PBCOM VS. LIM

PBCOM VS. LIM AND CALDERON

GR. No. 158138

April 12, 2005

FACTS: PBCom filed a complaint against respondents in the RTC of Manila for the collection of a deficiency. Petitioner alleged therein that respondents obtained a loan from it and executed a continuing surety agreement in favor of petitioner for all loans, credits, etc that were extended or may be extended in the future to respondents. Petitioner granted a renewal of said loan upon respondent’s request. It was expressly stipulated threrein that the venue for any legal action that may arise out of said promissory note shall be Makati City, “to the exclusion of all other courts…” Respondents allegedly failed to pay said obligation upon maturity. Thus, petitioner foreclosed the real estate mortgage executed by respondents, leaving a deficiency balance.

Respondents moved to dismiss the complaint on the ground of improper venue, invoking the stipulation contained in the last paragraph of the promissory note with respect to the restrictive/exclusive venue.

The trial court denied said motion asseverating that petitioner had separate causes of action arising from the promissory note and the continuing surety agreement. Thus, [under] Rule 4, Section 2, of the 1997 Rules of Civil Procedure, as amended, x x x venue was properly laid in Manila.  An MR of said order was likewise denied.

On appeal, the CA ruled that respondents’ alleged debt was based on the Promissory Note, which had provided an exclusionary stipulation on venue “to the exclusion of all other courts.” The parties’ Surety Agreement, though silent as to venue, was an accessory contract that should have been interpreted in consonance with the Promissory Note. Hence, this Petition

ISSUE: WON the action against the sureties is covered by the restriction on venue stipulated in the PN

HELD: WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED.

YES; Since the cases pertaining to both causes of action are restricted to Makati City as the proper venue, petitioner cannot rely on Section 5 of Rule 2 of the Rules of Court.

**

Section 2 of Rule 4 of the ROC provides that personal actions must be commenced and tried

(1) in the place where the plaintiff resides, or

(2) where the defendant resides, or

(3) in case of non-resident defendants, where they may be found, at the choice of the plaintiff.

This rule on venue does not apply when the law specifically provides otherwise, or when — before the filing of the action — the contracting parties agree in writing on the exclusive venue thereof. Venue is not jurisdictional and may be waived by the parties. A stipulation as to venue does not preclude the filing of the action in other places, unless qualifying or restrictive words are used in the agreement.

**

In enforcing a surety contract, the “complementary-contracts-construed-together” doctrine finds application. According to this principle, an accessory contract must be read in its entirety and together with the principal agreement^[  This principle is used in construing contractual stipulations in order to arrive at their true meaning; certain stipulations cannot be segregated and then made to control. This no-segregation principle is based on Article 1374 of the Civil Code, which we quote:

“Art. 1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly.”

The aforementioned doctrine is applicable to the present case. Incapable of standing by itself, the SA can be enforced only in conjunction with the PN.  The latter documents the debt that is sought to be collected in the action against the sureties. The circumstances that related to the issuance of the PN and the SA are so intertwined that neither one could be separated from the other.  It makes no sense to argue that the parties to the SA were not bound by the stipulations in the PN.

NOTES:

A cause of action is a party’s act or omission that violates the rights of the other. Only one suit may be commenced for a single cause of action. If two or more suits are instituted on the basis of the same cause of action, only one case should remain and the others must be dismissed.

CRISOLOGO-JOSE VS. LBP

CRISOLOGO-JOSE VS. LBP

GR. 167399

June 22, 2006

FACTS: Petitioner is the owner of hectares of land which used to form part of a larger expanse situated in Talavera, Nueva Ecija and covered by a TCT. She is also the owner of several parcels of land situated in the same municipality and covered by 12 separate titles. According to the petitioner, respondent Land Bank of the Philippines (LBP) gave these landholdings – which she inherited from her uncle Lim – a measly valuation of P9,000.00 per hectare (regarding implementation of the agrarian reform program which partakes of the exercise of the power of eminent domain)

Excepting from the valuation purportedly thus given, petitioner filed, a PETITION for determination of just compensation respecting her landholdings aforementioned.

It appears that in the midst of petitioner’s presentation of her evidence, the trial court admitted LBP’s ANSWER.The trial court, after due proceedings, rendered judgment fixing the fair market value of the land in question.

Following the denial of its MR, respondent LBP  went on appeal to the CA. Eventually, the CA reversed that of the trial court. In time, petitioner moved for reconsideration but the CA denied her motion. Hence this petition for review under Rule 45, on both procedural and substantive grounds.

ISSUE: WON the CA erred in admitting respondent’s answer

HELD: The petition is without merit

NO

On the procedural angle, petitioner faults the appellate court for relying on and lending credence to the allegations and defenses that respondent averred in its answer which it filed beyond the 15-day period prescribed under Section 1, Rule 11 of the ROC. Petitioner also blames the trial court for admitting, instead of expunging from the records, said answer and for not declaring the respondent in default.

