendments above referred to is to
expedite the final disposition of cases, a strict but
prospective application of the said ruling is in order. Hence,
for the guidance of Bench and Bar, the Court restates and
clarifies the rules on this point, as follows:
1.) Beginning one month after the promulgation of this
Resolution, the rule shall be strictly enforced that no motion for
extension of time to file a motion for new trial or
reconsideration may be filed with the Metropolitan or
Municipal Trial Courts, the Regional Trial Courts, and the
Intermediate Appellate Court. Such a motion may be filed
only in cases pending with the Supreme Court as the court of
last resort, which may in its sound discretion either grant or
deny the extension requested.
2.) In appeals in special proceedings under Rule 109 of the
Rules of Court and in other cases wherein multiple appeals
are allowed, a motion for extension of time to file the record
on appeal may be filed within the reglementary period of
thirty (30) days. (Moya vs. Barton, 76 Phil. 831; Heirs of
Nantes vs. Court of Appeals, July 25, 1983, 123 SCRA 753.) If
the court denies the motion for extension, the appeal must be
taken within the original period (Bello vs. Fernando, January
30, 1962, 4 SCRA 135), inasmuch as such a motion does not
suspend the period for appeal (Reyes vs. Sta. Maria, November
20, 1972, 48 SCRA 1). The trial court may grant said motion
after the expiration of the period for appeal provided it was
filed within the original period. (Valero vs. Court of Appeals,
FEBRUARY 9, 2016
June 28, 1973, 51 SCRA 467; Berkenkotter vs. Court of
Appeals, September 28, 1973, 53 SCRA 228).
All appeals heretofore timely taken, after extensions of time
were granted for the filing of a motion for new trial or
reconsideration, shall be allowed and determined on the merits.
G.R. No. L-34007 May 25, 1979
MARCELINO BELAMIDE, ALFREDO BELAMIDE
(deceased and herein substituted by his children Rodolfo,
Reynaldo, Lilian and Alfredo, Jr., all surnamed Belamide),
JOSE BELAMIDE, ANTONIO BELAMIDE, MARIA
BELAMIDE, LEONISA BELAMIDE and SALUD
BELAMIDE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and
BIENVENIDO MONTOYA, FRANCISCA MONTOYA and
GREGORIO MONTOYA, respondents.
DE CASTRO, J.:
FACTS: This is a petition for certiorari to review the decision
of the Court of Appeals (4th Division) promulgated on June 9,
1971, affirming the amended decision of the Court of First
Instance of Cavite City the dispositive portion of which reads:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, the Court hereby
adjudicates the parcel of land described in
Plan Psu-18949 situated in the poblacion of
Silang, Cavite, in favor of the applicants
(Marcelino Belamide, of legal age, Filipino,
married to Patrocinia de Castro, and resident
of Silang Cavite; Alfredo Belamide, of legal
age, Filipino, married to Anita Velez, and
resident of Silang, Cavite; Jose Belamide, of
legal age, Filipino, married to Elisea
Quiamzon and resident of Silang Cavite;
Antonio Belamide, of legal age, Filipino,
single, and resident of Silang, Cavite; Maria
Belamide, Filipino, of legal age, married to
Sofronio Bayla and resident of Silang, Cavite;
Leonisa Belamide, of legal age, married to
Fulgencio Reyes, and resident of Silang,
Cavite; and Salud Bede of legal age, Filipino,
married to Conrado Menchavez and resident
of Silang, Cavite) and the oppositors
(Bienvenido Montoya, Gregorio Montoya and
Francisco Montoya, Filipinos, of legal age,
married and residents of Silang, Cavite) in the
following proportions:
Three-fourths (3/4) undivided share
belongs to the applicants, and one-fourth
(1/4) undivided share belongs to the
oppositors.
Petitioners herein were the applicants for the registration of
the parcel of land involved in this case The private
CIVIL PROCEDURE L-P
WHEREFORE, the motion for reconsideration of, and to set
aside, the decision of August 5, 1985 is granted and the petition
is dismissed. No costs.
respondents were the oppositors allowed on Motion for a
New Trial, to file an opposition even after a decision has
already been rendered by then Judge Felix V. Makasiar,
after hearing, following the issuance of a general default
order.
From the amended decision rendered after the new trial both
parties appealed to the Court of Appeals which found the
essential facts as narrated in the decision appealed thereto as
duly established by the evidence, and quoted the same
approvingly as follows:
The next question that presents itself is when
and by whom was the land in question
acquired. The oppositors allege that the
acquisition was made during the first marriage
of Vicente Montoya to Martin Montoya,
whereas the applicants maintain that such land
was acquired during the marriage (second
marriage) of Vicente Montoya to Jose Velardo
Both contentions are not supported by any
document. However, the fact that Susana
Velardo Belamide sold a portion of the land in
question (Exh. 6) to the Municipality of
Silang, Cavite (for widening of the street) on
May 1933 without the intervention of, or
opposition from, Hilarion Montoya who died
on December 2, 1955 (Exh. 3), coupled with
the fact that Susana Velardo Belamide has
possession of the property since the death of
her mother Vicenta Montoya) in 1931 after
she sold the same to the herein applicants on
July 20, 1951 (Exh. B), convince the Court
that said property was acquired during the
coverture of Jose Velardo and Vicenta
Montoya. Consequently, upon the death of
Jose Velardo in 1888, the one-half ()
undivided portion of the property passed by
inheritance to Susana Velardo Belamide and
the other one-half () undivided portion went
to Vicenta Montoya as her share of the
conjugal estate. Upon the death of the latter on
February 28, 1931, her undivided one half ()
share of the property should be divided
equally between Susana Velardo Belamide and
Hilarion Montoya, that is, each is entitled to
one- fourth (1/4) undivided share. Hence,
Susana Velardo Belamide's share is three-
fourths (3/4) while Hilarion Montoya's share
passed by inheritance to his children, the
herein oppositor. For this reason, the sale
made by Susana Velardo Belamide in favor of
the applicants (Exh. B) is null and void only
with respect to the one-fourth (1/4) undivided
FEBRUARY 9, 2016
 portion of the property (the share of the herein
oppositors) who did not consent to the sale).
As earlier stated, the Court of Appeals affirmed the amended
decision of the Court of First Instance, this time rendered by
Hon. Jose P. Alejandro, and denied a Motion for
Reconsideration filed by the petitioners herein on June 29,
1971, as well as a Motion for a New Trial. The ground for the
Motion for New Trial was that Exhibit 8 of the oppositors
(private respondents herein) which was allegedly relied upon by
both the Court of First Instance and the Court of Appeals is a
falsified document, As recited in the petition, par. 12 thereof, the
falsification consists of the following:
According to tie official records of the Civil
Registrar of Silang, Cavite, the name of the
father of Hilarion Montoya in the marriage
column is in blank. But according to Exhibit
8, the name of the father of Hilarion Montoya
is Martin Montoya. Thus, whale the official
record of the civil registrar shows that
oppositors' father, Hilarion, had an unknown
father, thru falsification, Hilarion father
wasmade to appear in Exhibit 8 as Martin
Montoya. The latter false. ly became husband
of Vicente Montoya, thereby enabling private
respondents to inherit 1/4 of the land in
dispute from Vicente Montoya.
It is the denial of the Motion for New Trial by the
Court of Appeals which petitioners allege to be in grave
abuse of discretion, and their allegation that the Court of
First Instance, as a land registration court, has no
jurisdiction to declare who are the heirs of Vicente Montoya
and partition the property by adjudicating 1/4 pro-indiviso
to private respondents as children of Hilarion Montoya,
allegedly an unacknowledged natural child of Vicenta
Montoya, and that as a consequence, the Court of Appeals,
likewise, is without jurisdiction, or acted in grave abuse of
discretion, in affirming the decision of the lower court
that petitioners came to this Court with the present
petition.
ISSUE: W/N CA committed grave abuse of discretion in
denying petitioner's MOtion for New Trial?
HELD: NO! There can be no grave abuse of discretion by
the Court of Appeals in denying petitioners' Motion for New
Trial.
The document alleged to be falsified was presented in the trial in
the lower court. Petitioners should have attacked the same as
falsified with competent evidence, which could have been
presented, if they had exercised due diligence in obtaining said
evidence, which is Annex "A" 1 to the Motion for New Trial. 2 It
is, therefore, not a newly discovered evidence that could
justify a new trial (Rule 37 [1-b], Rules of Court).
CIVIL PROCEDURE L-P
The new evidence would neither change the result as found by
the decision. It might prove that Hilarion Montoya was
registered at birth without his father having been given, but from
the testimony of Marcelino Belamide, one of the applicants
(now petitioners), Vicente Montoya was married twice, although
he did not know the first husband. Likewise, in the opposition of
private respondents , it is there alleged that the land originally
belonged to the spouses Martin Montoya and Vicente
Montoya. This allegation was never contradicted. The document
sought to be presented by petitioners, as stated in their Motion
for New Trial in the Court of Appeals, cannot effectively destroy
this allegation, first, because the marriage between Martin
Montoya and Vicenta Montoya could have taken place after the
birth of Hilarion Montoya who was thus legitimized, and
second, Martin Montoya and Vicente Montoya evidently lived
together as husband and wife, and are, therefore, presumed to
have been legally married (Section 5, par. [bb] Rule 131, Rules
of Court). This Court held that a man and a woman who are
living under the same roof are presumed to be legitimate
spouses (Que Quay vs. Collector of Customs, 33 Phil. 128), and
in the instant case, no less than one of the herein petitioners,
