G.R. No.
171750 January 25, 2012 For failure of Unibox and Ortega to pay the required amounts for the months of May and June
UNITED PULP AND PAPER CO., INC., Petitioner,
vs.
ACROPOLIS CENTRAL GUARANTY CORPORATION, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review under Rule 45 praying for the annulment of the November 17, 2005
Decision1 and the March 2, 2006 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No.
89135 entitled Acropolis Central Guaranty Corporation (formerly known as the Philippine Pryce
Assurance Corp.) v. Hon. Oscar B. Pimentel, as Presiding Judge, RTC of Makati City, Branch
148 (RTC), and United Pulp and Paper Co., Inc.
The Facts
On May 14, 2002, United Pulp and Paper Co., Inc. (UPPC) filed a civil case for collection of the
amount ofP42,844,353.14 against Unibox Packaging Corporation (Unibox) and Vicente Ortega
(Ortega) before the Regional Trial Court of Makati, Branch 148 (RTC).3 UPPC also prayed for a
Writ of Preliminary Attachment against the properties of Unibox and Ortega for the reason that
the latter were on the verge of insolvency and were transferring assets in fraud of creditors. 4 On
August 29, 2002, the RTC issued the Writ of Attachment5 after UPPC posted a bond in the same
amount of its claim. By virtue of the said writ, several properties and assets of Unibox and
Ortega were attached.6
On October 10, 2002, Unibox and Ortega filed their Motion for the Discharge of
Attachment,7 praying that they be allowed to file a counter-bond in the amount
of P42,844,353.14 and that the writ of preliminary attachment be discharged after the filing of
such bond. Although this was opposed by UPPC, the RTC, in its Order dated October 25, 2002,
granted the said motion for the discharge of the writ of attachment subject to the condition that
Unibox and Ortega file a counter-bond.8 Thus, on November 21, 2002, respondent Acropolis
Central Guaranty Corporation (Acropolis) issued the Defendants Bond for Dissolution of
Attachment9 in the amount ofP42,844,353.14 in favor of Unibox.
Not satisfied with the counter-bond issued by Acropolis, UPPC filed its Manifestation and Motion
to Discharge the Counter-Bond10 dated November 27, 2002, claiming that Acropolis was among
those insurance companies whose licenses were set to be cancelled due to their failure to put
up the minimum amount of capitalization required by law. For that reason, UPPC prayed for the
discharge of the counter-bond and the reinstatement of the attachment. In its December 10,
2002 Order,11 the RTC denied UPPCs Motion to Discharge Counter-Bond and, instead,
approved and admitted the counter-bond posted by Acropolis. Accordingly, it ordered the sheriff
to cause the lifting of the attachment on the properties of Unibox and Ortega.
On September 29, 2003, Unibox, Ortega and UPPC executed a compromise
agreement,12 wherein Unibox and Ortega acknowledged their obligation to UPPC in the amount
of P35,089,544.00 as of August 31, 2003, inclusive of the principal and the accrued interest, and
bound themselves to pay the said amount in accordance with a schedule of payments agreed
upon by the parties. Consequently, the RTC promulgated its Judgment13 dated October 2, 2003
approving the compromise agreement.
2004 despite demand by UPPC, the latter filed its Motion for Execution 14 to satisfy the remaining
unpaid balance. In the July 30, 2004 Order,15 the RTC acted favorably on the said motion and,
on August 4, 2004, it issued the requested Writ of Execution.16
The sheriff then proceeded to enforce the Writ of Execution. It was discovered, however, that
Unibox had already ceased its business operation and all of its assets had been foreclosed by
its creditor bank. Moreover, the responses of the selected banks which were served with notices
of garnishment indicated that Unibox and Ortega no longer had funds available for garnishment.
The sheriff also proceeded to the residence of Ortega to serve the writ but he was denied entry
to the premises. Despite his efforts, the sheriff reported in his November 4, 2008 Partial
Return17 that there was no satisfaction of the remaining unpaid balance by Unibox and Ortega.
On the basis of the said return, UPPC filed its Motion to Order Surety to Pay Amount of Counter-
Bond18 directed at Acropolis. On November 30, 2004, the RTC issued its Order19 granting the
motion and ordering Acropolis to comply with the terms of its counter-bond and pay UPPC the
unpaid balance of the judgment in the amount ofP27,048,568.78 with interest of 12% per annum
from default.
Thereafter, on December 13, 2004, Acropolis filed its Manifestation and Very Urgent Motion for
Reconsideration,20 arguing that it could not be made to pay the amount of the counter-bond
because it did not receive a demand for payment from UPPC. Furthermore, it reasoned that its
obligation had been discharged by virtue of the novation of its obligation pursuant to the
compromise agreement executed by UPPC, Unibox and Ortega. The motion, which was set for
hearing on December 17, 2004, was received by the RTC and UPPC only on December 20,
2004.21 In the Order dated February 22, 2005, the RTC denied the motion for reconsideration for
lack of merit and for having been filed three days after the date set for the hearing on the said
motion.22
Aggrieved, Acropolis filed a petition for certiorari before the CA with a prayer for the issuance of
a Temporary Restraining Order and Writ of Preliminary Injunction.23 On November 17, 2005, the
CA rendered its Decision24granting the petition, reversing the February 22, 2005 Order of the
RTC, and absolving and relieving Acropolis of its liability to honor and pay the amount of its
counter-attachment bond. In arriving at said disposition, the CA stated that, firstly, Acropolis was
able to comply with the three-day notice rule because the motion it filed was sent by registered
mail on December 13, 2004, four days prior to the hearing set for December 17,
2004;25 secondly, UPPC failed to comply with the following requirements for recovery of a
judgment creditor from the surety on the counter-bond in accordance with Section 17, Rule 57 of
the Rules of Court, to wit: (1) demand made by creditor on the surety, (2) notice to surety and (3)
summary hearing as to his liability for the judgment under the counter-bond;26 and, thirdly, the
failure of UPPC to include Acropolis in the compromise agreement was fatal to its case.27
UPPC then filed a motion for reconsideration but it was denied by the CA in its Resolution dated
March 1, 2006.28
Hence, this petition.
The Issues
For the allowance of its petition, UPPC raises the following
GROUNDS
 I.
The Court of Appeals erred in not holding respondent liable on its counter-attachment bond
which it posted before the trial court inasmuch as:
A. The requisites for recovering upon the respondent-surety were clearly complied with by
petitioner and the trial court, inasmuch as prior demand and notice in writing was made upon
respondent, by personal service, of petitioners motion to order respondent surety to pay the
amount of its counter-attachment bond, and a hearing thereon was held for the purpose of
determining the liability of the respondent-surety.
B. The terms of respondents counter-attachment bond are clear, and unequivocally provide that
respondent as surety shall jointly and solidarily bind itself with defendants to secure and pay any
judgment that petitioner may recover in the action. Hence, such being the terms of the bond, in
accordance with fair insurance practices, respondent cannot, and should not be allowed to,
evade its liability to pay on its counter-attachment bond posted by it before the trial court.
II.
The Court of Appeals erred in holding that the trial court gravely abused its discretion in denying
respondents manifestation and motion for reconsideration considering that the said motion
failed to comply with the three (3)-day notice rule under Section 4, Rule 15 of the Rules of Court,
and that it had lacked substantial merit to warrant a reversal of the trial courts previous order.29
Simply put, the issues to be dealt with in this case are as follows:
(1) Whether UPPC failed to make the required demand and notice upon Acropolis; and
(2) Whether the execution of the compromise agreement between UPPC and Unibox and
Ortega was tantamount to a novation which had the effect of releasing Acropolis from its
obligation under the counter-attachment bond.
The Courts Ruling
UPPC complied with the twin requirements of notice and demand
On the recovery upon the counter-bond, the Court finds merit in the arguments of the petitioner.
UPPC argues that it complied with the requirement of demanding payment from Acropolis by
notifying it, in writing and by personal service, of the hearing held on UPPCs Motion to Order
Respondent-Surety to Pay the Bond.30Moreover, it points out that the terms of the counter-
attachment bond are clear in that Acropolis, as surety, shall jointly and solidarily bind itself with
Unibox and Ortega to secure the payment of any judgment that UPPC may recover in the
action.31
Section 17, Rule 57 of the Rules of Court sets forth the procedure for the recovery from a surety
on a counter-bond:
Sec. 17. Recovery upon the counter-bond. When the judgment has become executory, the
surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure
the payment of the judgment shall become charged on such counter-bond and bound to pay the
judgment obligee upon demand the amount due under the judgment, which amount may be
recovered from such surety or sureties after notice and summary hearing on the same action.
From a reading of the abovequoted provision, it is evident that a surety on a counter-bond given
to secure the payment of a judgment becomes liable for the payment of the amount due upon:
(1) demand made upon the surety; and (2) notice and summary hearing on the same action.
After a careful scrutiny of the records of the case, the Court is of the view that UPPC indeed
complied with these twin requirements.
This Court has consistently held that the filing of a complaint constitutes a judicial
demand.32 Accordingly, the filing by UPPC of the Motion to Order Surety to Pay Amount of
Counter-Bond was already a demand upon Acropolis, as surety, for the payment of the amount
due, pursuant to the terms of the bond. In said bond, Acropolis bound itself in the sum
of P 42,844,353.14 to secure the payment of any judgment that UPPC might recover against
Unibox and Ortega.33
Furthermore, an examination of the records reveals that the motion was filed by UPPC on
November 11, 2004 and was set for hearing on November 19, 2004.34 Acropolis was duly
notified of the hearing and it was personally served a copy of the motion on November 11,
2004,35 contrary to its claim that it did not receive a copy of the motion.
On November 19, 2004, the case was reset for hearing on November 30, 2004. The minutes of
the hearing on both dates show that only the counsel for UPPC was present. Thus, Acropolis
was given the opportunity to defend itself. That it chose to ignore its day in court is no longer the
fault of the RTC and of UPPC. It cannot now invoke the alleged lack of notice and hearing when,
undeniably, both requirements were met by UPPC.
No novation despite compromise agreement; Acropolis still liable under the terms of the counter-
bond
UPPC argues that the undertaking of Acropolis is to secure any judgment rendered by the RTC
in its favor. It points out that because of the posting of the counter-bond by Acropolis and the
dissolution of the writ of preliminary attachment against Unibox and Ortega, UPPC lost its
security against the latter two who had gone bankrupt.36 It cites the cases of Guerrero v. Court of
Appeals37 and Martinez v. Cavives38 to support its position that the execution of a compromise
agreement between the parties and the subsequent rendition of a judgment based on the said
compromise agreement does not release the surety from its obligation nor does it novate the
obligation.39
Acropolis, on the other hand, contends that it was not a party to the compromise agreement.
Neither was it aware of the execution of such an agreement which contains an acknowledgment
of liability on the part of Unibox and Ortega that was prejudicial to it as the surety. Accordingly, it
cannot be bound by the judgment issued based on the said agreement.40 Acropolis also
questions the applicability of Guerrero and draws attention to the fact that in said case, the
compromise agreement specifically stipulated that the surety shall continue to be liable, unlike in
the case at bench where the compromise agreement made no mention of its obligation to
UPPC.41
On this issue, the Court finds for UPPC also.
The terms of the Bond for Dissolution of Attachment issued by Unibox and Acropolis in favor of
UPPC are clear and leave no room for ambiguity:
WHEREAS, the Honorable Court in the above-entitled case issued on _____ an Order xxx
dissolving / lifting partially the writ of attachment levied upon the defendant/s personal property,
upon the filing of a counterbond by the defendants in the sun of PESOS FORTY TWO MILLION
As declared by us in Mercado v. Macapayag, 69 Phil. 403, 405-406, in passing upon the liability
EIGHT HUNDRED FORTY FOUR THOUSAND THREE HUNDRED FIFTY THREE AND 14/100
of counter sureties in replevin who bound themselves to answer solidarily for the obligations of
ONLY (P 42,844,353.14) Philippine Currency.
the defendants to the plaintiffs in a fixed amount of P 912.04, to secure payment of the amount
that said plaintiff be adjudged to recover from the defendants,
NOW, THEREFORE, we UNIBOX PACKAGING CORP. as Principal and PHILIPPINE PRYCE
ASSURANCE CORP., a corporation duly organized and existing under and by virtue of the laws
the liability of the sureties was fixed and conditioned on the finality of the judgment
of the Philippines, as Surety, in consideration of the dissolution of said attachment, hereby
rendered regardless of whether the decision was based on the consent of the parties or on the
jointly and severally bind ourselves in the sum of FORTY TWO MILLION EIGHT HUNDRED
merits. A judgment entered on a stipulation is nonetheless a judgment of the court because
FORTY FOUR THOUSAND THREE HUNDRED FIFTY THREE AND 14/100 ONLY (P
consented to by the parties.44
42,844,353.14) Philippine Currency, in favor of the plaintiff to secure the payment ofany
judgment that the plaintiff may recover against the defendants in this action.42 [Emphasis
and underscoring supplied] [Emphases and underscoring supplied]