To admit or to reject an answer filed after the prescribed period is addressed to the sound discretion of the court. In fact, Section 11, Rule 11 of the Rules authorizes the court to accept answer though filed late, thus:

SECTION. 11. Extension of time to plead. – Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules.

The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules.

And as Indiana Aerospace University vs. Commission on Higher Education teaches, an answer should be admitted where it had been filed before the defendant was declared in default and no prejudice is caused to the plaintiff, as here. Indeed, petitioner has not demonstrated how the admission by the trial court of respondent’s answer was prejudicial to her case which, at bottom, involves only the determination of the fair market value of her property.

Given Indiana Aerospace and other related cases cited therein virtually all of which is one in saying that default orders should be avoided, petitioner’s lament about the trial court not declaring the respondent in default for alleged belated filing of answer should be denied cogency.

What is more, a declaration of default, if proper, shall not issue unless the claiming party asked for it. As we said in Trajano vs. Cruz, applying what is now Section 3, Rule 9 of the Rules of Court “the court cannot motu proprio declare a party in default.” In the words of Justice Regalado “there must be a motion [for a declaration of default] by the plaintiff with proof of failure by the defendant to file his responsive pleading despite due notice.”

Not lost on the Court, of course, is the fact that petitioner, after securing the desired ruling from the trial court, never brought up the matter of respondent’s belated filing of an answer before the CA. Needless to belabor, issues not raised below cannot, as a rule, be raised for the first time before the Court.

GSIS vs. Velasco

GSIS vs. Velasco and Molina

GR. No. 170463

Feb. 2, 2011

FACTS: Petitioners charged respondents administratively with grave misconduct and placed them under preventive suspension for 90 days, for their alleged participation in a demonstration held by GSIS employees. In a letter, respondent Molina requested the GSIS Senior Vice President for the implementation of his step increment.  The SVP denied the request citing GSIS Board Resolution No. 372 issued by petitioner GSIS Board which approved the new GSIS salary structure, its implementing rules and regulations, and the adoption of the supplemental guidelines on step increment and promotion.

Respondents also asked that they be allowed to avail of the employee privileges under GSIS Board Resolution No. 306 approving Christmas raffle benefits for all GSIS officials and employees. Respondents’ request was again denied because of their pending administrative case.

Later, petitioner GSIS Board issued Resolution No. 197 approving the following policy recommendations:

B. On the disqualification from promotion of an employee with a pending administrative case

To adopt the policy that an employee with pending administrative case shall be disqualified from the following during the pendency of the case:

a) Promotion;

b) Step Increment;

xx

Respondents filed before the trial court a petition for prohibition with prayer for a writ of preliminary injunction (Civil Case No. 03-108389). Respondents claimed that they were denied the benefits which GSIS employees were entitled under Resolution No. 306. Respondents also sought to restrain and prohibit petitioners from implementing Resolution Nos. 197 and 372.

The trial court granted respondents’ petition for prohibition. Petitioners filed an MR. The trial court denied petitioners’ motion, hence, this petition.

ISSUE:

1. 1.         Whether the jurisdiction over the subject matter of Civil Case No. 03-108389 (lies with the CSC and not with the RTC of Manila, Branch 19.
2. 2.         Whether a Special Civil Action for Prohibition against the GSIS Board or its President and General Manager exercising quasi-legislative and administrative functions in Pasay City is outside the territorial jurisdiction of RTC-Manila, Branch 19.

HELD: WHEREFORE, we DENY the petition

Petitioners argue that the CSC, not the trial court, has jurisdiction over Civil Case No. 03-108389 because it involves claims of employee benefits. Petitioners point out that the trial court should have dismissed the case for lack of jurisdiction.

Sections 2 and 4, Rule 65 of the Rules of Court provide:

Sec. 2. Petition for Prohibition. – When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

Sec. 4. Where petition filed. – The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the SC or, if it related to acts or omissions of a lower court or of a corporation, board, officer or person in the RTC exercising jurisdiction over the territorial area as defined by the SC. It may also be filed in the CA whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the CA. (Emphasis supplied)

Civil Case No. 03-108389 is a petition for prohibition with prayer for the issuance of a writ of preliminary injunction. Respondents prayed that the trial court declare all acts emanating from Resolution Nos. 372, 197, and 306 void and to prohibit petitioners from further enforcing the said resolutions. Therefore, the trial court, not the CSC, has jurisdiction over respondents’ petition for prohibition.

1. Petitioners also claim that the petition for prohibition was filed in the wrong territorial jurisdiction because the acts sought to be prohibited are the acts of petitioners who hold their principal office in Pasay City, while the petition for prohibition was filed in Manila.