Marcelino Belamide, testified that Vicenta Montoya married
twice. The records suggest no other husband by the first
marriage than Martin Montoya, who then could have been the
father of Hilarion Montoya who, undisputedly, is the son of
Vicente Montoya.
With the law and the evidence showing with reasonable
sufficiency that Hilarion Montoya from whom private
respondents would derive hereditary rights over the land in
question, is the legitimate son of Vicenta Montoya, the
adjudication of said land by the lower court, as specified in its
decision, is in accordance with law.
2. The jurisdiction of the lower court as a land registration
court to adjudicate the land for purposes of registration
cannot, as petitioners try to do, be questioned. The applicants
and oppositors both claim rights to the land by virtue of their
relationship to the original owner, the late Vicente Montoya. The
Court is thus necessary impelled to determine the truth of their
alleged relationship, and on the basis thereof, to adjudicate the
land to them as the law has prescribed to be their successional
rights. The law does not require the heirs to go to the probate
court first before applying for the registration of the land, for a
declaration of heirship. This would be a very cumbersome
procedure, unnecessarily expensive and unreasonably
inconvenient, clearly averse to the rule against multiplicity of
suits.
Furthermore, petitioners Should not now be heard to complain
after they have themselves gone to the lower court to have their
title to the land registered in their names without having had a
previous declaration of their heirship by the probate court. In
filing their opposition to the application, private respondents
merely went to the same court invoking its jurisdiction in
exactly the same fashion as did the petitioners. In effect, there
was unanimity among the parties in consenting to, or
acquiescing in, the exercise of the jurisdiction of the land
registration court, no matter whether Same is a limited one. With
this premise, and with the full opportunity given both parties to
air their sides with the presentation of all evidence as they may
FEBRUARY 9, 2016
desire in support thereof, as fully as could be done in the
ordinary court with general jurisdiction, the decision of the
lower court, sitting as a land court, supported as it is with
G.R. No. 112795 June 27, 1994
AUGUSTO CAPUZ, petitioner,
vs.
THE COURT OF APPEALS and ERNESTO
BANEZ, respondents.
QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of
the Revised Rules of Court to reverse and set aside the
decision of the Court of Appeals in CA-G.R. SP No.
30030, which affirmed the judgment by default of the
Regional Trial Court, Branch 130, Kalookan City in Civil
Case No. C-15501.
FACTS: On July 15, 1992, private respondent filed a
complaint for a sum of money against petitioner with the
Regional Trial Court, Branch 130, Kalookan City.
petitioner was served with summons.
After petitioner failed to file any answer, private
respondent filed on September 25, an Ex parte Motion to
Declare Defendant in Default. which the trial court issued
an order declaring petitioner in default and authorizing
private respondent to present his evidence ex parte. On
October 28, private respondent presented his evidence ex
parte.
the trial court rendered a decision in favor of
the plaintiff ERNESTO BANEZ, against the defendant
AUGUSTO CAPUZ ordering the defendant to pay the
following:
1. The principal amount of P90,000.00
plus 12% interest per annum from June 13, 1992,
the date of the written demand, until fully paid;
2. P10,000.00 as attorney's fees;
3. P1,000.00 as litigation expenses and the
costs (Rollo, p. 11).
petitioner filed a verified motion to lift the order of default
and to set aside the decision.
In said motion, petitioner averred that:
CIVIL PROCEDURE L-P
sufficient evidence, may no longer be questioned on
jurisdictional grounds. For all the foregoing, the instant petition
is hereby dismissed for lack of merit. Costs against petitioners.
1. Defendant's failure to file his
responsive pleading is due to fraud,
mistake, accident and/or excusable
neglect, and that when defendant received
a copy of the summons and the complaint
on September 5, 1992, defendant wasted
no time in seeing the plaintiff and
confronted him about his receipt (payment
of the subject obligation), plaintiff assured
the defendant that he (plaintiff) will
instruct his lawyer to withdraw the
complaint, and not to worry anymore.
Defendant took the word of his
"compadre" the plaintiff. Hence,
defendant did not file his answer to the
complaint (Rollo, p. 11).
On December 7, the trial court issued an order,
denying petitioner's verified urgent motion, the
pertinent portion
The filing of the motion to lift order of
default did not stop the running of the
period of appeal, for his only right at
the moment is to receive notice of
further proceedings regardless of
whether the order of default is set aside
or not. On the other hand, defendant
could have appealed the Decision
before the expiration of the period to
appeal, for he is granted that right by
the Rules. Since he failed to make a
timely appeal, the decision rendered in
this case has became final.
On December 23, petitioner filed an urgent motion
asking for the reconsideration of the Order dated
December 7, 1992, claiming: (1) that the said order was
prematurely issued; (2) that the trial court erred in holding
that the decision had become final; and (3) that the said
order was contrary to law and jurisprudence. Which the
trial court issued an order, denying petitioner's motion for
reconsideration.
Petitioner filed a petition for certiorari under Rule 65
of the Revised Rules of Court with the Court of
Appeals. Which the Court of Appeals dismissed the
petition for lack of merit, holding: (1) that petitioner's
FEBRUARY 9, 2016
motion to lift the order of default and set aside the
judgment was improper because there was already a
judgment by default rendered when it was filed; (2) that
having discovered the order of default after the rendition
of the judgment, the remedy of petitioner was either to
appeal the decision or file a motion for new trial under
Rule 37; and (3) that the said motion could not be
considered as a motion for new trial under Rule 37
because it was not accompanied by an affidavit of merit.
In the instant petition, petitioner argues that the
motion to lift the order of default and to set aside the
decision could be treated as a motion for new trial
under Rule 37 and that a separate affidavit of merit
need not be submitted considering that the said motion
was verified.
ISSUE: W/N the verified motion of petitioner could be
considered as a motion for new trial?
HELD: YES. We agree that the verified motion of
petitioner could be considered as a motion for new
trial.
The grounds alleged by petitioner in his motion are the
same as the grounds for a motion for new trial under Rule
37, which are: (1) that petitioner's failure to file his answer
was due to fraud, mistake, accident or excusable
negligence; and (2) that he was a meritorious defense.
Petitioner explained that upon receiving the summons, he
immediately saw private respondent and confronted him
with the receipt evidencing his payment. Thereupon,
private respondent assured him that he would instruct his
lawyer to withdraw the complaint. The prior payment of
the loan sought to be collected by private respondent is a
good defense to the complaint to collect the same loan
again.
The only reason why respondent court did not consider the
motion of petitioner as a motion for new trial was because
the said motion did not include an affidavit of merit.
The allegations contained in an affidavit of merit required
to be attached to a motion to lift an order of default or for
a new trial need not be embodied in a separate document
but may be incorporated in the petition itself. As held
in Tanhu v. Ramolete, 66 SCRA 425 (1975):
CIVIL PROCEDURE L-P
Stated otherwise, when a motion to lift an
order of default contains the reasons for
the failure to answer as well as the facts
constituting the prospective defense of the
defendant and it is sworn to by said
defendant, neither a formal verification
nor a separate affidavit of merit is
necessary.
Speaking for the Court in Circle Financial Corporation
v. Court of Appeals, 196 SCRA 166 (1991), Chief Justice
Andres R. Narvasa opined that the affidavit of merit may
either be drawn up as a separate document and appended
to the motion for new trial or the facts which should
otherwise be set out in said separate document may, with
equal effect, be alleged in the verified motion itself.
Respondent court erred when it held that petitioner
should have appealed from the decision, instead of
filing the motion to lift the order of default, because he
still had two days left within which to appeal when he
filed the said motion. Said court must have in mind
paragraph 3 of Section 2, Rule 41 of the Revised Rules of
Court, which provides that: "a party who has been
declared in default may likewise appeal from the judgment
rendered against him as contrary to the evidence or to the
law, even if no petition for relief to set aside the order of
default has been presented by him in accordance with Rule
38."
Petitioner properly availed of the remedy provided for
in Section 1, Rule 65 of the Revised Rules of Court
because the appeal under Section 2, Rule 41 was not,
under the circumstances, a "plain, speedy and
adequate remedy in the ordinary course of law." In an
appeal under Section 2, Rule 41, the party in default can
only question the decision in the light of the evidence on
record. In other words, he cannot adduce his own
evidence, like the receipt to prove payment by petitioner
herein of his obligation to private respondent.
WHEREFORE, the petition is GRANTED. The
challenged decision of the Court of Appeals is
REVERSED and the judgment dated November 6, 1992 of
the Regional Trial Court, Branch 130, Kalookan City is
SET ASIDE. Let this case be remanded to the court of
origin for further proceedings. No pronouncements as to
costs.
FEBRUARY 9, 2016
G.R. No. L-48859 November 8, 1942