Based on the foregoing, Acropolis voluntarily bound itself with Unibox to be solidarily liable to The argument of Acropolis that its obligation under the counter-bond was novated by the
answer for ANY judgment which UPPC may recover from Unibox in its civil case for collection. compromise agreement is, thus, untenable. In order for novation to extinguish its obligation,
Its counter-bond was issued in consideration of the dissolution of the writ of attachment on the Acropolis must be able to show that there is an incompatibility between the compromise
properties of Unibox and Ortega. The counter-bond then replaced the properties to ensure agreement and the terms of the counter-bond, as required by Article 1292 of the Civil Code,
recovery by UPPC from Unibox and Ortega. It would be the height of injustice to allow Acropolis which provides that:
to evade its obligation to UPPC, especially after the latter has already secured a favorable
judgment.
Art. 1292. In order that an obligation may be extinguished by another which substitute the same,
it is imperative that it be so declared in unequivocal terms, or that the old and the new
This issue is not novel. In the case of Luzon Steel Corporation v. Sia,43 Luzon Steel Corporation obligations be on every point incompatible with each other. (1204)
sued Metal Manufacturing of the Philippines and Jose Sia for breach of contract and damages. A
writ of preliminary attachment was issued against the properties of the defendants therein but
Nothing in the compromise agreement indicates, or even hints at, releasing Acropolis from its
the attachment was lifted upon the filing of a counter-bond issued by Sia, as principal, and Times
obligation to pay UPPC after the latter has obtained a favorable judgment. Clearly, there is no
Surety & Insurance Co., as surety. Later, the plaintiff and the defendants entered into a
incompatibility between the compromise agreement and the counter-bond. Neither can novation
compromise agreement whereby Sia agreed to settle the plaintiffs claim. The lower court
be presumed in this case. As explained inDugo v. Lopena:45
rendered a judgment in accordance with the terms of the compromise. Because the defendants
failed to comply with the same, the plaintiff obtained a writ of execution against Sia and the
surety on the counter-bond. The surety moved to quash the writ of execution on the ground that Novation by presumption has never been favored. To be sustained, it need be established that
it was not a party to the compromise and that the writ was issued without giving the surety notice the old and new contracts are incompatible in all points, or that the will to novate appears by
and hearing. Thus, the court set aside the writ of execution and cancelled the counter-bond. On express agreement of the parties or in acts of similar import.46
appeal, this Court, speaking through the learned Justice J.B.L. Reyes, discussed the nature of
the liability of a surety on a counter-bond:
All things considered, Acropolis, as surety under the terms of the counter-bond it issued, should
be held liable for the payment of the unpaid balance due to UPPC.
Main issues posed are (1) whether the judgment upon the compromise discharged the surety
from its obligation under its attachment counterbond and (2) whether the writ of execution could
be issued against the surety without previous exhaustion of the debtor's properties. Three-day notice rule, not a hard and fast rule

Both questions can be solved by bearing in mind that we are dealing with a counterbond filed to
discharge a levy on attachment. Rule 57, section 12, specifies that an attachment may be
discharged upon the making of a cash deposit or filing a counterbond "in an amount equal to the
value of the property attached as determined by the judge"; that upon the filing of the
counterbond "the property attached ... shall be delivered to the party making the deposit or
giving the counterbond, or the person appearing on his behalf, the deposit or counterbond
aforesaid standing in place of the property so released."
The italicized expressions constitute the key to the entire problem. Whether the judgment be
rendered after trial on the merits or upon compromise, such judgment undoubtedly may be
made effective upon the property released; and since the counterbond merely stands in the
place of such property, there is no reason why the judgment should not be made effective
against the counterbond regardless of the manner how the judgment was obtained.
Although this issue has been obviated by our disposition of the two main issues, the Court would
like to point out that the three-day notice requirement is not a hard and fast rule and substantial
compliance is allowed.
Pertinently, Section 4, Rule 15 of the Rules of Court reads:
Sec. 4. Hearing of motion. Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by the
applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served
in such a manner as to insure its receipt by the other party at least three (3) days before
the date of hearing, unless the court for good cause sets the hearing on shorter notice.
[Emphasis supplied]1wphi1

The law is clear that it intends for the other party to receive a copy of the written motion at least
three days before the date set for its hearing. The purpose of the three (3)-day notice
requirement, which was established not for the benefit of the movant but rather for the adverse
party, is to avoid surprises upon the latter and to grant it sufficient time to study the motion and
to enable it to meet the arguments interposed therein.47 In Preysler, Jr. v. Manila Southcoast
Development Corporation,48 the Court restated the ruling that "the date of the hearing should be
at least three days after receipt of the notice of hearing by the other parties."

It is not, however, a hard and fast rule. Where a party has been given the opportunity to be
heard, the time to study the motion and oppose it, there is compliance with the rule. This was the
ruling in the case of Jehan Shipping Corporation v. National Food Authority,49 where it was
written:

Purpose Behind the

Notice Requirement

This Court has indeed held time and time again that, under Sections 4 and 5 of Rule 15 of the
Rules of Court, mandatory is the notice requirement in a motion, which is rendered defective by
failure to comply with the requirement. As a rule, a motion without a notice of hearing is
considered pro forma and does not affect the reglementary period for the appeal or the filing of
the requisite pleading.

As an integral component of procedural due process, the three-day notice required by the Rules
is not intended for the benefit of the movant. Rather, the requirement is for the purpose of
avoiding surprises that may be sprung upon the adverse party, who must be given time to study
and meet the arguments in the motion before a resolution by the court. Principles of natural
justice demand that the right of a party should not be affected without giving it an opportunity to
be heard.

The test is the presence of the opportunity to be heard, as well as to have time to study
the motion and meaningfully oppose or controvert the grounds upon which it is
based. Considering the circumstances of the present case, we believe that the requirements of
procedural due process were substantially complied with, and that the compliance justified a
departure from a literal application of the rule on notice of hearing. 50[Emphasis supplied]

In the case at bench, the RTC gave UPPC sufficient time to file its comment on the motion. On
January 14, 2005, UPPC filed its Opposition to the motion, discussing the issues raised by
Acropolis in its motion. Thus, UPPCs right to due process was not violated because it was
afforded the chance to argue its position.