Section 18 of BP 129 provides:

SEC. 18. Authority to define territory appurtenant to each branch. – The Supreme Court shall define the territory over which a branch of the RTC shall exercise its authority. The territory thus defined shall be deemed to be the territorial area of the branch concerned for purposes of determining the venue of all suits, proceedings or actions, whether civil or criminal, as well as determining the MeTCs, MTCs, and MCTCs over which the said branch may exercise appellate jurisdiction. The power herein granted shall be exercised with a view to making the courts readily accessible to the people of the different parts of the region and making attendance of litigants and witnesses as inexpensive as possible. (Emphasis supplied)

In line with this, the SC issued Administrative Order No. 3 defining the territorial jurisdiction of the RTCs in the National Capital Judicial Region, as follows:

a. Branches I to LXXXII, inclusive, with seats at Manila – over the City of Manila only.

b. Branches LXXXIII to CVII, inclusive, with seats at Quezon City – over Quezon City only.

c. Branches CVIII to CXIX, inclusive, with seats at Pasay City – over Pasay City only.

xx

The petition for prohibition filed by respondents is a special civil action which may be filed in the SC, the CA, the Sandiganbayan or the RTC, as the case may be. It is also a personal action because it does not affect the title to, or possession of real property, or interest therein. Thus, it may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, at the election of the plaintiff. Since respondent Velasco, plaintiff before the trial court, is a resident of the City of Manila, the petition could properly be filed in the City of Manila. The choice of venue is sanctioned by Section 2, Rule 4 of the Rules of Court.

Moreover, Section 21(1) of BP 129 provides:

Sec. 21. Original jurisdiction in other cases. – RTCs shall exercise original jurisdiction:

(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, which may be enforced in any part of their respective regions; x x x (Emphasis supplied)

Since the National Capital Judicial Region is comprised of the cities of Manila, Quezon, Pasay, Caloocan, Malabon, Mandaluyong, Makati, Pasig, Marikina, Parañaque, Las Piñas, Muntinlupa, and Valenzuela and the municipalities of Navotas, San Juan, Pateros, and Taguig, a writ of prohibition issued by the RTC sitting in the City of Manila, is enforceable in Pasay City. Clearly, the RTC did not err when it took cognizance of respondents’ petition for prohibition because it had jurisdiction over the action and the venue was properly laid before it.

Russel vs. Ebasan

Russel vs. Ebasan & Austria

G.R. No. 184542

April 23, 2010

 

FACTS: The petition stems from a complaint for forcible entry filed by petitioner Russel against respondents Ebasan and Austria. The MTCC of Iligan City heard the ejectment proceedings and rendered judgment on in favor of petitioner. The trial court ordered respondents to vacate the property involved and to pay attorney’s fees and costs.Prejudiced by the ruling, respondents appealed to the RTC. The RTC, in its March 28, 2007 Decision, reversed the ruling of the MTCC and ordered the dismissal of the complaint.

Petitioner received her copy of the RTC decision on April 13, 2007. Inclined to appeal the adverse ruling to the CA, petitioner, on April 20, 2007, filed a motion for an extension of 15 days from the expiry of the reglementary period for the filing of a petition for review. Petitioner attached to her motion postal money orders representing the filing and docket fees. She consequently filed via registered mail her petition for review with the appellate court on May 15, 2007.

In the assailed June 18, 2007 Resolution, the CA dismissed the appeal on the following grounds:

1.      The petition is filed out of time, in violation of Sec. 1, Rule 42. Even if petitioner’s Motion for Extension of Time to File Petition for Review were granted, the Petition would have still been filed 6 days late from the requested extension of time.

2.      There is no Written Explanation why the Petition was filed by mail instead of the preferred mode of personal filing, as is required under Sec. 11, Rule 13.

3.      The Verification and Certification page is defective, since there is no statement and therefore no assurance that the allegations in the Petition are based on authentic records, in violation of Sec. 4, Rule 7.

4.      Pertinent documents such as the Complaint and Answer filed before the MTCC, which are material portions of the record referred to in the Petition are not attached, in violation of Sec. 2(d), Rule 42.

Petitioner received her copy of the June 18, 2007 Resolution on July 18, 2007. On July 27, 2007, petitioner filed by registered mail her MR and admission of her amended petition. She pointed out in her motion that the petition was filed within the extended reglementary period. She also explained that her office clerk inadvertently failed to attach the page containing the explanation why filing by registered mail was resorted to. Petitioner also begged the appellate court’s indulgence to accept the verification because only the phrase “based on authentic records” was missing in the same. She claimed that this was merely a formal requisite which does not affect the validity or efficacy of the pleading. She then pleaded for liberality in the application of the rules of procedure and for the consequent admission of her amended petition containing the written explanation, the corrected verification, and the certified true copies of the complaint and the answer filed before the trial court.