EMILIANO J. VALDEZ, petitioner,

vs.
FERNANDO JUGO, Judge of First Instance of Manila, ET AL., respondents.

MORAN, J.:

1. APPEAL AND ERROR; "PRO-FORMA" MOTION FOR NEW TRIAL IS OFFENSIVE TO NEW RULES OF COURT AND
DOES NOT INTERRUPT PERIOD FOR APPEAL; NECESSITY OF SPECIFICALLY SETTING OUT REASONS IN SUPPORT
OF MOTION OF NEW TRIAL. Petitioner's motion for new trial did not and could not interrupt the period for appeal, it having
failed to state in detail as required by the rules, the reasons in support of the grounds alleged therein. Under Rule 37, section 2, third
paragraph, it is now required to "point out specifically the findings or conclusions of the judgment which are not supported by the
evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of
law alleged to be contrary to such findings or conclusions." And when, as in the instant case, the motion fails to make the specification
thus required, it will be treated as a motion pro-forma intended merely to delay the proceedings, and as such, it shall be stricken out as
offensive to the new rules.

2. ID.; ID.; ID.; DELIBERATE ATTEMPT TO DELAY PROCEEDINGS. Petitioner's case justifies indeed the full rigor of the new
rules, there being circumstances showing a deliberate attempt on his part to delay the proceedings for his own convenience. He filed
his motion for new trial on November 22, 1941, and set it for hearing almost one month thereafter, i. e., on December 20, 1941. The
reason he gave in his oral argument to justify such delayed hearing was that he wanted to have time to study the transcript of the
testimony of witnesses and find out reasons in support of the grounds alleged in his motion. Unquestionably, therefore, he filed his
motion without knowing whether the grounds therefor were or were not good, and wanted to delay the proceedings to gain time for
study. Again, asked as to why, when he was already in Manila and the Manila courts were already open, he failed to inquire as to the
result of his motion for new trial, he candidly answered that he was not interested in speeding up the proceedings because he was the
defeated party. With such an attitude this Court cannot be moved to grant an equitable relief.

CIVIL PROCEDURE L-P FEBRUARY 9, 2016

 G.R. No. 110801 December 8, 1995

MARIKINA VALLEY DEVELOPMENT CORPORATION, ISIDORO LIAMZON, JR., SPS. BERNARDO

AND DELIA ROSARIO, SPS. MANUEL AND NORMA SANCHEZ, SPS. RUFINO AND MILAGROS
JAVIER, SPS. RODOLFO AND SONIA OCAMPO, SPS. LAZARO AND JULIETA SANTOS, SPS.
TEODORO AND ZENAIDA BAUTISTA, SPS. CHARLES AND MA. CORAZON MILLER, SPS.
EDGARDO AND CRISTINA VALENZUELA, FRANCISCO LIAMZON, MARIETTA LIAMZON, ROMEO
THADEUS LIAMZON, MICHAEL RAYMOND LIAMZON, ROBERTO ANTONIO LIAMZON,
ROSABELLE THERESA LIAMZON, RONALDO ISIDORO LIAMZON and RODRIGO JESUS
LIAMZON, petitioners,
vs.
HON. NAPOLEON R. FLOJO, Presiding Judge of Branch 2, RTC Manila; BASILIO SYTANGCO, as
representative of the heirs of JOSE REYES SYTANGCO; and THE HON. COURT OF
APPEALS, respondents.

FELICIANO, J.:

FACTS: Jose Reyes Sytangco instituted a complaint for reconveyance of a piece of land situated along Espaa
Street, Manila, against petitioner Marikina Valley Development Corporation ("Marikina Valley") and Milagros
Liamzon. In his complaint, Jose Reyes Sytangco alleged that he and his wife, Aurelia Liamzon-Sytangco had
entrusted some funds to Milagros Liamzon, sister-in-law of Aurelia, in order to purchase the Espaa Street property
from its former owners. The Sytangco spouses had years ago built their house on that parcel of land then leased from
the original owners with whom they negotiated for purchase of that land. Milagros Liamzon, however, in alleged
violation of the trust reposed upon her, purchased the Espaa Street property in her own name and had title
to the same registered in her name. Thereafter, she transferred title over that property to petitioner Marikina
Valley, a closed corporation owned by the Liamzon family.

In their answer, petitioner denied the allegations of Jose Reyes Sytangco and claimed that Milagros Liamzon had
purchased the Espaa Street property by and for herself, with funds coming from petitioner Marikina Valley. For her
part, Milagros Liamzon insisted, among other things, that the Reyes Sytangco spouses had waived in her favor their
right to buy the property in question.

During the trial in the court below, Jose Reyes Sytangco died and he was substituted by his heirs, who are private
respondents herein. After trial, the trial court ruled in favor of private respondent heirs and directed petitioner
Marikina Valley to execute a Deed of Conveyance covering the property involved in favor of private
respondents.

On 28 October 1991, Marikina Valley and the other petitioners heirs of Milagros Liamzon (Milagros having, in
the meantime, passed away) received a copy of the decision of the trial court. Petitioners moved for
reconsideration on 7 November 1991.

The Reyes Sytangco heirs opposed petitioners' motion for reconsideration upon the ground that it was a pro
forma one. The heirs contended that the allegations of insufficiency of evidence were couched in very general
terms, contrary to the requirements of Section 2, Rule 37 of the Rules of Court.

The trial court denied petitioners' motion for reconsideration for lack of merit.

Petitioners received a copy of the above order and they filed a notice of appeal with the trial court.

In the meantime, private respondent heirs moved for execution of the decision of 11 October 1991. They insisted
that petitioners had failed to perfect an appeal within the reglementary period.
CIVIL PROCEDURE L-P FEBRUARY 9, 2016
 The trial court dismissed the notice of appeal filed by petitioners for having been filed beyond the
reglementary period to perfect an appeal. The trial judge reasoned that petitioners' motion for
reconsideration was pro forma and hence did not stop the running of the reglementary period. Thereupon, the
trial judge granted private respondents' motions for execution.

Petitioners went to the Court of Appeals on certiorari and injunction. They denied that their motion for
reconsideration was merely pro forma and claimed that they had filed their notice of appeal seasonably. They also
challenged the validity of subsequent orders of the trial court directing execution.

The Court of Appeals dismissed the petition, declaring that petitioners' motion for reconsideration
was indeed pro forma and, "therefore, clearly without merit."

HENCE THIS PRESENT PETITION

ISSUE: W/N the motion for reconsideration filed by the petitioners was sufficient in form and substance and
was not pro forma that interrupts the cunning of the period to perfect an appeal?

HELD: YES.

The rule in our jurisdiction is that a party aggrieved by a decision of a trial court may move to set aside the decision
and reconsideration thereof may be granted when (a) the judgment had awarded "excessive damages;" (b) there was
"insufficiency of the evidence to justify the decision;" or (c) "the decision was against the law." 2

A motion for reconsideration based on ground (b) or (c) above must

point out specifically the findings and conclusions of the judgment which are not supported by the
evidence or which are contrary to law, making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to such findings and conclusions. 3

A motion for reconsideration, when sufficient in form and substance that is, when it satisfies the
requirements of Rule 37 of the Rules of Court interrupts the cunning of the period to perfect an appeal. 4 A
motion for reconsideration that does not comply with those requirements will, upon the other hand, be treated as pro
forma intended merely to delay the proceedings and as such, the motion will not stay or suspend the reglementary
period. 5 The net result will be dismissal of the appeal for having been unseasonably filed.

The question in every case is, therefore, whether a motion for reconsideration is properly regarded as having
satisfied the requirements, noted above, of Rule 37 of the Rules of Court. As already pointed out, the Court of
Appeals took the position that where a motion for reconsideration merely "reiterates" or "repleads" the same
arguments which had been previously considered and resolved in the decision sought to be reconsidered, the motion
is a pro forma one.

It should, however, be noted that the circumstance that a motion for reconsideration deals
with the same issues and arguments posed and resolved by the trial court in its decision does
not necessarily mean that the motion must be characterized as merely pro forma.

The movant is very often confined to the amplification or further discussion of the same issues already
passed upon by the trial court. Otherwise, his remedy would not be a reconsideration of the decision, but a
new trial or some other remedy. 9

A motion for reconsideration which is not as starkly bare as in Crisostomo and in Villarica, but which, as it were,
has some flesh on its bones, may nevertheless be rendered pro forma where the movant fails to make reference to
the testimonial and documentary evidence on record or the provisions of law said to be contrary to the trial court's
conclusions. In other words, the movant is also required to point out succinctly why reconsideration is warranted.
In Luzon Stevedoring Company v. Court of Industrial Relations, 12 the Supreme Court declared that:

it is not enough that a motion for reconsideration should state what part of the decision is contrary
to law or the evidence; it should also point out why it is so. Failure to explain why will render the
motion for reconsideration pro forma. (Emphasis supplied)

CIVIL PROCEDURE L-P FEBRUARY 9, 2016

 Where a substantial bonafide effort is made to explain where and why the trial court should be regarded as
having erred in its main decision, the fact that the trial court thereafter found such argument unmeritorious
or as inadequate to warrant modification or reversal of the main decision, does not, of course, mean that the
motion for reconsideration should have been regarded, or was properly regarded, as merely pro forma.