WHEREFORE, the petition is GRANTED. The November 17, 2005 Decision and the March 1,
2006 Resolution of the Court of Appeals, in CA-G.R. SP No. 89135, are hereby REVERSED and
SET ASIDE. The November 30, 2004 Order of the Regional Trial Court, Branch 148, Makati City,
ordering Acropolis to comply with the terms of its counter-bond and pay UPPC the unpaid
balance of the judgment in the amount of P27,048,568.78 with interest of 12% per annum from
default is REINSTATED.

JOSE CATRAL MENDOZA

Associate Justice
G.R. No. 185922 January 15, 2014
HEIRS OF DR. MARIANO FAVIS SR. represented by their co-heirs and Attorneys-in-Fact
MERCEDES A. FAVIS and NELLY FAVIS- VILLAFUERTE, Petitioners,
vs.
JUANA GONZALES, her son MARIANO G. FAVIS, MA. THERESA JOANA D. FAVIS, JAMES
MARK D. FAVIS, all minors represented herein by their parents SPS. MARIANO FAVIS and
LARCELITA D. FAVIS,Respondents.
DECISION
PEREZ, J.:
Before this Court is a petition for review assailing the 10 April 2008 Decision 1 and 7 January
2009 Resolution2 of the Court of Appeals in CA-G.R. CV No. 86497 dismissing petitioners
complaint for annulment of the Deed of Donation for failure to exert earnest efforts towards a
compromise.
Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar (Capitolina) with whom he
had seven children named Purita A. Favis, Reynaldo Favis, Consolacion Favis-Queliza, Mariano
A. Favis, Jr., Esther F. Filart, Mercedes A. Favis, and Nelly Favis-Villafuerte. When Capitolina
died in March 1944, Dr. Favis took Juana Gonzales (Juana) as his common-law wife with whom
he sired one child, Mariano G. Favis (Mariano). When Dr. Favis and Juana got married in 1974,
Dr. Favis executed an affidavit acknowledging Mariano as one of his legitimate children. Mariano
is married to Larcelita D. Favis (Larcelita), with whom he has four children, named Ma. Theresa
Joana D. Favis, Ma. Cristina D. Favis, James Mark D. Favis and Ma. Thea D. Favis.
Dr. Favis died intestate on 29 July 1995 leaving the following properties:
1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan, Ilocos Sur,
consisting an area of 898 square meters, more or less, bounded on the north by
Salvador Rivero; on the East by Eleutera Pena; on the South by Bonifacio St., and on
the West by Carmen Giron; x x x;
2. A commercial building erected on the aforesaid parcel of land with an assessed
value of P126,000.00; x x x;
3. A parcel of residential land located in Brgy. VII, Vigan, Ilocos Sur, containing an area
of 154 sq. ms., more or less, bounded on the North by the High School Site; on the
East by Gomez St., on the South by Domingo [G]o; and on the West by Domingo Go;
x x x;
4. A house with an assessed value of P17,600.00 x x x;
5. A parcel of orchard land located in Brgy. VI, Vigan, Ilocos Sur, containing an area of
2,257 sq. ma. (sic) more or less, bounded on the North by Lot 1208; on the East by
Mestizo River; on the South by Lot 1217 and on the West by Lot 1211-B, 1212 and
1215 x x x.3
Beginning 1992 until his death in 1995, Dr. Favis was beset by various illnesses, such as kidney
trouble, hiatal hernia, congestive heart failure, Parkinsons disease and pneumonia. He died of
"cardiopulmonary arrest secondary to multi-organ/system failure secondary to sepsis secondary
to pneumonia."4
On 16 October 1994, he allegedly executed a Deed of Donation5 transferring and conveying
properties described in (1) and (2) in favor of his grandchildren with Juana.
Claiming that said donation prejudiced their legitime, Dr. Favis children with Capitolina,
petitioners herein, filed an action for annulment of the Deed of Donation, inventory, liquidation
and partition of property before the Regional Trial Court (RTC) of Vigan, Ilocos Sur, Branch 20
against Juana, Spouses Mariano and Larcelita and their grandchildren as respondents.
In their Answer with Counterclaim, respondents assert that the properties donated do not form
part of the estate of the late Dr. Favis because said donation was made inter vivos, hence
petitioners have no stake over said properties.6
The RTC, in its Pre-Trial Order, limited the issues to the validity of the deed of donation and
whether or not respondent Juana and Mariano are compulsory heirs of Dr. Favis.7
In a Decision dated 14 November 2005, the RTC nullified the Deed of Donation and cancelled
the corresponding tax declarations. The trial court found that Dr. Favis, at the age of 92 and
plagued with illnesses, could not have had full control of his mental capacities to execute a valid
Deed of Donation. Holding that the subsequent marriage of Dr. Favis and Juana legitimated the
status of Mariano, the trial court also declared Juana and Mariano as compulsory heirs of Dr.
Favis. The dispositive portion reads:WHEREFORE, in view of all the foregoing considerations,
the Deed of Donation dated October 16, 1994 is hereby annulled and the corresponding tax
declarations issued on the basis thereof cancelled. Dr. Mariano Favis, Sr. having died without a
will, his estate would result to intestacy. Consequently, plaintiffs Heirs of Dr. Mariano Favis, Sr.,
namely Purita A. Favis, Reynaldo A. Favis, Consolacion F. Queliza, Mariano A. Favis, Jr., Esther
F. Filart, Mercedes A. Favis, Nelly F. Villafuerte and the defendants Juana Gonzales now
deceased and Mariano G. Favis, Jr. shall inherit in equal shares in the estate of the late Dr.
Mariano Favis, Sr. which consists of the following:
1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan City, Ilocos Sur,
consisting an area of 89 sq. meters more or less, bounded on the north by Salvador
Rivero; on the East by Eleutera Pena; on the South by Bonifacio St., and on the West
by Carmen Giron;
2. A commercial building erected on the aforesaid parcel of land with an assessed
value of P126,000.00;
3. One-half (1/2) of the house located in Brgy. VI, Vigan City, Ilocos Sur[,] containing
an area of 2,257 sq. meters more or less, bounded on the north by Lot 1208; on the
east by Mestizo River; on the South by Lot 1217 and on the West by Lot 1211-B, 1212
and 1215.
4. The accumulated rentals of the new Vigan Coliseum in the amount of One Hundred
Thirty [Thousand] (P130,000.00) pesos per annum from the death of Dr. Mariano
Favis, Sr.8
Respondents interposed an appeal before the Court of Appeals challenging the trial courts
nullification, on the ground of vitiated consent, of the Deed of Donation in favor of herein
respondents. The Court of Appeals ordered the dismissal of the petitioners nullification case.
However, it did so not on the grounds invoked by herein respondents as appellant.
The Court of Appeals motu proprio ordered the dismissal of the complaint for failure of
petitioners to make an averment that earnest efforts toward a compromise have been made, as
mandated by Article 151 of the Family Code. The appellate court justified its order of dismissal
by invoking its authority to review rulings of the trial court even if they are not assigned as errors
in the appeal.
Petitioners filed a motion for reconsideration contending that the case is not subject to
compromise as it involves future legitime.
The Court of Appeals rejected petitioners contention when it ruled that the prohibited
compromise is that which is entered between the decedent while alive and compulsory heirs. In
the instant case, the appellate court observed that while the present action is between members
of the same family it does not involve a testator and a compulsory heir. Moreover, the appellate
court pointed out that the subject properties cannot be considered as "future legitime" but are in
fact, legitime, as the instant complaint was filed after the death of the decedent.
The base issue is whether or not the appellate court may dismiss the order of dismissal of the
complaint for failure to allege therein that earnest efforts towards a compromise have been
made. The appellate court committed egregious error in dismissing the complaint. The appellate
courts decision hinged on Article 151 of the Family Code, viz:
Art. 151. No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown that no such efforts were in fact made, the
case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the Civil
Code.
The appellate court correlated this provision with Section 1, par. (j), Rule 16 of the 1997 Rules of
Civil Procedure, which provides:

Undaunted by this legal setback, petitioners filed the instant petition raising the following
Section 1. Grounds. Within the time for but before filing the answer to the complaint or
arguments:
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

1. The Honorable Court of Appeals GRAVELY and SERIOUSLY ERRED in

xxxx
DISMISSING the COMPLAINT.

(j) That a condition precedent for filing the claim has not been complied with.
2. Contrary to the finding of the Honorable Court of Appeals, the verification of the
complaint or petition is not a mandatory requirement.
The appellate courts reliance on this provision is misplaced. Rule 16 treats of the grounds for a
motion to dismiss the complaint. It must be distinguished from the grounds provided under
3. The Honorable Court of Appeals seriously failed to appreciate that the filing of an
Section 1, Rule 9 which specifically deals with dismissal of the claim by the court motu proprio.
intervention by Edward Favis had placed the case beyond the scope of Article 151 of
Section 1, Rule 9 of the 1997 Rules of Civil Procedure provides:
the Family Code.

Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either
4. Even assuming arguendo without admitting that the filing of intervention by Edward
in a motion to dismiss or in the answer are deemed waived. However, when it appears from the
Favis had no positive effect to the complaint filed by petitioners, it is still a serious
pleadings or the evidence on record that the court has no jurisdiction over the subject matter,
error for the Honorable Court of Appeals to utterly disregard the fact that petitioners
that there is another action pending between the same parties for the same cause, or that the
had substantially complied with the requirements of Article 151 of the Family Code.
action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

5. Assuming arguendo that petitioners cannot be construed as complying substantially

with Article 151 of the Family Code, still, the same should be considered as a non-
issue considering that private respondents are in estoppel.
6. The dismissal of the complaint by the Honorable Court of Appeals amounts to grave
abuse of discretion amounting to lack and excess of jurisdiction and a complete
defiance of the doctrine of primacy of substantive justice over strict application of
technical rules.
7. The Honorable Court of Appeals gravely and seriuosly erred in not affirming the
decision of the Court a quo that the Deed of Donation is void.9
In their Comment, respondents chose not to touch upon the merits of the case, which is the
validity of the deed of donation. Instead, respondents defended the ruling the Court of Appeals
that the complaint is dismissible for failure of petitioners to allege in their complaint that earnest
efforts towards a compromise have been exerted.
Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss the
claim, namely: (a) lack of jurisdiction over the subject matter; (b) litis pendentia ; (c) res judicata ;
and (d) prescription of action.10Specifically in Gumabon v. Larin,11 cited in Katon v. Palanca,
Jr.,12 the Court held:
x x x [T]he motu proprio dismissal of a case was traditionally limited to instances when the court
clearly had no jurisdiction over the subject matter and when the plaintiff did not appear during
trial, failed to prosecute his action for an unreasonable length of time or neglected to comply with
the rules or with any order of the court. Outside of these instances, any motu proprio dismissal
would amount to a violation of the right of the plaintiff to be heard. Except for qualifying and
expanding Section 2, Rule 9, and Section 3, Rule 17, of the Revised Rules of Court, the
amendatory 1997 Rules of Civil Procedure brought about no radical change. Under the new
rules, a court may motu proprio dismiss a claim when it appears from the pleadings or evidence
on record that it has no jurisdiction over the subject matter; when there is another cause of
action pending between the same parties for the same cause, or where the action is barred by a
prior judgment or by statute of limitations. x x x.13
The error of the Court of Appeals is evident even if the consideration of the issue is kept within
the confines of the language of Section 1(j) of Rule 16 and Section 1 of Rule 9. That a condition
precedent for filing the claim has not been complied with, a ground for a motion to dismiss
emanating from the law that no suit between members from the same family shall prosper
unless it should appear from the verified complaint that earnest efforts toward a compromise
have been made but had failed, is, as the Rule so words, a ground for a motion to dismiss.
Significantly, the Rule requires that such a motion should be filed "within the time for but before
filing the answer to the complaint or pleading asserting a claim." The time frame indicates that
thereafter, the motion to dismiss based on the absence of the condition precedent is barred. It is
so inferable from the opening sentence of Section 1 of Rule 9 stating that defense and
objections not pleaded either in a motion to dismiss or in the answer are deemed waived. There
are, as just noted, only four exceptions to this Rule, namely, lack of jurisdiction over the subject
matter; litis pendentia ; res judicata ; and prescription of action. Failure to allege in the complaint
that earnest efforts at a compromise has been made but had failed is not one of the exceptions.
Upon such failure, the defense is deemed waived.
It was in Heirs of Domingo Valientes v. Ramas14 cited in P.L. Uy Realty Corporation v. ALS
Management and Development Corporation15 where we noted that the second sentence of
Section 1 of Rule 9 does not only supply exceptions to the rule that defenses not pleaded either
in a motion to dismiss or in the answer are deemed waived, it also allows courts to dismiss
cases motu propio on any of the enumerated grounds. The tenor of the second sentence of the
Rule is that the allowance of a motu propio dismissal can proceed only from the exemption from
the rule on waiver; which is but logical because there can be no ruling on a waived ground.
Why the objection of failure to allege a failed attempt at a compromise in a suit among members
of the same family is waivable was earlier explained in the case of Versoza v. Versoza,16 a case
for future support which was dismissed by the trial court upon the ground that there was no such
allegation of infringement of Article 222 of the Civil Code, the origin of Article 151 of the Family
Code. While the Court ruled that a complaint for future support cannot be the subject of a
compromise and as such the absence of the required allegation in the complaint cannot be a
ground for objection against the suit, the decision went on to state thus:
The alleged defect is that the present complaint does not state a cause of action. The proposed
amendment seeks to complete it. An amendment to the effect that the requirements of Article
222 have been complied with does not confer jurisdiction upon the lower court. With or without
this amendment, the subject-matter of the action remains as one for support, custody of
children, and damages, cognizable by the court below.
17
To illustrate, Tamayo v. San Miguel Brewery, Inc., allowed an amendment which " merely
corrected a defect in the allegation of plaintiff-appellants cause of action, because as it then
stood, the original complaint stated no cause of action." We there ruled out as inapplicable the
holding in Campos Rueda Corporation v. Bautista,18 that an amendment cannot be made so as
to confer jurisdiction on the court x x x. (Italics supplied).
Thus was it made clear that a failure to allege earnest but failed efforts at a compromise in a
complaint among members of the same family, is not a jurisdictional defect but merely a defect
in the statement of a cause of action. Versoza was cited in a later case as an instance
analogous to one where the conciliation process at the barangay level was not priorly resorted
to. Both were described as a "condition precedent for the filing of a complaint in Court." 19 In such
instances, the consequence is precisely what is stated in the present Rule. Thus:
x x x The defect may however be waived by failing to make seasonable objection, in a motion to
dismiss or answer, the defect being a mere procedural imperfection which does not affect the
jurisdiction of the court.20(Underscoring supplied).
In the case at hand, the proceedings before the trial court ran the full course. The complaint of
petitioners was answered by respondents without a prior motion to dismiss having been filed.
The decision in favor of the petitioners was appealed by respondents on the basis of the alleged
error in the ruling on the merits, no mention having been made about any defect in the statement
of a cause of action. In other words, no motion to dismiss the complaint based on the failure to
comply with a condition precedent was filed in the trial court; neither was such failure assigned
as error in the appeal that respondent brought before the Court of Appeals.
Therefore, the rule on deemed waiver of the non-jurisdictional defense or objection is wholly
applicable to respondent.1wphi1 If the respondents as parties-defendants could not, and did
not, after filing their answer to petitioners complaint, invoke the objection of absence of the
required allegation on earnest efforts at a compromise, the appellate court unquestionably did
not have any authority or basis to motu propio order the dismissal of petitioners complaint.
Indeed, even if we go by the reason behind Article 151 of the Family Code, which provision as
then Article 222 of the New Civil Code was described as "having been given more teeth"21 by
Section 1(j), Rule 16 of the Rule of Court, it is safe to say that the purpose of making sure that
there is no longer any possibility of a compromise, has been served. As cited in commentaries
on Article 151 of the Family Code
This rule is introduced because it is difficult to imagine a sudden and more tragic spectacle than
a litigation between members of the same family. It is necessary that every effort should be
made towards a compromise before a litigation is allowed to breed hate and passion in the
family. It is known that a lawsuit between close relatives generates deeper bitterness than
between strangers.22
The facts of the case show that compromise was never an option insofar as the respondents
were concerned. The impossibility of compromise instead of litigation was shown not alone by
the absence of a motion to dismiss but on the respondents insistence on the validity of the
donation in their favor of the subject properties. Nor could it have been otherwise because the
Pre-trial Order specifically limited the issues to the validity of the deed and whether or not
respondent Juana and Mariano are compulsory heirs of Dr. Favis. Respondents not only
confined their arguments within the pre-trial order; after losing their case, their appeal was based
on the proposition that it was error for the trial court to have relied on the ground of vitiated
consent on the part of Dr. Favis.
The Court of Appeals ignored the facts of the case that clearly demonstrated the refusal by the
respondents to compromise. Instead it ordered the dismissal of petitioners complaint on the
ground that it did not allege what in fact was shown during the trial. The error of the Court of
Appeals is patent.
Unfortunately for respondents, they relied completely on the erroneous ruling of the Court of
Appeals even when petitioners came to us for review not just on the basis of such defective
motu propio action but also on the proposition that the trial court correctly found that the
donation in question is flawed because of vitiated consent. Respondents did not answer this
argument. The trial court stated that the facts are:
x x x To determine the intrinsic validity of the deed of donation subject of the action for
annulment, the mental state/condition of the donor Dr. Mariano Favis, Sr. at the time of its
execution must be taken into account. Factors such as his age, health and environment among
others should be considered. As testified to by Dr. Mercedes Favis, corroborated by Dr. Edgardo
Alday and Dra. Ofelia Adapon, who were all presented as expert witnesses, Dr. Mariano Favis,
Sr. had long been suffering from Hiatal Hernia and Parkinsons disease and had been taking
medications for years. That a person with Parkinsons disease for a long time may not have a
good functioning brain because in the later stage of the disease, 1/3 of death develop from this
kind of disease, and or dementia. With respect to Hiatal Hernia, this is a state wherein organs in if it dealt only with procedure, is deemed to have covered all issues including the correctness of
the abdominal cavity would go up to the chest cavity, thereby occupying the space for the lungs the factual findings of the trial court. Moreover, remanding the case to the Court of Appeals
causing the lungs to be compromised. Once the lungs are affected, there is less oxygenation to would only constitute unwarranted delay in the final disposition of the case.
the brain. The Hernia would cause the heart not to pump enough oxygen to the brain and the
effect would be chronic, meaning, longer lack of oxygenation to the brain will make a person not
WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the
in full control of his faculties. Dr. Alday further testified that during his stay with the house of Dr.
Judgment of the Regional Trial Court of Vigan, Ilocos Sur, Branch 20 is AFFIRMED.
Mariano Favis, Sr. (1992-1994), he noticed that the latter when he goes up and down the stairs
will stop after few seconds, and he called this pulmonary cripple a very advanced stage
wherein the lungs not only one lung, but both lungs are compromised. That at the time he SO ORDERED.
operated on the deceased, the left and right lung were functioning but the left lung is practically
not even five (5%) percent functioning since it was occupied by abdominal organ. x x x.
JOSE PORTUGAL PEREZ
Associate Justice
Dr. Mariano Favis, Sr. during the execution of the Deed of Donation was already 92 years old;
living with the defendants and those years from 1993 to 1995 were the critical years when he
was sick most of the time. In short, hes dependent on the care of his housemates particularly
the members of his family. It is the contention of the defendants though that Dr. Mariano Favis,
Sr. had full control of his mind during the execution of the Deed of Donation because at that
time, he could go on with the regular way of life or could perform his daily routine without the aid
of anybody like taking a bath, eating his meals, reading the newspaper, watching television, go
to the church on Sundays, walking down the plaza to exercise and most importantly go to the
cockpit arena and bet. Dr. Ofelia Adapon, a neurology expert however, testified that a person
suffering from Parkinsons disease when he goes to the cockpit does not necessarily mean that
such person has in full control of his mental faculties because anyone, even a retarded person,
a person who has not studied and have no intellect can go to the cockpit and bet. One can do
everything but do not have control of his mind. x x x That Hiatal Hernia creeps in very insidiously,
one is not sure especially if the person has not complained and no examination was done. It
could be there for the last time and no one will know. x x x.