The appellate court, however, in the assailed August 26, 2008 Resolution, denied petitioner’s motion. It ruled that the MR was filed only on October 4, 2007, or 63 days after the expiry of the reglementary period for the filing thereof. Aggrieved, petitioner elevated the matter to this Court via the instant petition for review on certiorari.

ISSUE: WON the CA erred in dismissing petitioner’s appeal.

 

HELD: WHEREFORE, premises considered, the petition is GRANTED. The instant case is REMANDED to the CA for disposition on the merits.

YES; Petitioner’s petition for review (under Rule 42) and MR before the appellate court were filed well within the reglementary period for the filing thereof.

It must be noted that petitioner received her copy of the RTC decision on April 13, 2007. Following the ROC, she had 15 days or until April 28, 2007 to file her petition for review before the CA. Section 1 of Rule 42 provides:

Sec. 1. How appeal taken; time for filing.—A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

On April 20, 2007, petitioner filed before the CA, via registered mail, her motion for extension of time to file the petition for review. She pleaded in her motion that she be granted an additional 15 days, counted from the expiry of the reglementary period. Petitioner likewise attached to her motion postal money orders representing the docket fees.

Fifteen days from April 28, 2007 would be May 13, 2007. This was, however, a Sunday. May 14, 2007, the following day, was a legal holiday—the holding of the national and local elections. Section 1 of Rule 22 states:

Sec. 1. How to compute time.—In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day.

Therefore, when petitioner filed her petition for review with the appellate court on May 15, 2007, the same was well within the extended period for the filing thereof.

Petitioner’s MR was likewise filed on time.  She received a copy of the June 18, 2007 CA Resolution on July 18, 2007. Under Section 1 of Rule 52, she had 15 days from notice, or until August 2, 2007, to file an MR.  Petitioner filed by registered mail her MR on July 27, 2007. The fact of mailing on the said date is proven by the registry return receipt, the affidavit of service, and the certification of the Office of the Postmaster of Iligan City. Section 3, Rule 13 of the ROC provides that if a pleading is filed by registered mail, then the date of mailing shall be considered as the date of filing.  It does not matter when the court actually receives the mailed pleading. Thus, in this case, as the pleading was filed by registered mail on July 27, 2007, within the reglementary period, it is inconsequential that the CA actually received the motion in October of that year.

As to the CA’s dismissal of the petition for review on the ground that petitioner failed to attach a written explanation for non-personal filing, the Court finds the same improper. Iligan City, where petitioner resides and where her counsel holds office, and Cagayan de Oro City, where the concerned division of the CA is stationed, are separated by a considerable distance. The CA, in the exercise of its discretion, should have realized that it was indeed impracticable for petitioner to personally file the petition for review in Cagayan De Oro City. Given the obvious time, effort and expense that would have been spent in the personal filing of the pleadings in this case, the written explanation why service had not been done personally, as required by Section 11 of Rule 13, may be considered as superfluous.

Relative to the defective verification, the Court excuses the same. The purpose of the verification is to secure an assurance that the allegations in the petition have been made in good faith, or are true and correct and not merely speculative. The requirement is simply a condition affecting the form of pleadings and non-compliance therewith is neither jurisdictional nor does it render the pleading fatally defective. Here, the perceived defect is excusable and does not justify a dismissal of the petition. In any case, petitioner, in her subsequent pleading, submitted a corrected verification. The same degree of liberality should apply to petitioner’s failure to attach a copy of the complaint and answer filed before the MTCC in her petition for review. After all, petitioner substantially complied with the requirement when she filed her amended petition.

In sum, the Court finds that the CA erred in dismissing petitioner’s appeal. The appellate court should have been more prudent in computing the reglementary period for the filing of petitions. The CA could have been more liberal in the application of the Rules considering that, in this case, the MTCC and the RTC arrived at conflicting rulings, necessitating a thorough review of the merits of the case. This is in keeping with the principle that rules of procedure are mere tools designed to facilitate the attainment of justice and that strict and rigid application of rules which would result in technicalities that tend to frustrate rather than promote substantial justice must always be avoided. It is a far better and wiser course of action for the Court to excuse a technical lapse and afford the parties a conscientious review of the case in order to attain the ends of justice, rather than dispose of it on a technicality and cause grave injustice to the parties, giving a false impression of speedy disposal of cases which actually results in more delay, if not in an outright miscarriage of justice

Sheker vs. Sheker

Sheker vs. Sheker

G.R. No. 157912

December 13, 2007

FACTS:  The RTC admitted to probate the holographic will of Alice Sheker and thereafter issued an order for all the creditors to file their respective claims against the estate.  In compliance therewith, petitioner filed on a contingent claim for agent’s commission due him in the event of the sale of certain parcels of land belonging to the estate, and reimbursement for expenses incurred and/or to be incurred by petitioner in the course of negotiating the sale of said realties.