It is important to note that the above case law rests upon the principle that a motion for reconsideration which fails
to comply with the requirements of Sections 1 (c) and 2 of Rule 37 of the Rules of Court, and is therefore pro
forma merely, has no other purpose than to gain time. It is intended to delay or impede the progress of proceedings
and the rule that such motion for reconsideration does not stop the period of appeal from "slipping away" reflects
both poetic and substantial justice. In Estrada, et al. v. Sto. Domingo, et al., 13 the Court underlined.

We turn then to the application of the above standards to the motion for reconsideration in the case at bar.
The text of petitioners' motion for reconsideration dated 7 November 1991 is quoted below:

(a) There [was] no sufficient evidence introduced to prove the alleged fact that the down-payment
for the property in question came from Jose Sytangco. Private transactions are presumed to be fair
and regular (citations omitted). The regularity of defendant Liamzon's transaction with the Prietos
for the sale of the property implies that the consideration came from her and not from plaintiff.
This presumption cannot be rebutted by the bare testimony of abiased witness;

(b) The money used to pay for the property not belonging to the plaintiff, there could never be a
trust between him and defendant Liamzon. Even then, plaintiff merely claimed that what belong to
him was only the down-payment, not the total amount used to purchase the property, that the
defendant Liamzon was the one paying the installments can be gleaned from the fact that while
plaintiff allegedly authorized defendant Liamzon to purchase the property sometime in 1968, it
was only in 1981 that he came to know that the property was titled in the name of defendant
corporation. Plaintiff's (Jose Reyes Sytangco) total lack of knowledge about the transactions
regarding the property for 13 long years, meant that he had no contract with the Prietos, the seller
during this period. Assuming without admitting that the down-payment belonged to plaintiff, he is
only entitled to reimbursement but not title to the property;

(c) Piercing the veil of corporate fiction applies only to cases where the corporation was created
for purposes of fraud, usually in tax cases; fraud, however, being the exception rather than the rule
should be proven by convincing evidences. That defendant Liamzon is a director of defendant
Corporation is not indicative of fraud. The money used to buy the property being advances from
defendant corporation, there is nothing wrong to have said property be titled in the name of the
corporation to offset said advances;

(d) It may be mentioned that the ejectment counterpart of this case had already been decided with
finality in favor of defendant corporation. 20

In paragraph (a) of their motion, petitioners claimed that the evidence submitted was insufficient to show that the
downpayment for the purchase of the Espaa Street property had in fact come from private respondents'
predecessor-in-interest Jose Reyes Sytangco. In effect, petitioners here aver that the presumption of regularity of
private transactions carried out in the ordinary course of business had not been overturned by the testimony of Jose
Reyes Sytangco himself. This reflected petitioners' appraisal of the trial court's conclusion that Jose and Aurelia
Reyes Sytangco had handed over to Milagros Liamzon the amount of P41,000.00 to complete the downpayment of
the Reyes Sytangco spouses on the Espaa lot. The trial court had not discussed the presumption of regularity of
private transactions invoked by petitioners.

In paragraph (b) of their motion, petitioners, building upon their paragraph (a), argued that since the money used to
pay the property did not belong to the plaintiff, no constructive trust arose between Jose Reyes Sytangco and
Milagros Liamzon. Petitioners further argue that assuming that the money for the downpayment had really come
from the Reyes Sytangco spouses, the rest of the payments on the Espaa property had been made by Milagros
Liamzon. Accordingly, they argue that the Reyes Sytangco spouses would be entitled only to reimbursement of the
downpayment and not to reconveyance of the property itself. The trial court had not addressed this argument in its
decision; the trial judge had found Milagros Liamzon's testimony concerning whose money had been used in the
purchase of the lot as "filled with contradictions" which seriously impaired her credibility. 21

CIVIL PROCEDURE L-P FEBRUARY 9, 2016

 The third argument of petitioners in their motion assailed the reliance of the trial court upon the doctrine of piercing
the corporate veil by asserting that that doctrine was available only in cases where the corporation itselfhad been
created for purposes of fraud. Implicitly, petitioners argue that no evidence had been submitted to show that
Marikina Valley had been created precisely "for purposes of fraud." The trial court had not touched on this
argument. In paragraph (d) of their motion, petitioners aver that the ejectment suit instituted by them had been
decided in their favor. The trial court's decision had not mentioned such an ejectment suit.

We are, therefore, unable to characterize the motion for reconsideration filed by petitioners as simply pro
forma. That motion for reconsideration, it may be noted, had been filed no more than ten (10) days after
receipt of the trial court's decision by petitioner Marikina Valley.

It is scarcely necessary to add that our conclusion that petitioners' motion was not pro forma, should not be regarded
as implying however indirectly that that motion was meritorious.

We note finally that because the doctrine relating to pro forma motions for reconsideration impacts upon the
reality and substance of the statutory right of appeal, that doctrine should be applied reasonably, rather than
literally. The right to appeal, where it exists, is an important and valuable right. Public policy would be better
served by according the appellate court an effective opportunity to review the decision of the trial court on
the merits, rather than by aborting the right to appeal by a literal application of the procedural rule relating
to pro forma motions for reconsideration.

EPIFANIO L. CASOLITA, SR., ARTHUR

AQUINO, BENITO GATPATAN, JR., HENRY
RELOSA, EDGAR LA TORRE, BERNARDO
OCAG and CECILIA VIERNES, petitioners,
vs.
THE COURT OF APPEALS, THE REGIONAL
TRIAL COURT OF MANILA, NATIONAL
CAPITAL REGION, BRANCH 34, Presided by
Judge Romulo A. Lopez, and ATROP,
INC. respondents.