The Deed of Donation in favor of the defendants Ma. Theresa, Joana D. Favis, Maria Cristina D.
Favis, James Mark D. Favis and Maria Thea D. Favis, all of whom are the children of Mariano G.
Favis, Jr. was executed on [16 October] 1994, seven (7) months after Dra. Mercedes Favis left
the house of Dr. Favis, Sr. at Bonifacio St., Vigan City, Ilocos Sur, where she resided with the
latter and the defendants.

Putting together the circumstances mentioned, that at the time of the execution of the Deed of
Donation, Dr. Mariano Favis, Sr. was already at an advanced age of 92, afflicted with different
illnesses like Hiatal hernia, Parkinsons disease and pneumonia, to name few, which illnesses
had the effects of impairing his brain or mental faculties and the deed being executed only when
Dra. Mercedes Favis had already left his fathers residence when Dr. Mariano Favis, Sr. could
have done so earlier or even in the presence of Dra. Mercedes Favis, at the time he executed
the Deed of Donation was not in full control of his mental faculties. That although age of senility
varies from one person to another, to reach the age of 92 with all those medications and
treatment one have received for those illnesses, yet claim that his mind remains unimpaired,
would be unusual. The fact that the Deed of Donation was only executed after Dra. Mercedes
Favis left his father's house necessarily indicates that they don't want the same to be known by
the first family, which is an indicia of bad faith on the part of the defendant, who at that time had
influence over the donor.23

The correctness of the finding was not touched by the Court of Appeals. The respondents opted
to rely only on what the appellate court considered, erroneously though, was a procedural
infirmity. The trial court's factual finding, therefore, stands unreversed; and respondents did not
provide us with any argument to have it reversed.