The executrix of the Estate of Alice Sheker (MEDINA) moved for the dismissal of said money claim against the estate on the grounds that (1) the requisite docket fee, as prescribed in Section 7(a), Rule 141 of the Rules of Court, had not been paid; (2) petitioner failed to attach a certification against non-forum shopping; and (3) petitioner failed to attach a written explanation why the money claim was not filed and served personally.

The RTC-Iligan City issued the assailed Order dismissing without prejudice the money claim based on the grounds advanced by respondent.  Petitioner’s MR was denied.Petitioner then filed the present petition for review on certiorari.

Petitioner maintains that the RTC erred in strictly applying to a probate proceeding the rules requiring a certification of non-forum shopping, a written explanation for non-personal filing, and the payment of docket fees upon filing of the claim.  He insists that Section 2, Rule 72 of the ROC provides that rules in ordinary actions are applicable to special proceedings only in a suppletory manner. 

[The Court gave due course to the petition for review on certiorari although directly filed with this Court, pursuant to Section 2(c), Rule 41 of the ROC]- note lang^^

 ISSUE:

(a)        must a contingent claim filed in the probate proceeding contain a certification against non-forum shopping, failing which such claim should be dismissed?

(b)        must a contingent claim filed against an estate in a probate proceeding be dismissed for failing to pay the docket fees at the time of its filing thereat?

(a)        must THE contingent claim filed in a probate proceeding be dismissed because of its failure to contain a written explanation on the service and filing by registered mail?

HELD: WHEREFORE, the petition is GRANTED.  The Orders of the RTC are REVERSED  and  SET  ASIDE.  The RTC is hereby DIRECTED to give due course and take appropriate action on petitioner’s money claim in accordance with Rule 82 of the ROC.

It must be emphasized that petitioner’s contention that rules in ordinary actions are only supplementary to rules in special proceedings is not entirely correct.  Section 2, Rule 72, Part II of the same ROC provides:

Sec. 2.  Applicability of rules of Civil Actions. – In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

Stated differently, special provisions under Part II of the ROC govern special proceedings; but in the absence of special provisions, the rules provided for in Part I of the Rules governing ordinary civil actions shall be applicable to special proceedings, as far as practicable.

The word “practicable” is defined as: possible to practice or perform; capable of being put into practice, done or accomplished.  This means that in the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. Nowhere in the ROC does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings.  Provisions of the ROC requiring a certification of non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person as in the present case.

—

(a)  NO; The certification of non-forum shopping is required only for complaints and other initiatory pleadings.  The RTC erred in ruling that a contingent money claim against the estate of a decedent is an initiatory pleading.  In the present case, the whole probate proceeding was initiated upon the filing of the petition for allowance of the decedent’s will.  Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims; otherwise, they would be barred, subject to certain exceptions.

Such being the case, a money claim against an estate is more akin to a motion for creditors’ claims to be recognized and taken into consideration in the proper disposition of the properties of the estate.  In Arquiza v. Court of Appeals,^[6] the Court explained thus:

x x The office of a motion is not to initiate new litigation, but to bring a material but incidental matter arising in the progress of the case in which the motion is filed. A motion is not an independent right or remedy, but is confined to incidental matters in the progress of a cause. It relates to some question that is collateral to the main object of the action and is connected with and dependent upon the principal remedy.xx

A money claim is only an incidental matter in the main action for the settlement of the decedent’s estate; more so if the claim is contingent since the claimant cannot even institute a separate action for a mere contingent claim.  Hence, herein petitioner‘s contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping.

(b)  NO; On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals^[ that the trial court has jurisdiction to act on a money claim (attorney’s fees) against an estate for services rendered by a lawyer to the administratrix to assist her in fulfilling her duties to the estate even without payment of separate docket fees because the filing fees shall constitute a lien on the judgment pursuant to Section 2, Rule 141 of the ROC, or the trial court may order the payment of such filing fees within a reasonable time. After all, the trial court had already assumed jurisdiction over the action for settlement of the estate.  Clearly, therefore, non-payment of filing fees for a money claim against the estate is not one of the grounds for dismissing a money claim against the estate.

(c)  NO; With regard to the requirement of a written explanation, Maceda v. De Guzman Vda. de Macatangay is squarely in point.  Therein, the Court held thus:

In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of Rule 13 of the Rules of Court, held that a court has the discretion to consider a pleading or paper as not filed if said rule is not complied with.