FACTS: Private respondent ATROP, INC., a domestic

corporation, filed a complaint against herein petitioners
with the Regional Trial Court of Manila, for recovery
of possession of a parcel of land located at #731
Magallanes cor. Victoria Street, Intramuros, Manila,
ATROP, INC. claimed ownership, in fee simple, of said
parcel of land under TCT No. 68927 of the Registry of
G.R. No. 115703 July 8, 1997
Deeds of Manila. 1 In answer thereto, petitioner
Casolita through his counsel, Atty. Jose L. Aguilar,
CIVIL PROCEDURE L-P FEBRUARY 9, 2016
 alleged that he and his family had been in continuous
possession of the land since 1953, having been
designated as caretaker by the supposed "real owners"
Ramon LeQuina and Poria Pueo. The other petitioners,
represented by Atty. Benito Gatpatan, Jr. filed their
answer unequivocally adopting and incorporating the
allegations of Casolita in his answer to the complaint.
They further asserted that they were not "squatters" on
the land as they occupied the same in open, public,
adverse and continuous possession for more than ten
years invoking Article 1134 of the Civil Code in
relation to the existing land reform code. Thereafter,
trial ensued. On August 5, 1993, the lower
court 2 rendered a decision 3 in favor of ATROP, INC.,
ordering the defendants to vacate the premises, to
remove the structures they built, and to pay
compensation for the use of the land, attorney's fees
and costs. Atty. Aguilar received a copy of the decision
but failed to file a notice of appeal. On the other hand,
Atty. Gatpatan Jr. filed a notice of appeal on August 23,
1993.
In its omnibus motion to dismiss the appeal and for the
issuance of a writ of execution, dated September 29,
1993, ATROP INC., argued that as far as petitioner
Casolita was concerned, the decision had become final
and executory for his counsel, Atty Aguilar, received a
copy thereof without filing a notice of appeal. As to the
other petitioners, ATROP INC., observed that while
they timely filed the notice of appeal the notice was
fatally defective for they did not serve the same to the
counsel of ATROP, INC. In its October 18, 1993 Order,
the lower court 4granted the omnibus motion to dismiss
and ordered the issuance of a writ of execution. 5
Atty. Alfredo C. Baylon, Jr. thereafter filed a notice of
appearance as "counsel for all the defendants" 6 and
moved for reconsideration of the October 18, 1993
Order alleging that the dismissal of the notice of appeal
and the issuance of the writ of execution ". . . is
repugnant to the principle of due process" as it
amounted to denial of justice, citing Alonzo
vs.Villamor. 7 He contended that petitioners Casolita, et.
al., were not properly notified of the August 5, 1993,
decision since Atty. Aguilar had withdrawn as counsel
"due to poor health"; hence, the decision had not
become final and executory. As a last ditch effort, said
counsel, for the first time, alleged that the issuance of
the writ of execution ". . . would be violative of Article
VII of the Urban Development and Housing Act of
1992, particularly Section 28, paragraph 2 thereof,"
without, however, elaborating why. On November 10,
1993, the lower court denied the motion for
reconsideration and the motion to admit appeal. Thus:
There are two Notices of Appeal submitted by
two different lawyers without particularizing
which among the defendants they represent.
The Notice submitted by Atty. Gatpatan, Jr.,
was received on August 23, 1993 and records
show that Atty. Gatpatan, Jr., received the
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copy of the decision on August 17, 1993,
hence, well within the period of fifteen-day to
interpose an Appeal. Said lawyer represented
at the trial the following defendants: himself,
Arthur Aquino, Carlito Santosm, Henry
Relosa, Edgar La Torre, Bernardo Ocag and
Cecilla Vienes, leaving defendant Epifanio
Casolita who was represented by
Atty. Aguilar. Another Notice of Appeal was
filed by a certain Atty. Alfredo C. Bayhon, Jr.
[should be Baylon], who at the trial was not a
counsel of records for any defendant. Atty.
Bayhon, Jr. formally appeared only, per his
appearance received by this Court on
November 3, 1993, long after the lapse of
fifteen-day period to Appeal, computed from
the time Atty. Aguilar received a copy of the
decision on August 25, 1993. This Court
presupposes that Atty. Bayhyon, Jr. represents
the defendant Casolita only. The records,
however, does not show that Atty. Aguilar
ever withdrew from the case, hence, the
appearance of Atty. Bayhon, Jr. is improper
and cannot be recognized by this Court, there
being no showing that Atty. Aguilar withdrew
from the case.
When the plaintiff [herein private respondent]
submitted a Motion to Dismiss Appeal and for Issuance
of a Writ of Execution on the ground that the Notice of
Appeal is defective not having been served either on
plaintiff or its counsel, no opposition was filed. That
was why the Court granted the motion and issued the
Writ prayed for.
The records show likewise, that Atty. Bayhon,
Jr. submitted a Motion for Reconsideration of
the Order of this Court dismissing the Appeal
of Atty. Gatpatan, Jr., and granting
execution. The motion for reconsideration
deserves scant consideration, because the
lawyer who filed it has no personality in the
case. Moreover, the notice to the adverse
counsel of the Notice of Appeal is a
mandatory requirement for perfecting an
Appeal.
WHEREFORE, there being no merit to the
motion, the same is hereby denied, and this
denials is final.
The Motion to Admit Appeal filed by Atty.
Bayhon, Jr. is denied likewise.
A notice to vacate the premises having been made, the
petitioners through Atty. Baylon filed before
respondent Court of Appeals a petition via Rule 65 of
the Rules of Court and Section 9 of Batas Pambansa
Blg. 129 seeking the annulment of the October 18,
1993 and November 10, 1993 Orders of the lower
FEBRUARY 9, 2016
 court. 9 On May 27, 1994, the Court of Appeals
dismissed the petition. Hence, this petition.
ISSUE: W/N the Court of Appeals "committed
grave abuse of discretion tantamount to lack of
jurisdiction" in denying the petition
for certiorari based on their failure to furnish
private respondent with a copy of the notice of
appeal?
HELD: NO! The contention lacks merit.
It is a settled rule that a lawyer may not simply
withdraw his appearance in a case without a formal
petition filed in the case. Substitution of counsel must
be made in accordance with Rule 138 of the Rules of
Court, to wit:
Sec. 26. Change of Attorneys. An attorney
may retire at any time from any action or
special proceeding, by the written consent of
his client filed in court. He may also retire at
any time from an action or special proceeding,
without the consent of the client, should the
court, on notice to the client and attorney, and
on hearing, determine that he ought to be
allowed to retire. In case of substitution, the
name of the attorney newly employed shall be
entered on the docket of the court in place of
the former one, and written notice of the
change shall be given to the adverse party. . . .
There having no proper substitution of counsel,
Atty. Baylon, as correctly noted by the lower court,
has no personality in the case.
Procedural rules, we reiterate, are tools
designed to facilitate the adjudication of cases.
While the Court, in some instances, allows a
relaxation in the application of the rules, this,
we stress, was never intended to forge a
bastion for erring litigants to violate the rules
with impunity. The liberality in the
interpretation and application of the rules
applies only in proper cases and under
justifiable causes and circumstances. While it
is true that litigation is not a game of
technicalities, it is equally true that every case
must be prosecuted in accordance with the
prescribed procedure to insure an orderly and
speedy administration of justice. The instant
case is no exception to this rule. 15
As regards petitioner's residual contention that the
decision of the lower court and the notice to vacate
contravened the provisions of Republic Act No. 7279,
otherwise known as the Urban Development and
Housing Act of 1992, which petitioners addressed for
the first time in their memorandum, the same does not
deserve serious consideration. It is a rule that issues not
properly brought and ventilated below may not be
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raised for the first time on appeal 16, save in exceptional
circumstances none of which however, obtain in this
case.
WHEREFORE, the instant petition is hereby
DENIED.
G.R. No. 140473 January 28, 2003
MELBA MONCAL ENRIQUEZ, petitioner,
vs.
HON. COURT OF APPEALS and VICTORINA
TIGLE, respondents
FACTS: On February 29, 1996, herein respondent Victorina
Tigle filed an action for unlawful detainer against herein
petitioner Melba Moncal Enriquez before the MCTC of
Bayawan-Basay, Negros Oriental. Tigle's complaint, which
was docketed as Civil Case No. 1062, alleged inter alia, that
on December 14, 1994, she bought a parcel of land known as
Lot No. 377, located at Tinego, Bayawan, Negros Oriental
from Engracia Macaraya. Prior to the sale, Enriquez was
staying at said lot by mere tolerance of Macaraya. Enriquez
was given an option to buy said lot but she refused to exercise
it. After the sale, Tigle then made demands on Enriquez to
vacate the property, but Enriquez adamantly refused.
In her Answer with Counterclaim filed before the MCTC,
Enriquez averred that the subject property is owned in
common by the heirs of Felix Moncal and any sale by
Macaraya (one of the heirs of Felix Moncal) could only refer
to Macaraya's undivided 1/7 share of the lot. Since said 1/7
share of Macaraya is still unidentified, the same cannot be a
subject of ejectment pursuant to Article 4345 of the Civil
Code.
In its decision dated June 2, 1997, the MCTC of
Bayawan-Basay, decreed:
ACCORDINGLY, in the light of the foregoing
considerations, this Court hereby renders
judgment in favor of the plaintiff to be in
physical, actual, and prior possession of the
parcel of land described in Paragraph 3 of the
Complaint unlawfully occupied by defendant
MELBA MONCAL ENRIQUEZ, and plaintiff is
entitled to the reliefs prayed for in the Complaint as
follows:
1. Declaring plaintiff VICTORINA TIGLE to be in
actual, physical and prior possession of the
premises of the parcel of land mentioned in
Paragraph 3 of the Complaint consisting of ONE
HUNDRED SEVENTY NINE (179) square meters,
more or less, or SUB-LOT NO. 2-A, of LOT NO.
2, mentioned in Par. 5, Page 2 of EXH. "B";
2. Ordering defendant MELBA MONCAL
ENRIQUEZ, her agents, representatives, and all
other persons acting in her behalf to immediately
FEBRUARY 9, 2016
 vacate the premises of the parcel of land mentioned
in Par. 5, Page 2, EXH. "B", otherwise known as
SUB-LOT NO. 2-A of LOT NO. 2;
3. To remove and/or demolish all workings,
constructions and improvements illegally built
and/or constructed in the parcel of land mentioned
in Par. 5, Page 2, of EXH. "B", otherwise known as
SUB-LOT NO. 2-A of LOT NO. 2;
4. Ordering defendant MELBA MONCAL
ENRIQUEZ to pay to plaintiff the sum of
P3,000.00 by way of litigation expenses;
5. Ordering the defendant MELBA MONCAL
ENRIQUEZ to pay to plaintiff the sum of
P10,000.00 by way of attorney's fees;
6. However, for failure to allege and pray for
reasonable compensation and fair rental value for
the use and occupation of the premises of the parcel
of land mentioned in land mentioned in Par. 5, Page
2, of EXH. "B", known as SUB-LOT NO. 2-A of
LOT NO. 2, the same is deemed waived;
7. On the other hand, moral and exemplary
damages are not allowed in ejectment cases;
8. Any allegations by way of Counterclaim are
dismissed for lack of sufficient basis.
Enriquez seasonably appealed to the RTC of Dumaguete
City. In its order of February 16, 1998, the RTC directed
respective counsel for the parties to "submit within fifteen
(15) days from receipt of this order their respective
memoranda and/or briefs."7 The RTC stated that upon
expiration of the period to submit memoranda, it "shall
decide the case on the basis of the entire record of the
proceedings in the court of origin and/or such brief(s) as may
have been filed."8
The counsel for Enriquez failed to comply with the
order to submit a memorandum. On October 6,
1998, the RTC issued the following order:
For failure of defendant-appellant to file and
submit a memorandum within the reglamentary
period as required by Rule 40, Section 7 (b),9 her
appeal is dismissed.
Upon finality of this order, the Clerk of Court is
hereby directed to remand the records of this case
to the lower court for execution of judgment.
10
SO ORDERED.
Enriquez then moved for reconsideration, manifesting that
she was adopting her position paper in the MCTC as her
memorandum.