The issue of the validity of donation was fully litigated and discussed by the trial court. Indeed,
the trial court's findings were placed at issue before the Court of Appeals but the appellate court
chose to confine its review to the procedural aspect. The judgment of the Court of Appeals, even
G.R. No. 148154 December 17, 2007
REPUBLIC OF THE PHILIPPINES, represented by the Presidential Commission on Good
Government (PCGG), petitioner,
vs.
SANDIGANBAYAN (Second Division) and FERDINAND R. MARCOS, JR. (as executor of
the estate of FERDINAND E. MARCOS), respondents.
RESOLUTION
QUISUMBING, J.:
The propriety of filing and granting of a motion for a bill of particulars filed for the estate of a
defaulting and deceased defendant is the main issue in this saga of the protracted legal battle
between the Philippine government and the Marcoses on alleged ill-gotten wealth.
This special civil action for certiorari1 assails two resolutions of the Sandiganbayan ("anti-graft
court" or "court") issued during the preliminary legal skirmishes in this 20-year case: 2 (1) the
January 31, 2000 Resolution3 which granted the motion for a bill of particulars filed by executor
Ferdinand R. Marcos, Jr. (respondent) on behalf of his father's estate and (2) the March 27,
2001 Resolution4 which denied the government's motion for reconsideration.
From the records, the antecedent and pertinent facts in this case are as follows:
The administration of then President Corazon C. Aquino successively sued former President
Ferdinand E. Marcos and former First Lady Imelda Romualdez-Marcos (Mrs. Marcos), and their
alleged cronies or dummies before the anti-graft court to recover the alleged ill-gotten wealth
that they amassed during the former president's 20-year rule. Roman A. Cruz, Jr. (Cruz), then
president and general manager of the Government Service Insurance System (GSIS); president
of the Philippine Airlines (PAL); chairman and president of the Hotel Enterprises of the
Philippines, Inc., owner of Hyatt Regency Manila; chairman and president of Manila Hotel
Corporation; and chairman of the Commercial Bank of Manila (CBM), is the alleged crony in this
case.
On July 21, 1987, the Presidential Commission on Good Government (PCGG), through the
Office of the Solicitor General, filed a Complaint5 for reconveyance, reversion, accounting,
restitution and damages alleging that Cruz and the Marcoses stole public assets and invested
them in several institutions here and abroad. Specifically, Cruz allegedly purchased, in
connivance with the Marcoses, assets whose values are disproportionate to their legal income,
to wit: two residential lots and two condominiums in Baguio City; a residential building in Makati;
a parcel of land and six condominium units in California, USA; and a residential land in Metro
Manila. The PCGG also prayed for the payment of moral damages of P50 billion and exemplary
damages of P1 billion.
On September 18, 1987, Cruz filed an Omnibus Motion to Dismiss, strike out averments in the
complaint, and for a bill of particulars.6
On April 18, 1988, the court ordered that alias summonses be served on the Marcoses who
were then in exile in Hawaii.7 The court likewise admitted the PCGG's Expanded
Complaint8 dated April 25, 1988, then denied Cruz's omnibus motion on July 28, 1988 after
finding that the expanded complaint sufficiently states causes of action and that the matters
alleged are specific enough to allow Cruz to prepare a responsive pleading and for trial. 9 On
September 15, 1988, Cruz filed his answer ad cautelam.10
On November 10, 1988, the alias summonses on the Marcoses were served at 2338 Makiki
Heights, Honolulu, Hawaii.11 The Marcoses, however, failed to file an answer and were
accordingly declared in default by the anti-graft court on April 6, 1989.12 In Imelda R. Marcos, et
al. v. Garchitorena, et al.,13 this Court upheld the validity of the Marcoses' default status for
failure to file an answer within 60 days from November 10, 1988 when the alias summonses
were validly served in their house address in Hawaii.
On September 29, 1989, former President Marcos died in Hawaii. He was substituted by his
estate, represented by Mrs. Marcos and their three children, upon the motion of the PCGG. 14
On July 13, 1992, Mrs. Marcos filed a Motion to Set Aside Order of Default,15 which was granted
by the anti-graft court on October 28, 1992.16 In Republic v. Sandiganbayan,17 this Court affirmed
the resolution of the anti-graft court, ruling that Mrs. Marcos had a meritorious defense, and that
failure of a party to properly respond to various complaints brought about by the occurrence of
circumstances which ordinary prudence could not have guarded against, such as being barred
from returning to the Philippines, numerous civil and criminal suits in the United States,
deteriorating health of her husband, and the complexities of her legal battles, is considered as
due to fraud, accident and excusable negligence.18
On September 6, 1995, Mrs. Marcos filed her answer,19 arguing that the former President
Marcos' wealth is not ill-gotten and that the civil complaints and proceedings are void for denying
them due process. She also questioned the legality of the PCGG's acts and asked for P20 billion
moral and exemplary damages and P10 million attorney's fees.
On January 11, 1999, after pre-trial briefs had been filed by Cruz, the PCGG, and Mrs. Marcos,
the court directed former President Marcos' children to appear before it or it will proceed with
pre-trial and subsequent proceedings.20
On March 16, 1999, respondent filed a Motion for Leave to File a Responsive Pleading as
executor of his late father's estate.21 The PCGG opposed the motion, citing as ground the
absence of a motion to set aside the default order or any order lifting the default status of former
President Marcos.22
On May 28, 1999, the court granted respondent's motion:
xxxx
The Court concedes the plausibility of the stance taken by the Solicitor General that
the default Order binds the estate and the executor for they merely derived their right,
if any, from the decedent. Considering however the complexities of this case, and so
that the case as against the other defendants can proceed smoothly as the stage
reached to date is only a continuation of the pre-trial proceedings, the Court, in the
interest of justice and conformably with the discretion granted to it under Section 3 of
Rule 9 of the Rules of Court hereby accords affirmative relief to the prayer sought in
the motion.
Accordingly, Ferdinand R. Marcos, Jr.[,] as executor of the [estate of] deceased
defendant Ferdinand E. Marcos[,] is granted a period of ten (10) days from receipt of
this Resolution within which to submit his Responsive Pleading.
x x x x23
Respondent asked for three extensions totaling 35 days to file an answer. The court granted the
motions and gave him until July 17, 1999 to file an answer. But instead of filing an answer,
respondent filed on July 16, 1999, a Motion For Bill of Particulars,24 praying for clearer
statements of the allegations which he called "mere conclusions of law, too vague and general to
enable defendants to intelligently answer."
The PCGG opposed the motion, arguing that the requested particulars were evidentiary matters;
that the motion was dilatory; and that it contravened the May 28, 1999 Resolution granting
respondent's Motion for Leave to File a Responsive Pleading.25
The anti-graft court, however, upheld respondent, explaining that the allegations against former
President Marcos were vague, general, and were mere conclusions of law. It pointed out that the
accusations did not specify the ultimate facts of former President Marcos' participation in Cruz's
alleged accumulation of ill-gotten wealth, effectively preventing respondent from intelligently
preparing an answer. It noted that this was not the first time the same issue was raised before it,
and stressed that this Court had consistently ruled in favor of the motions for bills of particulars
of the defendants in the other ill-gotten wealth cases involving the Marcoses.
The fallo of the assailed January 31, 2000 Resolution reads:
WHEREFORE, the defendant-movant's motion for bill of particulars is hereby GRANTED.
Accordingly, the plaintiff is hereby ordered to amend pars. 9 and Annex "A", 12 (a) to
(e), and 19 in relation to par-3 of the PRAYER, of the Expanded Complaint, to allege
the ultimate facts indicating the nature, manner, period and extent of participation of
Ferdinand E. Marcos in the acts referred to therein, and the amount of damages to be
proven during trial, respectively, within fifteen (15) days from receipt of this
resolution[.]
SO ORDERED. 26
Not convinced by petitioner's Motion for Reconsideration,27 the court ruled in the assailed March
27, 2001 Resolution that the motion for a bill of particulars was not dilatory considering that the
case was only at its pre-trial stage and that Section 1,28 Rule 12 of the 1997 Rules of Civil
Procedure allows its filing.
In urging us to nullify now the subject resolutions, petitioner, through the PCGG, relies on two
grounds:
i.
The motion for bill of particulars contravenes section 3, rule 9 of the 1997 rules [OF]
civil procedure.
ii.
29
The motion for bill of particulars is patently dilatory and bereft of any basis.
Invoking Section 3,30 Rule 9 of the 1997 Rules of Civil Procedure, petitioner argues that since
the default order against former President Marcos has not been lifted by any court order,
respondent cannot file a motion for a bill of particulars. Petitioner stresses that respondent did
not file a motion to lift the default order as executor of his father's estate; thus, he and the estate
cannot take part in the trial.
Petitioner also contends that respondent was granted leave to file an answer to the expanded
complaint, not a motion for a bill of particulars. The anti-graft court should not have accepted the
motion for a bill of particulars after he had filed a motion for leave to file responsive pleading and
three successive motions for extension as the motion for a bill of particulars is dilatory. Petitioner
insists that respondent impliedly admitted that the complaint sufficiently averred factual matters
with definiteness to enable him to properly prepare a responsive pleading because he was able
to prepare a draft answer, as stated in his second and third motions for extension. Petitioner
adds that the factual matters in the expanded complaint are clear and sufficient as Mrs. Marcos
and Cruz had already filed their respective answers.
Petitioner also argues that if the assailed Resolutions are enforced, the People will suffer
irreparable damage because petitioner will be forced to prematurely divulge evidentiary matters,
which is not a function of a bill of particulars. Petitioner maintains that paragraph 12,
subparagraphs a to e,31 of the expanded complaint "illustrate the essential acts pertaining to the
conspirational acts" between Cruz and former President Marcos. Petitioner argues that
respondent erroneously took out of context the phrase "unlawful concert" from the rest of the
averments in the complaint.
Respondent, for his part, counters that this Court had compelled petitioner in several ill-gotten
wealth cases involving the same issues and parties to comply with the motions for bills of
particulars filed by other defendants on the ground that most, if not all, of the allegations in the
similarly worded complaints for the recovery of alleged ill-gotten wealth consisted of mere
conclusions of law and were too vague and general to enable the defendants to intelligently
parry them.
Respondent adds that it is misleading for the Government to argue that the default order against
his father stands because the May 28, 1999 Resolution effectively lifted it; otherwise, he would
not have been called by the court to appear before it and allowed to file a responsive pleading.
He stresses that the May 28, 1999 Resolution remains effective for all intents and purposes
because petitioner did not file a motion for reconsideration.
Respondent likewise denies that his motion for a bill of particulars is dilatory as it is petitioner's
continued refusal to submit a bill of particulars which causes the delay and it is petitioner who is
"hedging, flip-flopping and delaying in its prosecution" of Civil Case No. 0006. His draft answer
turned out "not an intelligent" one due to the vagueness of the allegations. He claims that
petitioner's actions only mean one thing: it has no specific information or evidence to show his
father's participation in the acts of which petitioner complains.
In its Reply,32 petitioner adds that the acts imputed to former President Marcos were acts that
Cruz committed in conspiracy with the late dictator, and which Cruz could not have done without
the participation of the latter. Petitioner further argues that conspiracies need not be established
by direct evidence of the acts charged but by a number of indefinite acts, conditions and
circumstances.
In a nutshell, the ultimate issue is: Did the court commit grave abuse of discretion amounting to
lack or excess of jurisdiction in granting respondent's motion for a bill of particulars as executor
of former President Marcos' estates considering that the deceased defendant was then a
defaulting defendant when the motion was filed?
We rule in the negative, and dismiss the instant petition for utter lack of merit.
Under the Rules of Court, a defending party may be declared in default, upon motion and notice,
for failure to file an answer within the allowable period. As a result, the defaulting party cannot
take part in the trial albeit he is entitled to notice of subsequent proceedings. 33
The remedies against a default order are: (1) a motion to set aside the order of default at any
time after discovery thereof and before judgment on the ground that the defendant's failure to file
an answer was due to fraud, accident, mistake or excusable neglect and that the defendant has
a meritorious defense; (2) a motion for new trial within 15 days from receipt of judgment by
default, if judgment had already been rendered before the defendant discovered the default, but
before said judgment has become final and executory; (3) an appeal within 15 days from receipt
of judgment by default; (4) a petition for relief from judgment within 60 days from notice of
judgment and within 6 months from entry thereof; and (5) a petition for certiorari in exceptional
circumstances.34
In this case, former President Marcos was declared in default for failure to file an answer. He
died in Hawaii as an exile while this case was pending, since he and his family fled to Hawaii in
February 1986 during a people-power revolt in Metro Manila. His representatives failed to file a