Personal service and filing are preferred for obvious reasons.  Plainly, such should expedite action or resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal service.  Likewise, personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that the registered mail containing the pleading of or other paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such pleading or other papers.

If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to consider a pleading or paper as not filed if the other modes of service or filing were not resorted to and no written explanation was made as to why personal service was not done in the first place.  The exercise of discretion must, necessarily consider the practicability of personal service, for Section 11 itself begins with the clause “whenever practicable”.

We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception.  Henceforth, whenever personal service or filing is practicable, in the light of the circumstances of time, place and person, personal service or filing is mandatory.   Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with.  In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11.

In the present case, petitioner holds office in Salcedo Village, Makati City, while counsel for respondent and the RTC which rendered the assailed orders are both in Iligan City.  The lower court should have taken judicial notice of the great distance between said cities and realized that it is indeed not practicable to serve and file the money claim personally.  Thus, following Medina v. Court of Appeals.  the failure of petitioner to submit a written explanation why service has not been done personally, may be considered as superfluous and the RTC should have exercised its discretion under Section 11, Rule 13, not to dismiss the money claim of petitioner, in the interest of substantial justice.

The RTC should have relaxed and liberally construed the procedural rule on the requirement of a written explanation for non-personal service, again in the interest of substantial justice.

FERRER vs. VILLANUEVA

FERRER vs. VILLANUEVA et al

G.R. No. 155025

August 24, 2007

FACTS: Ferrer is the president and GM of Odin Security Agency, Inc. (Odin), a private corporation engaged in providing security and watchman services. Sometime in August 1999, Odin was one of the bidders for the PICC security services.

Later, the Prequalification, Bidding and Awards Committee (PBAC) of the PICC disqualified Odin from further participating in the bidding due to the results of a survey among its clients showing that it has not rendered a “very satisfactory performance.”Petitioner sought reconsideration of the PBAC ruling and requested that he be furnished the names of the informants.  However, the PBAC refused to divulge their names on the ground of confidentiality.

Petitioner then filed with the Ombudsman a complaint for violation of Republic Act No. 6713 against the members of the PBAC of the PICC. The Ombudsman dismissed the complaint for lack of substantial evidence. Petitioner filed an MR, but was denied.

Petitioner filed a petition for certiorari (RULE 65) with the CA, but it was dismissed, thus:

There being no proof of service on the private respondents and the agency a quo as required under Sec. 13, Rule 13 of the 1997 Rules of Civil Procedure and as the petition is not accompanied with copies of all pleadings (such as Joint Counter-Affidavit) and documents relevant and pertinent thereto. xx

Petitioner timely filed an MR but the CA denied the same, thus:  x x x

An examination of the records shows that even in the said motion, petitioner still failed to attach the required affidavit of service of the petition. What was attached only was the affidavit of service of the motion . Further, the petition is still fatally flawed because other relevant and pertinent documents, such as the joint counter-affidavit, were not appended to the motion as required under par. 3, Sec. 3, Rule 46 of the 1997 Rules of Civil Procedure.

xx

Hence, the instant petition for Review on Certiorari (RULE 45)

ISSUE: WON the CA erred in dismissing the petition for CERTIORARI for petitioner’s failure to comply with Section 13, Rule 13 of the 1997 Rules of Civil Procedure, as amended.

 HELD: WHEREFORE, we DENY the petition

 NO

Section 13, Rule 13 of the 1997 Rules of Civil Procedure, as amended, provides:

SEC. 13. Proof of service. – Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place, and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender,or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

There is no question that petitioner herein was remiss in complying with the foregoing Rule.  In Cruz v. Court of Appeals we ruled that with respect to motions, proof of service is a mandatory requirement. We find no cogent reason why this dictum should not apply and with more reason to a petition for certiorari, in view of Section 3, Rule 46 which requires that the petition shall be filed “together with proof of service thereof.”

In the instant case, we find no persuasive reason to relax the Rule. Moreover, even if we do so, petitioner’s failure to attach the material and relevant documents to his petition filed with the CA is a sufficient ground to dismiss it.  The second paragraph of Section 1, Rule 65 of the same Rules clearly states:

SEC. 1. Petition for certiorari. – x x x

The petition shall be accompanied by a certified true copy of the judgment, order, or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46.

The foregoing Rule should be read in relation with Section 3, Rule 46, thus:

SEC. 3. Contents and filing of petition; effect of non-compliance with requirements.-   xx

It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, andshall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as are referred to therein, and other documents relevant or pertinent thereto. x x x

The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition.

Petitioner should have attached to his petition material portions of the record, such as the Joint Counter-Affidavit of respondents herein and other supporting documents. For without those supporting documents, petitioner’s allegations in his petition in are nothing but bare allegations. Verily, we sustain the questioned Resolutions of the CA.