On October 30, 1998, the RTC denied Enriquez's motion
on the ground that "the records does (sic) not show of
such manifestation."11
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Enriquez then elevated the matter to the Court of
Appeals, which docketed her petition as CA-G.R. SP No.
50360. The appellate court found the primary issue to be
procedural in character, namely: the correctness of the order
of the RTC dismissing herein petitioner's appeal for failure to
file her memorandum on appeal.
On July 20, 1999, the appellate court decided CA-G.R. SP
No. 50360 as follows:
WHEREFORE, premises considered, the instant
petition is hereby DISMISSED for lack of merit.
The appellate court held that "under Section 7, Rule 40 of the
1997 Rules of Civil Procedure (the filing of a memorandum)
is a mandatory obligation on the part of the appellant, such
that, the failure to do so warrants a concomitant dismissal of
the appeal."13
Enriquez moved for reconsideration of the appellate
court's decision, but this was denied by the Court of
Appeals in its order of September 24, 1999.14
Hence, the instant petition before us.
ISSUE: W/N the Court of Appeals commit a reversible
error in sustaining the order of the RTC which dismissed
petitioner's appeal for failure to file memorandum on
appeal?
HELD: No! This is different from the situation where it is
the appellee who fails to file his memorandum, as in this
instance, the RTC may decide the case based on the records
of the proceedings in the court of origin and the appellant's
memorandum. Moreover, the failure to file a memorandum
by the appellant manifests lack of interest to pursue her
appeal.
Rule 40, Section 7 of the 1997 Rules of Civil
Procedure is a new provision. Said section is based
on Section 21 (c) and (d)17 of the Interim Rules
Relative to the Implementation of the Judiciary
Reorganization Act of 1980 (B.P. Blg. 129) with
modifications. These include the following
changes: (a) the appellant is required to submit a
memorandum discussing the errors imputed to the
lower court within fifteen (15) days from notice,
and the appellee is given the same period counted
from receipt of the appellant's memorandum to file
his memorandum; (b) the failure of the appellant to
file a memorandum is a ground for the dismissal of
the appeal.18
Rule 40, Section 7 (b) provides that, "it shall be
the duty of the appellant to submit a
memorandum" and failure to do so "shall be a
ground for dismissal of the appeal." The use of
the word "shall" in a statute or rule expresses what
is mandatory and compulsory.19 Further, the Rule
imposes upon an appellant the "duty" to submit his
memorandum. A duty is a "legal or moral
obligation, mandatory act, responsibility, charge,
requirement, trust, chore, function, commission,
debt, liability, assignment, role, pledge, dictate,
office, (and) engagement."20 Thus, under the
express mandate of said Rule, the appellant is duty-
FEBRUARY 9, 2016
 bound to submit his memorandum on appeal. Such
submission is not a matter of discretion on his part.
His failure to comply with this mandate or to
perform said duty will compel the RTC to dismiss
his appeal.
In rules of procedure, an act which is jurisdictional, or of the
essence of the proceedings, or is prescribed for the protection
or benefit of the party affected is mandatory. 21 As private
respondent points out, in appeals from inferior courts to the
RTC, the appellant's brief is mandatory for the assignment of
errors is vital to the decision of the appeal on the merits. This
is because on appeal only errors specifically assigned and
properly argued in the brief or memorandum will be
considered, except those affecting jurisdiction over the
subject matter as well as plain and clerical errors. 22 Otherwise
stated, an appellate court has no power to resolve an
G.R. No. 97535 August 4, 1995
MANILA ELECTRIC COMPANY, petitioner,
vs.
LA CAMPANA FOOD PRODUCTS, INC., Judge
BENIGNO T. DAYAW, Presiding Judge, RTC, Branch 80,
Quezon City, and Deputy Sheriff JOSE MARTINEZ,
RTC, Branch 96, Quezon City, respondents.
ROMERO, J.:
FACTS: A complaint was filed on August 21, 1990, by
private respondent La Campana Food Products, Inc.
(hereinafter La Campana) against petitioner Manila Electric
Company (hereinafter Meralco) for recovery of a sum of
money with preliminary injunction after it was served a
notice of disconnection by the latter for alleged non-payment
of the following billings: (a) the differential billing in the sum
of P65,619.26, representing the value of electric energy used
but not registered in the meter due to alleged tampering of the
metering installation discovered on September 22, 1986; and
(b) the underbilling in the sum of P169,941.29 (with a
balance of P28,323.55) rendered from January 16, 1987, to
December 16, 1987, due to meter multiplier failure.
Summons and a copy of the complaint were duly served upon
Meralco on August 23, 1990.
On September 7, 1990, Meralco filed a motion for extension
of time of fifteen days from said date within which to file an
answer to the complaint at the Office of the Clerk of Court
after the clerk of Branch 78 allegedly refused to receive the
same because the case had already been re-raffled. The
motion however, was not acted upon because it did not
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unassigned error, which does not affect the court's jurisdiction
over the subject matter, save for a plain or clerical error.23
It is true that the Rules should be interpreted so as to give
litigants ample opportunity to prove their respective claims
and that a possible denial of substantial justice due to legal
technicalities should be avoided.24 But it is equally true that
an appeal being a purely statutory right, an appealing
party must strictly comply with the requisites laid down
in the Rules of Court.25 In other words, he who seeks to
avail of the right to appeal must play by the rules.26 This
the petitioner failed to do when she did not submit her
memorandum of appeal in Civil Case No. 12044 as
required by Rule 40, Section 7 of the 1997 Rules of Civil
Procedure. That she lost her case is not the trial court's
fault but her own.
contain a notice of hearing as required by Sections 4 and 5,
Rule 15 of the Rules of Court.
Meralco's "Answer With Counterclaim" was actually received
at Branch 78 only on September 21, 1990 which is beyond
the period to answer but within the requested extension.
On account of Meralco's failure to file an answer to the
complaint within the reglementary period which expired on
September 7, 1990, La Campana filed on September 28, 1990
an "Ex-Parte Motion, to Declare Defendant in Default,"
which Judge Dayaw granted in an order of default dated
October 8, 1990.
After hearing and receiving La Campana's evidence ex parte,
the court a quo rendered judgment is hereby in favor of
the plaintiff as against the defendant
Instead of appealing the said decision to the Court of
Appeals under Section 2, Rule 41 of the Rules of Court,
Meralco filed on December 3, 1990, a "Motion to Set
Aside Judgment by Default and/or for New Trial" on the
ground that it filed an answer to the complaint and that
the judgment by default was obtained by fraud.
In an order dated January 10, 1991, Judge Dayaw denied the
said motion and opined that Meralco cannot presume that its
motion for extension will be granted by the court, especially
in this case where its motion for extension was defective in
that it did not contain any notice of date and place of hearing.
He also stated that the motion to set aside judgment by
default and/or for new trial was a pro forma motion because it
did not set forth the facts and circumstances which allegedly
constituted the fraud upon which the motion was grounded.
On January 28, 1991, Meralco filed a notice of appeal. This
was opposed by La Campana on the ground that it was
filed out of time since the motion to set aside judgment by
default and/or for new trial did not stop the running of
the period to appeal, which expired on December 14, 1990,
or fifteen days from the time Meralco received the decision
on November 29, 1990.
The trial court, in an order dated February 22, 1991,
denied Meralco's notice of appeal and granted the motion
for execution earlier filed by La Campana. On March 11,
1991, respondent Judge appointed respondent Deputy Sheriff
Jose Martinet of Branch 96 of the same court as special
FEBRUARY 9, 2016
 sheriff to enforce/implement the writ of execution which was
issued on March 12, 1991.
Meralco filed the instant petition for certiorari and
prohibition with prayer for the issuance of a restraining
order and/or preliminary injunction on March 15, 1991,
claiming that Judge Dayaw committed grave abuse of
discretion in rendering his decision dated November 20,
1990. On March 20, 1991, the Court's First Division
issued a temporary restraining order in favor of Meralco.
ISSUE: W/N the trial court committed grave abuse of
discretion?
HELD: NO !
After examining the trial court's assailed decision and orders,
as well as the pleadings and evidence presented below, we are
convinced that respondent Judge committed no abuse of
discretion, much less grave abuse of discretion, in the
proceedings below.
The attention of Meralco is drawn to the fact that it indeed
failed to indicate in its motion for extension of time to file an
answer a notice of place and date of hearing, an omission for
which it could offer no explanation. As we declared in the
case of Gozon, et al. v. Court of Appeals: 1
It is well-entrenched in this jurisdiction
that a motion which does not meet the
requirements of Sections 4 and 5 of Rule 15
of the Rules of Court is considered a
worthless piece of paper which the clerk
has no right to receive and the court has no
authority to act upon.
The judgment by default of November 20, 1990 was based
solely on the evidence presented by La Campana. No
abuse of discretion attended such decision because, as
stated above, Meralco was already in default.
The records indicate that Meralco was not certain at this
juncture what remedy to adopt: a motion to set aside the
judgment by default or a motion for new trial? Meralco
chose to play it safe by using the "and/or" option.
It must be clarified that under the Rules, what an aggrieved
party seeks to set aside is the order of default, an
interlocutory order which is, therefore, not appealable, and
not the judgment by default, which is a final disposition of
the case and appealable to the Court of Appeals. Notice that
in the following pertinent provisions, the Rules expressly
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state that what may be set aside is the order of default, while
the judgment itself may be appealed to a higher court:
Sec. 3. Relief from order of default. A party
declared in default may at any time after discovery
thereof and before judgment file a motion under
oath to set aside the order of default upon proper
showing that his failure to answer was due to fraud,
accident, mistake or excusable neglect and that he
has a meritorious defense. In such case the order of
default may be set aside on such terms and
conditions as the judge may impose in the interest
of justice. [Rule 18]
Sec. 9. Service upon party in default. No service
of papers other than substantially amended or
supplemental pleadings and final orders or
judgments shall be necessary on a party in default
unless he files a motion to set aside the order of
default, in which event he shall be entitled to notice
of all further proceedings regardless of whether the
order of default is set aside or not. [Rule 13]
Sec. 2. Judgments or orders subject to appeal.
xxx xxx xxx
A party who has been declared in default may
likewise appeal from the judgment rendered against
him as contrary to the evidence or to the law, even
if no petition for relief to set aside the order of
default has been presented by him in accordance
with Rule 38.
We agree with respondent Judge that Meralco's motion to set
aside judgment by default and/or for new trial is a mere pro
forma motion inasmuch as it does not specify the facts
constituting the alleged fraud which under the Rules must be
alleged with particularity. 5 Being a pro forma motion, it
did not interrupt the running of the period to
appeal. Accordingly, having received the decision on
November 29, 1990, Meralco had until December 14,
1990, within which to file a notice of appeal. The
notice of appeal which it filed on January 28, 1991,
was clearly filed out of time.
Having lost its right to appeal, Meralco cannot take refuge in
the instant petition for certiorari and prohibition. The Court
has always maintained that the special civil action
of certiorari cannot be a substitute for a lost appeal, and
there appears to be no cogent reason why such policy
should be waived in this case.
FEBRUARY 9, 2016