motion to lift the order of default. Nevertheless, respondent, as executor of his father's estate,
filed a motion for leave to file a responsive pleading, three motions for extensions to file an
answer, and a motion for bill of particulars all of which were granted by the anti-graft court.
Given the existence of the default order then, what is the legal effect of the granting of the
motions to file a responsive pleading and bill of particulars? In our view, the effect is that the
default order against the former president is deemed lifted.
Considering that a motion for extension of time to plead is not a litigated motion but an ex
parte one, the granting of which is a matter addressed to the sound discretion of the court; that
in some cases we have allowed defendants to file their answers even after the time fixed for
their presentation; that we have set aside orders of default where defendants' failure to answer
on time was excusable; that the pendency of the motion for a bill of particulars interrupts the
period to file a responsive pleading; and considering that no real injury would result to the
interests of petitioner with the granting of the motion for a bill of particulars, the three motions for
extensions of time to file an answer, and the motion with leave to file a responsive pleading, the
anti-graft court has validly clothed respondent with the authority to represent his deceased
father. The only objection to the action of said court would be on a technicality. But on such
flimsy foundation, it would be erroneous to sacrifice the substantial rights of a litigant. Rules of
procedure should be liberally construed to promote their objective in assisting the parties obtain
a just, speedy and inexpensive determination of their case.35
While it is true that there was no positive act on the part of the court to lift the default order
because there was no motion nor order to that effect, the anti-graft court's act of granting
respondent the opportunity to file a responsive pleading meant the lifting of the default order on
terms the court deemed proper in the interest of justice. It was the operative act lifting the default
order and thereby reinstating the position of the original defendant whom respondent is
representing, founded on the court's discretionary power to set aside orders of default.
It is noteworthy that a motion to lift a default order requires no hearing; it need be under oath
only and accompanied by an affidavit of merits showing a meritorious defense.36 And it can be
filed "at any time after notice thereof and before judgment." Thus, the act of the court in
entertaining the motions to file a responsive pleading during the pre-trial stage of the
proceedings effectively meant that respondent has acquired a locusstandi in this case. That he
filed a motion for a bill of particulars instead of an answer does not pose an issue because he,
as party defendant representing the estate, is allowed to do so under the Rules of Court to be
able to file an intelligent answer. It follows that petitioner's filing of a bill of particulars in this case
is merely a condition precedent to the filing of an answer.
Indeed, failure to file a motion to lift a default order is not procedurally fatal as a defaulted party
can even avail of other remedies mentioned above.
As default judgments are frowned upon, we have been advising the courts below to be liberal in
setting aside default orders to give both parties every chance to present their case fairly without
resort to technicality.37 Judicial experience shows, however, that resort to motions for bills of
particulars is sometimes intended for delay or, even if not so intended, actually result in delay
since the reglementary period for filing a responsive pleading is suspended and the subsequent
proceedings are likewise set back in the meantime. As understood under Section 1 of Rule 12,
mentioned above, a motion for a bill of particulars must be filed within the reglementary period
for the filing of a responsive pleading to the pleading sought to be clarified. This contemplates
pleadings which arerequired by the Rules to be answered under pain of procedural sanctions,
such as default or implied admission of the facts not responded to.38
But as defaulted defendants are not actually thrown out of court because the Rules see to it that
judgments against them must be in accordance with the law and competent evidence, this Court
prefers that the lifting of default orders be effected before trial courts could receive plaintiffs'
evidence and render judgments. This is so since judgments by default may result in
considerable injustice to defendants, necessitating careful and liberal examination of the
grounds in motions seeking to set them aside. The inconvenience and complications associated
with rectifying resultant errors, if defendant justifies his omission to seasonably answer, far
outweigh the gain in time and dispatch of immediately trying the case. 39 The fact that former
President Marcos was in exile when he was declared in default, and that he later died still in
exile, makes the belated filing of his answer in this case understandably excusable.
The anti-graft court required the Marcos siblings through its January 11, 1999 Order 40 to
substitute for their father without informing them that the latter was already declared in default.
They were unaware, therefore, that they had to immediately tackle the matter of default.
Respondent, who stands as the executor of their father's estate, could assume that everything
was in order as far as his standing in court was concerned. That his motion for leave to file a
responsive pleading was granted by the court gave him credible reason not to doubt the validity
of his legal participation in this case. Coupled with his intent to file an answer, once his motion
for a bill of particulars is sufficiently answered by petitioner, the circumstances abovementioned
warrant the affirmation of the anti-graft court's actions now being assailed.
As to the propriety of the granting of the motion for a bill of particulars, we find for respondent as
the allegations against former President Marcos appear obviously couched in general terms.
They do not cite the ultimate facts to show how the Marcoses acted "in unlawful concert" with
Cruz in illegally amassing assets, property and funds in amounts disproportionate to Cruz's
lawful income, except that the former President Marcos was the president at the time.
The pertinent allegations in the expanded complaint subject of the motion for a bill of particulars
read as follows:
11. Defendant Roman A. Cruz, Jr. served as public officer during the Marcos
administration. During his . . . incumbency as public officer, he acquired assets, funds
and other property grossly and manifestly disproportionate to his salaries, lawful
income and income from legitimately acquired property.
12. . . . Cruz, Jr., in blatant abuse of his position as Chairman and General Manager of
the Government Service Insurance System (GSIS), as President and Chairman of the
Board of Directors of the Philippine Airlines (PAL), and as Executive Officer of the
Commercial Bank of Manila, by himself and/or in unlawful concert with defendants
Ferdinand E. Marcos and Imelda R. Marcos, among others:
(a) purchased through Arconal N.V., a Netherland-Antilles Corporation, a lot and
building located at 212 Stockton St., San Francisco, California, for an amount much
more than the value of the property at the time of the sale to the gross and manifest
disadvantageous (sic) to plaintiff.
GSIS funds in the amount of $10,653,350.00 were used for the purchase when under
the right of first refusal by PAL contained in the lease agreement with Kevin Hsu and
his wife, the owners of the building, a much lower amount should have been paid.
For the purchase of the building, defendant Cruz allowed the intervention of Sylvia
Lichauco as broker despite the fact that the services of such broker were not
necessary and even contrary to existing policies of PAL to deal directly with the seller.
The broker was paid the amount of $300,000.00 resulting to the prejudice of GSIS and
PAL.
(b) Converted and appropriated to . . . own use and benefit funds of the Commercial
Bank of Manila, of which he was Executive Officer at the time.
He caused the disbursement from the funds of the bank of among others, the amount
of P81,152.00 for personal services rendered to him by one Brenda Tuazon.
(c) Entered into an agency agreement on behalf of the Government Service Insurance
System with the Integral Factors Corporation (IFC), to solicit insurance, and effect
reinsurance on behalf of the GSIS, pursuant to which agreement, IFC effected a great
part of its reinsurance with INRE Corporation, which, was a non-insurance company
registered in London[,] with defendant . . . Cruz, Jr., as one of its directors.
IFC was allowed to service accounts emanating from government agencies like the
Bureau of Buildings, Philippine National Oil Corporation, National Power Corporation,
Ministry of Public Works and Highways which under the laws are required to insure
with and deal directly with the GSIS for their insurance needs. The intervention of IFC
to service these accounts caused the reduction of premium paid to GSIS as a portion
thereof was paid to IFC.
(d) Entered into an agreement with the Asiatic Integrated Corporation (AIC) whereby
the GSIS ceded, transferred, and conveyed property consisting of five (5) adjoining
parcels of land situated in Manila covered by Transfer Certificates of Title (TCT) Nos.
49853, 49854, 49855 and 49856 to AIC in exchange for AIC property known as the
Pinugay Estate located at Tanay, Rizal, covered by TCT No. 271378, under terms and
conditions grossly and manifestly disadvantageous to the government.
The appraised value of the GSIS parcels of land was P14,585,600.00 as of June 25,
1971 while the value of the Pinugay Estate was P2.00 per square meter or a total
amount of P15,219,264.00. But in the barter agreement, the Pinugay Estate was
valued at P5.50 per square meter or a total of P41,852,976.00, thus GSIS had to pay
AIC P27,287,976.00, when it was GSIS which was entitled to payment from AIC for its
failure to pay the rentals of the GSIS property then occupied by it.
(e) purchased three (4) (sic) additional Airbus 300 in an amount much more than the
market price at the time when PAL was in deep financial strain, to the gross and
manifest disadvantage of Plaintiff.
On October 29, 1979, defendant Cruz, as President and Chairman of the Board of
Directors of . . . (PAL) authorized the payment of non-refundable deposit of U.S.
$200,000.00 even before a meeting of the Board of Directors of PAL could deliberate
and approve the purchase.41
In his motion for a bill of particulars, respondent wanted clarification on the specific nature,
manner and extent of participation of his father in the acquisition of the assets cited above under
Cruz; particularly whether former President Marcos was a beneficial owner of these properties;
and the specific manner in which he acquired such beneficial control.
Also, respondent wanted to know the specific nature, manner, time and extent of support,
participation and collaboration of his father in (1) Cruz's alleged "blatant abuse" as GSIS
president and general manager, PAL president and chairman of the board, and executive officer
of the CBM; (2) the purchase of a lot and building in California using GSIS funds and Cruz's
allowing Lichauco as broker in the sale of the lot and building contrary to PAL policies; (3) Cruz's
appropriating to himself CBM funds; (4) Cruz's disbursement of P81,152 CBM funds for personal
services rendered to him by Tuazon; (5) Cruz's entering into an agency agreement for GSIS with
IFC to solicit, insure, and effect reinsurance of GSIS, as result of which IFC effected a great part
of its reinsurance with INRE Corporation, a London-registered non-insurance company, of which
Cruz was one of the directors; (6) Cruz's allowing IFC to service the accounts emanating from
government agencies which were required under the law to insure and deal directly with the
GSIS for their insurance needs; (7) the GSIS-AIC agreement wherein GSIS ceded and
conveyed to AIC five parcels of land in Manila in exchange for AIC's Pinugay Estate in Tanay,
Rizal; (8) PAL's purchase of three Airbus 300 jets for a higher price than the market price; and
(9) if former President Marcos was connected in any way to IFC and INRE Corporation.
Respondent likewise asked, what is the specific amount of damages demanded?
The 1991 Virata-Mapa Doctrine42 prescribes a motion for a bill of particulars, not a motion to
dismiss, as the remedy for perceived ambiguity or vagueness of a complaint for the recovery of
ill-gotten wealth,43 which was similarly worded as the complaint in this case. That doctrine
provided protective precedent in favor of respondent when he filed his motion for a bill of
particulars.
While the allegations as to the alleged specific acts of Cruz were clear, they were vague and
unclear as to the acts of the Marcos couple who were allegedly "in unlawful concert with" the
former. There was no factual allegation in the original and expanded complaints on the
collaboration of or on the kind of support extended by former President Marcos to Cruz in the
commission of the alleged unlawful acts constituting the alleged plunder. All the allegations
against the Marcoses, aside from being maladroitly laid, were couched in general terms. The
alleged acts, conditions and circumstances that could show the conspiracy among the
defendants were not particularized and sufficiently set forth by petitioner.
That the late president's co-defendants were able to file their respective answers to the
complaint does not necessarily mean that his estate's executor will be able to file an equally
intelligent answer, since the answering defendants' defense might be personal to them.
In dismissing this petition, Tantuico, Jr. v. Republic44 also provides us a cogent jurisprudential
guide. There, the allegations against former President Marcos were also conclusions of law
unsupported by factual premises. The particulars prayed for in the motion for a bill of particulars
were also not evidentiary in nature. In that case, we ruled that the anti-graft court acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in denying an alleged
crony's motion for a bill of particulars on a complaint with similar tenor and wordings as in the
case at bar.
Likewise we have ruled in Virata v. Sandiganbayan45 (1993) that Tantuico's applicability to that Carpio-Morales, Tinga, Velasco, Jr., Reyes* , JJ., concur.
case was "ineluctable," and the propriety of the motion for a bill of particulars under Section 1,
Rule 12 of the Revised Rules of Court was beyond dispute.46