NOTES: Republic Act No. 6713–February 20, 1989– AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONORED PRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES AND REWARDS FOR EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS AND TRANSACTIONS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF AND FOR OTHER PURPOSES

JOHNSON & JOHNSON vs. CA

JOHNSON & JOHNSON (PHILS.) INC.,  vs. CA and VINLUAN

G.R. No. 99434

September 24, 1991

FACTS: The petitioner is questioning the resolution issued by the respondent court on March 12, 1991, reading as follows:

Considering that the copy of the resolution dated November 29, 1990 served upon counsel for respondent [herein petitioner]  was returned unclaimed … and afterwards the same copy sent to the private respondent itself … was likewise returned unclaimed … the Court RESOLVED to DECLARE service of the said resolution upon the private respondent complete … pursuant to Sec. 8, Rule 13, Rules of Court.

The private respondent submits that the petitioner was correctly deemed to have been properly served with the copy of the resolution dated November 29, 1990, after its counsel failed to claim his mail from the post office within 5 days from the date of the first registry notice. Under Section 8, of Rule 13 of the Rules of Court:

Sec. 8. Completeness of service. — Personal service is complete upon delivery Service by ordinary mail is complete upon the expiration of five (5) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time.

ISSUE: WON the CA erred in ruling that the petitioner had been duly served with a copy of the questioned resolution despite the lack of sufficient evidence to support this conclusion

 HELD: Accordingly, its resolutions dated March 12, 1991… are SET ASIDE . The respondent court is ordered to properly serve on the petitioner its resolution dated November 29, 1990.

 YES

 The general rule is that service by registered mail is complete upon actual receipt thereof by the addressee. The exception is where the addressee does not claim his mail within 5 days from the date of the first notice of the postmaster, in which case the service takes effect upon the expiration of such period.

Inasmuch as the exception refers to only constructive and not actual service, such exception must be applied only upon conclusive proof that a first notice was duly sent by the postmaster to the addressee. The presumption that official duty has been regularly performed is not applicable where there is evidence to the contrary, as in the case at bar.

There is nothing in the records of the present case showing how, when and to whom the delivery of the registry notices of the subject registered mail of petitioner was made and whether said notices were received by the petitioner. The envelope containing the unclaimed mail merely bore the notation “RETURN TO SENDER: UNCLAIMED” on the face thereof and “Return to: Court of Appeals” at the back. The respondent court should not have relied on these notations to support the presumption of constructive service.

A certification from the postmaster would be the best evidence to prove that the notice has been validly sent.  The postmaster should certify not only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was made.

SANSIO vs. MOGOL

SANSIO PHILIPPINES vs. SPOUSES MOGOL

G.R. No. 177007

July 14, 2009

FACTS: Petitioner Sansio Philippines, Inc. is a domestic corporation that is engaged in the business of manufacturing and selling appliances and other related products.

Petitioner filed a Complaint for Sum of Money and Damages against respondent spouses Mogol before the MeTC of Manila. At the request of herein petitioner, the process server of the MeTC of Manila served the summons and the copy of the complaint on respondent spouses Mogol at the courtroom of the MeTC. Respondent spouses were in the said premises, as they were waiting for the scheduled hearing of the criminal cases filed by petitioner against respondent Alicia for violations of BP 22. Upon being so informed of the summons and the complaint, respondent spouses Mogol referred the same to their counsel, who was also present in the courtroom. The counsel of respondent spouses Mogol took hold of the summons and the copy of the complaint and read the same. Thereafter, he pointed out to the process server that the summons and the copy of the complaint should be served only at the address that was stated in both documents, i.e., at Lucena City, and not anywhere else. The counsel of respondent spouses Mogol apparently gave back the summons and the copy of the complaint to the process server and advised his clients not to obtain a copy and sign for the same. As the process server could not convince the respondent spouses Mogol to sign for the aforementioned documents, he proceeded to leave the premises of the courtroom.

The process server of the MeTC of Manila issued a Return on Service of Summons, declaring that:

RETURN ON SERVICE OF SUMMONS

This is to certify that on October 3, 2000, the undersigned tried to serve a copy of the Summons issued by the Court .. together with a copy of Complaint upon defendant Leodegario .. and Alicia Mogol .. as requested by plaintiff counsel, but failed for the reason that they refused to received (sic) with no valid reason at all.

The original and duplicate copies of the Summons are hereby respectfully returned, (sic) UNSERVED.  xx

Petitioner filed a Motion to Declare [Respondents] in Default. Petitioner averred that the summons and the copy of the complaint were already validly served upon the respondent spouses Mogol at the courtroom of the MeTC. From the date of said service up to the time of the filing of the above-stated motion, respondent spouses Mogol had yet to file any responsive pleading.