G.R. No. 109053 October 7, 1995
GERSON R. MENESES, petitioner,
vs.
COURT OF APPEALS and PROCTER AND
GAMBLE PHILS., INC., respondents.
DAVIDE, JR., J.:
FACTS: On 29 May 1991, the petitioner filed with the
Regional Trial Court (RTC) of Manila a complaint for
damages 5against the private respondent. The petitioner
alleged therein as follows:
xxx xxx xxx
Plaintiff was formerly employed by defendant in the
Perla Department as an operator of its "jumbo
machine" where the ingredients of soap are mixed. On
June 1, 1987 at around 3:30 in the afternoon, as
plaintiff was leaving the jumbo caustic switch after
turning it on, the fiberglass cover of the said kettle
exploded.
Plaintiff was drenched in, and burned by
boiling soap oil coming from the kettle in question.
a. Suffered third degree burns over eighty
(80%) percent of his body surface leaving highly
visible scars thereover;
b. Had seven (7) toes of his feet amputated;
c. Underwent psychiatric treatment;
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d. Spent six (6) months of confinement in the
Makati Medical Center; and
e. Spent seventeen (17) months of physical
therapy conducted by the same medical institution.
Shortly after the explosion, the kettle which exploded
was repaired by defendant. Its fiberglass cover was
replaced by a steel cover. Also after the accident,
defendant transferred the caustic system switch nearer
the jumbo machine, away from the giant soap kettles.
Petitioner prayed for the following reliefs:
For the severe and permanent curtailment of plaintiff's
capacity to earn and the income opportunities lost to
him due to [h]is limited mobility, loss of skills, and
general physical deterioration, actual damages of at
least P1,500,000.00;
For plaintiff's continuous mental anguish, moral
anxiety, disfigured appearance, social humiliation,
depression and inferiority complex, moral damages of
at least P2,000,000.00;
As an example to the public, on account of respondent's
wanton, reckless and malicious disregard of its
obligation to observe due diligence in safeguarding its
worker's safety, exemplary damages of at least
P500,000.00; and
For plaintiff's expenses in contracting counsel's
services, attorney's fees of at least 25% of the total
award.
Instead of filing an answer, the private
respondent moved to dismiss the complaint on
grounds of laches and of lack of jurisdiction of the
trial court over the nature and subject matter of the
suit, the same being within the exclusive and
original jurisdiction of the Labor Arbiters of the
National Labor Relations Commission (NLRC). In
its Order of 4 February 1992, the trial court deferred
the resolution of the motion until the trial.
On 5 June 1992, acting on the private
respondent's motion to reconsider the above order, the
trial court issued an order dismissing the complaint
on the ground of lack of jurisdiction. 6
The petitioner's motion to reconsider the order of
dismissal was denied by the trial court in the order of
13 October 1992. 7
Instead of filing a notice of appeal, the petitioner
filed within the period to appeal a petition
for certiorari under Rule 45 of the Rules of Court
but with the respondent Court of Appeals. 8 It was
docketed as CA-G.R. SP No. 29328.
FEBRUARY 9, 2016
 After the respondent Court of Appeals had dismissed
the petition as earlier adverted to, the petitioner came to
us imputing upon the Court of Appeals the commission
of the errors quoted in the opening paragraph of the
ponencia.
ISSUE: W/N CA errred in dismissing the petitioners
certiorari?
HELD: NO!
The petitioner's first ground is devoid of merit. Section
3, Rule 50 of the Revised Rules of Court which he
invokes provides him with no sanctuary. In Murillo
vs. Consul, 9 this Court ruled that "[t]here is no longer
any justification for allowing transfers of erroneous
appeals from one court to the other." The Court
explained its ruling thus:
The two provisions just cited Section 31 of
the Judiciary Act of 1948 and Section 3, Rule 50
had reference to a situation in the past where appeals
could be brought from the Court of First Instance either
to the Court of Appeals or to the Supreme Court by the
same procedure. Those appeals were governed by
Rules 41 and 42 of the Rules of court.
xxx xxx xxx
Indeed, not only the method of taking an
appeal to either the Supreme Court or to the Court of
Appeals, but also the procedure thereafter followed in
either court for the ventilation and adjudication of the
appeal, were essentially the same. According to Section
1, Rule 56, unless otherwise provided by law, the
Rules, or the Constitution, the procedure in the
Supreme Court in original as well as in appealed cases
was the same as that in the Court of Appeals. There
was therefore not much difficulty or delay entailed by a
transfer of an appeal from one court to the other.
However, these provisions, prescribing a
common mode of appeal to the Court of Appeals
and to this Court, and a common method of passing
on and resolving an appeal, are no longer in force
and effect. They have been largely superseded and
rendered functus officio by certain statutes which have
wrought substantial changed [sic] in the appellate
procedures in this jurisdiction, notably Republic Acts
Numbered 5433 and 5440 (both effective on September
9, 1968) and 6031 (effective August 4, 1969), as well
as Batas Pambansa Blg. 129 (effective August 14,
1981).
xxx xxx xxx
At present then, except in criminal cases
where the penalty imposed is life imprisonment
or reclusion perpetua, there is no way by which
judgments of regional trial courts may be appealed to
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this Court except by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court, in
relation to Section 17 of the Judiciary Act of 1948, as
amended. The proposition is clearly stated in the
Interim Rules: "Appeals to the Supreme Court shall
be taken by petition for certiorari which shall be
governed by Rule 45 of the Rules of Court.
On the other hand, it is not possible to take an
appeal by certiorari to the Court of Appeals. Appeals to
that Court from the Regional Trial Courts are perfected
in two (2) ways, both of which are entirely distinct
from an appeal by certiorari to the Supreme Court.
They are:
(a) by ordinary appeal, or appeal by
writ of error where judgment was rendered
in a civil or criminal action by the RTC in the
exercise of original jurisdiction, and by
petition for review where judgment was
rendered by the RTC in the exercise of
appellate jurisdiction, and
(b) by petition for review where
judgment was rendered by the RTC in the
exercise of appellate jurisdiction.
The petition for review must be filed with the
Court of Appeals within 15 days from notice of the
judgment, and as already stated, shall point out the
error of fact or law that will warrant a reversal or
modification of the decision or judgment sought to be
reviewed. An ordinary appeal is taken by merely filing
a notice of appeal within 15 days from notice of the
judgment, except in special proceedings or cases where
multiple appeals are allowed in which event the period
of appeal is 30 days and a record on appeal is
necessary.
xxx xxx xxx
In fine, if an appeal is essayed to either court
by the wrong procedure, the only course of action open
is to dismiss the appeal. In other words, if an appeal is
attempted from a judgment of a Regional Trial Court
by notice of appeal, that appeal can and should never
go to this Court, regardless of any statement in the
notice that the court of choice is the Supreme Court;
and more than once has this Court admonished a Trial
Judge and/or his Clerk of Court, as well as the attorney
taking the appeal, for causing the records to be sent up
to this Court in such a case. Again, if an appeal by
notice of appeal is taken from the Regional Trial Court
to the Court of Appeals and in the latter Court, the
appellant raises naught but issues of law, the appeal
should be dismissed for lack of jurisdiction. And
finally, it may be stressed once more, it is only through
petitions for review on certiorari that the appellate
jurisdiction of this Court may properly be invoked.
FEBRUARY 9, 2016
 There is no longer any justification for
allowing transfers of erroneous appeals from one court
to the other, much less for tolerating continued
ignorance of the law on appeals. It thus behooves every
attorney seeking review and reversal of a judgment or
order promulgated against his client, to determine
clearly the errors he believes may be ascribed to the
judgment or order, whether of fact or of law; then to
ascertain carefully which court properly has appellate
jurisdiction; and finally, to observe scrupulously the
requisites for appeal prescribed by law, with keen
awareness that any error or imprecision in compliance
therewith may well be fatal to his client's cause.
(citations omitted).
The Murillo rule was embodied in Circular
No. 2-90 of this Court which was issued on 9 March
1990.
It must also be stressed that the trial court's order of 5
June 1992 dismissing the petitioner's complaint was,
whether it was right or wrong, a final order because it
had put an end to the particular matter resolved, or
G.R. No. 139303 August 25, 2005
Cipriano Enriquez, Raymundo Enriquez, Concepcion Enriquez, assisted by her husband Matias Quitanes, Tomas Enriquez, Luis
Diaz, Cesar Diaz, Manuel Diaz, Domingo Enriquez, Elpidio Enriquez, Filipina Enriquez, Casimira Dizon, Saturnino Dizon, Jose
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settled definitely the matter therein disposed of and left
nothing more to be done by the trial court except the
execution of the order. It is a firmly settled rule that the
remedy against such order is the remedy of appeal and
not certiorari.11 That appeal may be solely on questions
of law, in which case it may be taken only to this
Court; or on questions of fact and law, in which case
the appeal should be brought to the Court of
Appeals. 12 Pursuant to Murillo vs. Consul, 13 the appeal
to this Court should be by petition for review
on certiorari in accordance with Rule 45 of the Rules
of Court.
In the instant case then, if the petitioner had chosen
to appeal from the dismissal order of the trial court
solely on questions of law, then he should have filed
a petition for review on certiorari with this Court. If
he wanted to raise in his appeal both questions of law
and of fact, then he should have pursued the remedy of
an ordinary appeal to the Court of Appeals and not by
way of a petition for review under Rule 45. The Court
of Appeals did not then commit any reversible error
when it dismissed the petition for review of the
petitioner in CA-G.R. SP No. 29328.
FEBRUARY 9, 2016
Ramos, Amado Mislang, Antonio Quitaneg, Villamor Quitaneg, Jimmy Clavo, Oscar Laborce, Sevilla Pizarro, Angelita Pizzaro,
Isidro Rico, Pio Famisan, Pantaleon Abille, Beinvenido Corum, Martina Hisole, Erna D. Enriquez, assisted by her husband Ritchie
Flauta, and Ignacio Enriquez, Jr., Petitioners,
vs.
MAXIMO ENRIQUEZ (now deceased), substituted by CARMEN AGANA, IGMIDIO ENRIQUEZ, CONCEPCION ENRIQUEZ,
CIPRIANO ENRIQUEZ, DIONISIONENRIQUEZ, MAXIMO ENRIQUEZ, CLEOFE ENRIQUEZ, TOMAS ENRIQUEZ,
RAYMUNDO ENRIQUEZ and NICOLAS ENRIQUEZ, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