In 1996, in the similar case of Republic v. Sandiganbayan (Second Division),47 we also affirmed
the resolutions of the Sandiganbayan granting the motion for a bill of particulars of Marcos'
alleged crony, business tycoon Lucio Tan.48

Phrases like "in flagrant breach of public trust and of their fiduciary obligations as public officers
with grave and scandalous abuse of right and power and in brazen violation of the Constitution
and laws," "unjust enrichment," "embarked upon a systematic plan to accumulate ill-gotten
wealth," "arrogated unto himself all powers of government," are easy and easy to read; they
have potential media quotability and they evoke passion with literary flair, not to mention that it
was populist to flaunt those statements in the late 1980s. But they are just that, accusations by
generalization. Motherhood statements they are, although now they might be a politically
incorrect expression and an affront to mothers everywhere, although they best describe the
accusations against the Marcoses in the case at bar.

In Justice Laurel's words, "the administration of justice is not a matter of guesswork."49 The
name of the game is fair play, not foul play. We cannot allow a legal skirmish where, from the
start, one of the protagonists enters the arena with one arm tied to his back.50 We must stress
anew that the administration of justice entails a painstaking, not haphazard, preparation of
pleadings.

The facile verbosity with which the legal counsel for the government flaunted the accusation of
excesses against the Marcoses in general terms must be soonest refurbished by a bill of
particulars, so that respondent can properly prepare an intelligent responsive pleading and so
that trial in this case will proceed as expeditiously as possible. To avoid a situation where its
pleadings may be found defective, thereby amounting to a failure to state a cause of action,
petitioner for its part must be given the opportunity to file a bill of particulars. Thus, we are
hereby allowing it to supplement its pleadings now, considering that amendments to pleadings
are favored and liberally allowed especially before trial.

Lastly, the allowance of the motion for a more definite statement rests with the sound discretion
of the court. As usual in matters of a discretionary nature, the ruling of the trial court will not be
reversed unless there has been a palpable abuse of discretion or a clearly erroneous
order.51 This Court has been liberal in giving the lower courts the widest latitude of discretion in
setting aside default orders justified under the right to due process principle. Plain justice
demands and the law requires no less that defendants must know what the complaint against
them is all about.52

What is important is that this case against the Marcoses and their alleged crony and dummy be
decided by the anti-graft court on the merits, not merely on some procedural faux pas. In the
interest of justice, we need to dispel the impression in the individual respondents' minds that
they are being railroaded out of their rights and properties without due process of law.

WHEREFORE, finding no grave abuse of discretion on the part of the Sandiganbayan in

granting respondent's Motion for Bill of Particulars, the petition is DISMISSED. The Resolutions
of the Sandiganbayan dated January 31, 2000 and March 27, 2001 in Civil Case No. 0006
are AFFIRMED. Petitioner is ordered to prepare and file a bill of particulars containing the
ultimate facts as prayed for by respondent within twenty (20) days from notice.

SO ORDERED.
G.R. No. L-58986 April 17, 1989
DANTE Y. GO, petitioner,
vs.
HON. FERNANDO CRUZ, Judge, etc., CITY SHERIFF OF CALOOCAN CITY, and
CALIFORNIA MANUFACTURING CO., INC., respondents.
De Santos, Balgos & Perez for petitioner.
Francisco N. Carreon, Jr. for respondents.
NARVASA, J.:
The dismissal of civil actions is always addressed to the sound judgment and discretion of the
court; this, whether the dismissal is sought after a trial has been completed or otherwise, 1 or
whether it is prayed for by a defending party 2 or by a plaintiff or claimant. 3 There is one
instance however where the dismissal of an action rests exclusively on the will of a plaintiff or
claimant, to prevent which the defending party and even the court itself is powerless, requiring in
fact no action whatever on the part of the court except the acceptance and recording of the
causative document. This is dealt with in Section 1, Rule 17 of the Rules of Court, which reads
as follows:
SECTION 1. Dismissal by the plaintiff. An action may be dismissed by
the plaintiff without order of court by filing a notice of dismissal at any time
before service of the answer or of a motion for summary judgment. Unless
otherwise stated in the notice, the dismissal is without prejudice, except that
a notice operates as an adjudication upon the merits when filed by a plaintiff
who has once dismissed in a competent court an action based on or
including the same claim. A class suit shall not be dismissed or
compromised without approval of the court.
It is this provision with which the proceedings at bar are chiefly concerned.
On October 26, 1981, California Manufacturing Co., Inc. (hereinafter, simply, California) brought
an action in the Court of First Instance of Manila against Dante Go, accusing him of unfair
competition. 4 The gravamen of California's complaint was that Dante Go, doing business under
the name and style of "Sugarland International Products," and engaged like California in the
manufacture of spaghetti, macaroni, and other pasta was selling his products in the open market
under the brand name, "Great Italian," in packages which were in colorable and deceitful
limitation of California's containers bearing its own brand, "Royal." Its complaint contained an
application for preliminary injunction commanding Dante Go to immediately cease and desist
from the further manufacture, sale and distribution of said products, and to retrieve those already
being offered for sale. 5
About two weeks later, however, or on November 12, 1981, California filed a notice of dismissal
with the Court reading as follows: 6
COMES NOW the plaintiff in the above-entitled case, through undersigned
counsel, and unto this Honorable Court most respectfully gives notice of
dismissal without prejudice pursuant to Sec. 1, Rule 17 of the Rules of
Court.
WHEREFORE, it is respectfully prayed that the above-entitled case be
considered dismissed without prejudice conformably with Sec. 1, Rule 17 of
the Rules of Court.
Four days afterwards, or on November 16, 1981, California received by registered mail a copy of
Dante Go's answer with counterclaim dated November 6, 1981, which had been filed with the
Court on November 9, 1981. 7
On November 19, 1981 a fire broke out at the Manila City Hall destroying among others
the sala of Judge Tengco and the records of cases therein kept, including that filed by California
against Dante Go. 8
On December 1, 1981, California filed another complaint asserting the same cause of action
against Dante Go, this time with the Court of First Instance at Caloocan City. 9 This second suit
was docketed as Civil Case No. C-9702 and was assigned to the branch presided over by Judge
Fernando A. Cruz.
On December 3, 1981, Judge Cruz issued an ex parte restraining order directing "the
defendant ... to immediately cease and desist from the further manufacture, sale, promotion and
distribution of spaghetti, macaroni and other pasta products contained in packaging boxes and
labels under the name 'GREAT ITALIAN,' which are similar to or copies of those of the plaintiff,
and ... recall ... all his spaghetti, macaroni and other pasta products using the brand, 'GREAT
ITALIAN.'" 10
On the day following the rendition of the restraining order, Dante Go filed the present petition
for certiorari, etc. with this Court praying for its nullification and perpetual inhibition. On
December 11, 1981, this Court, in turn issued a writ of preliminary injunction restraining
California, Judge Cruz and the City Sheriff from enforcing or implementing the restraining order
of December 3, 1981, and from continuing with the hearing on the application for preliminary
injunction in said Civil Case No. C-9702. The scope of the injunction was subsequently enlarged
by this Court's Resolution of April 14,1982 to include the City Fiscal of Manila, who was thereby
restrained from proceeding with the case of unfair competition filed in his office by California
against Dante Go. 11
Dante Go's thesis is that the case filed against him by California in the Manila Court remained
pending despite California's notice of dismissal. According to him, since he had already filed his
answer to the complaint before California sought dismissal of the action three (3) days
afterwards, such dismissal was no longer a matter of right and could no longer be effected by
mere notice in accordance with Section 1, Rule 17 of the Rules of Court, but only on plaintiff s
motion, and by order of the Court; hence, the Caloocan Court acted without jurisdiction over the
second action based on the same cause. He also accused California of forum shopping, of
selecting a sympathetic court for a relief which it had failed to obtain from another. 12
The petitioner is in error. What marks the loss by a plaintiff of the right to cause dismissal of the
action by mere notice is not the filing of the defendant's answer with the Court (either personally
or by mail) but the service on the plaintiff of said answer or of a motion for summary judgment.
This is the plain and explicit message of the Rules.13 "The filing of pleadings, appearances,
motions, notices, orders and other papers with the court," according to Section 1, Rule 13 of the
Rules of Court, means the delivery thereof to the clerk of the court either personally or by
registered mail. Service, on the other hand, signifies delivery of the pleading or other paper to
the parties affected thereby through their counsel of record, unless delivery to the party himself
is ordered by the court, 14 by any of the modes set forth in the Rules, i.e., by personal
service, 15 service by mail, 16 or substituted service. 17

Here, California filed its notice of dismissal of its action in the Manila Court after the filing of
Dante Go's answer but before service thereof. Thus having acted well within the letter and
contemplation of the afore-quoted Section 1 of Rule 17 of the Rules of Court, its notice ipso
facto brought about the dismissal of the action then pending in the Manila Court, without need of
any order or other action by the Presiding Judge. The dismissal was effected without regard to
whatever reasons or motives California might have had for bringing it about, and was, as the
same Section 1, Rule 17 points out, "without prejudice," the contrary not being otherwise "stated
in the notice" and it being the first time the action was being so dismissed.

There was therefore no legal obstacle to the institution of the second action in the Caloocan
Court of First Instance based on the same claim. The filing of the complaint invested it with
jurisdiction of the subject matter or nature of the action. In truth, and contrary to what petitioner
Dante Go obviously believes, even if the first action were still pending in the Manila Court, this
circumstance would not affect the jurisdiction of the Caloocan Court over the second suit. The
pendency of the first action would merely give the defendant the right to move to dismiss the
second action on the ground of auter action pendant or litis pendentia. 18

WHEREFORE, the petition is DISMISSED, with costs against petitioner. The temporary
restraining order of December 11, 1981, and the amendatory Resolution of April 14, 1982 are
SET ASIDE.

Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.