FACTS: On November 17, 1988, Maximo Enriquez, later substituted by his heirs (now respondents), filed with the Regional Trial Court
(RTC), Branch 71 of Iba, Zambales a complaint for partition against petitioners. The complaint involves a parcel of land situated at
Amungan, Iba, same province, covered by TCT No. T-28593, with an area of 44,984 square meters. He alleged that he owns 10/18 undivided
portion of the property, 9/18 by purchase and 1/18 by inheritance; and that petitioners have been residing in the premises without his
knowledge and consent, thereby depriving him of his undivided share of the property.

Petitioners, in their answer, averred that Cipriano Enriquez, one of the petitioners, owns of the property, while the others are in possession
of the other areas with his knowledge and consent.

On June 4, 1998, the RTC rendered a Decision ordering the petitioners to vacate the property and to surrender possession thereof to
respondents.

A copy of the Decision was received by counsel for petitioners on June 22, 1998. On July 3, 1998, they filed a Notice of Appeal with the
RTC. It was approved on July 7, 1998.

On February 3, 1999, the Court of Appeals dismissed the appeal of petitioners for their failure to pay the appellate court docket fee, thus:

"For failure to pay docket fee, the appeal is deemed ABANDONED and DISMISSED, pursuant to Section 1(c), Rule 50, Revised Rules of
Court."

Petitioners filed a motion for reconsideration but it was denied by the Appellate Court in a Resolution dated July 7, 1999, thus:

"Per copy of the official receipt attached to appellants motion for reconsideration, the docket fee was paid on November 4, 1998 or 4 months
after the notice of appeal was filed on July 3, 1998.

Consequently, appellants motion for reconsideration is hereby denied."

In the instant petition for review, petitioners raise the following errors allegedly committed by the Appellate Court:

ISSUE: W/N the Court of Appeals correctly dismissed the petition for failure of the petitioners to pay appellate court docket fee.

HELD: No!

In dismissing petitioners appeal, the Court of Appeals cited Section 1(c), Rule 50 of the Revised Rules of Court which provides:

"Section 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:

xxx

(c) Failure of the appellant to pay the docket and other lawful fees as provided in Section 4 of Rule 41."

Petitioners admit that the governing Rule on their payment of appellate court docket fee is Section 4, Rule 41 of the 1997 Rules of
Civil Procedure, as amended, which provides:

"Section 4. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellantshall pay to the clerk
of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other

CIVIL PROCEDURE L-P FEBRUARY 9, 2016

lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record of the record or
the record on appeal."

the 1997 Rules of Civil Procedure, as amended, which took effect on July 1, 1997, now require that appellate docket and other lawful
fees must be paid within the same period for taking an appeal. This is clear from the opening sentence of Section 4, Rule 41 of the same
Rules that, "(W)ithin the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final
order appealed from, the full amount of the appellate court docket and other lawful fees."

The use of the word "shall" underscores the mandatory character of the Rule. The term "shall" is a word of command, and one which has
always or which must be given a compulsory meaning, and it is generally imperative or mandatory.4 Petitioners cannot give a different
interpretation to the Rule and insist that payment of docket fee shall be made only upon their receipt of a notice from the trial court to pay.
For it is a rule in statutory construction that every part of the statute must be interpreted with reference to the context, i.e., that every part of
the statute must be interpreted together with the other parts, and kept subservient to the general intent of the whole enactment. 5 Indeed,
petitioners cannot deviate from the Rule.

Also under Rule 41 of the same Rules, an appeal to the Court of Appeals from a case decided by the RTC in the exercise of the latters
original jurisdiction, shall be taken within fifteen (15) days from the notice of judgment or final order appealed from. Such appeal is
made by filing a notice thereof with the court that rendered the judgment or final order and by serving a copy of that notice upon the adverse
party. Furthermore, within this same period, appellant shall pay to the clerk of court which rendered the judgment or final order appealed
from, the full amount of the appellate court docket and other lawful fees. The payment of docket fee within this period is mandatory for the
perfection of appeal. Otherwise, the appellate court would not be able to act on the subject matter of the action, and the decision sought to be
appealed from becomes final and executory.6

Time and again, this Court has consistently held that payment of docket fee within the prescribed period is mandatory for the perfection of an
appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought
to be appealed from becomes final and executory.7

Petitioners argue that the Appellate Court, in issuing the assailed Resolutions, gave premium to technicalities rather than substance and
disregarded the merits of the petition. They ask for a liberal construction of the Rules.

Appeal is not a right but a statutory privilege, thus, appeal must be made strictly in accordance with the provision set by law.
The requirement of the law under Section 4, Rule 41 is clear. The payment of appellate docket fee is not a mere technicality of law or
procedure but an essential requirement for the perfection of an appeal. 8

The payment of the docket fee within the period is a condition sine qua non for the perfection of an appeal. Contrary to petitioners
submission, the payment of the appellate court docket and other lawful fees is not a mere technicality of law or procedure. It is an essential
requirement, without which the decision or final order appealed from would become final and executory as if no appeal was filed at all. 9

This Court has consistently ruled that litigation is not a game of technicalities and that every case must be prosecuted in accordance with the
prescribed procedure so that issues may be properly presented and justly resolved. The rules of procedure must be faithfully followed except
only when, for persuasive and weighting reasons, they may be relaxed to relieve a litigant of an injustice commensurate with his failure to
comply within the prescribed procedure. Concomitant to a liberal interpretation of the rules of procedure should be an effort on the
part of the party invoking liberality to adequately explain his failure to abide by the rules.10Anyone seeking exemption from the
application of the Rule has the burden of proving that exceptionally meritorious instances exist which warrant such departure. 11

In the present case, petitioners failed to establish any sufficient and satisfactory reason to warrant a relaxation of the mandatory rule on the
payment of appellate court docket fee. Actually, the payment of the required docket fee was late because of the erroneous interpretation of the
Rule by petitioners counsel. Verily, to grant their petition would be putting a premium on his ignorance or lack of knowledge of existing
Rules. He should be reminded that it is his duty to keep abreast of legal developments and prevailing laws, rules and legal
principles,12 otherwise his clients will be prejudiced, as in this case.

CIVIL PROCEDURE L-P FEBRUARY 9, 2016