Through a special appearance of their counsel, respondent spouses Mogol filed an Opposition to the Motion to Declare [Respondents] in Default. Respondent spouses Mogol averred the service should have been effected at the respondent spouses’ residential address, as stated in the summons and the copy of the complaint.

The MeTC of Manila ruled that Section 6, Rule 14 of the ROC does not specify where service is to be effected.. Respondent spouses Mogol were, thus, validly served with summons and a copy of the complaint. For failing to file any responsive pleading before the lapse of the reglementary period therefor, the Motion to Declare [Respondents] in Default filed by petitioner was declared to be meritorious. Respondent spouses Mogol filed an MR on the above Order, but the same was denied by the MeTC of Manila,

Respondent spouses filed a Petition for Certiorari, Prohibition and/or Injunction before the RTC of Manila against Judge de Castro, Jr. of the MeTC of Manila, and herein petitioner. Respondent spouses insisted there was no valid service of summons per return of the process server, which was binding on the MeTC judge, who did not acquire jurisdiction over the persons of respondent spouses. They contended that the MeTC of Manila acted with grave abuse of discretion amounting to lack or excess of jurisdiction in declaring them in default.

The RTC of Manila issued an Order dismissing the petition. It held that Section 6, Rule 14 of the ROC does not mandate that summons be served strictly at the address provided by the plaintiff in the complaint. Contrarily, said provision states that the service of summons may be made wherever such is possible and practicable. Therefore, it did not matter much that the summons and the copy of the complaint in this case were served inside the courtroom of the MeTC of Manila, Branch 24, instead of the address at Lucena City. The primordial consideration was that the service of summons was made in the person of the respondent spouses Mogol.

Respondent spouses Mogol filed a Notice of Appeal on the above-mentioned Order of the RTC of Manila, which was given due course. The CA rendered the assailed Decision, the relevant portions of which read: xx

We find the appeal meritorious.

After a careful perusal of the records, We hold that there was no valid service of summons upon the [respondent] Mogol spouses … Perforce, the MeTC never acquired jurisdiction over them. We explain. xx

Petitioner filed an MR thereon, but the same was denied by the CA in the assailed Resolution

ISSUE: WON there was a valid service of summons to the respondent spouses

 HELD: WHEREFORE, premises considered, the Petition for Review on Certiorari under Rule 45 is GRANTED

 YES;  A summon is a writ by which the defendant is notified of the action brought against him or her. In a civil action, jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant’s voluntary appearance in court. When the defendant does not voluntarily submit to the court’s jurisdiction, or when there is no valid service of summons, any judgment of the court, which has no jurisdiction over the person of the defendant, is null and void. Where the action is in personam, i.e., one that seeks to impose some responsibility or liability directly upon the person of the defendant through the judgment of a court, and the defendant is in the Philippines, the service of summons may be made through personal or substituted service in the manner provided for in Sections 6 and 7, Rule 14 of the ROC, which read:

SEC. 6. Service in person on defendant. – Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

SEC. 7. Substituted service. – If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein; or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.

It is well-established that summons upon a respondent or a defendant must be served by handing a copy thereof to him in person or, if he refuses to receive it, by tendering it to him. The essence of personal service is the handing or tendering of a copy of the summons to the defendant himself, wherever he may be found; that is, wherever he may be, provided he is in the Philippines.

In the instant case, the Court finds that there was already a valid service of summons in the persons of respondent spouses Mogol. The act of the counsel of respondent spouses Mogol of receiving the summons and the copy of the complaint already constituted receipt on the part of his clients, for the same was done with the latter’s behest and consent. Already accomplished was the operative act of “handing” a copy of the summons to respondent spouses in person. Thus, jurisdiction over the persons of the respondent spouses Mogol was already acquired by the MeTC of Manila. That being said, the subsequent act of the counsel of respondent spouses of returning the summons and the copy of the complaint to the process server was no longer material.

Section 6, Rule 14 of the ROC does not require that the service of summons on the defendant in person must be effected only at the latter’s residence as stated in the summons. On the contrary, said provision is crystal clear that, whenever practicable, summons shall be served by handing a copy thereof to the defendant; or if he refuses to receive and sign for it, by tendering it to him. Nothing more is required

Much more important than considerations of practicality, however, is the fact that respondent spouses Mogol based their case on a wrong appreciation of the above-stated provisions of the ROC. Respondent spouses principally argue that Section 6 of Rule 14 cannot be singled out without construing the same with Section 7. Axiomatically, Sections 6 and 7 of Rule 14 of the ROC cannot be construed to apply simultaneously. Said provisions do not provide for alternative modes of service of summons, which can either be resorted to on the mere basis of convenience to the parties. Under our procedural rules, service of summons in the persons of the defendants is generally preferred over substituted service.

As to the reliance of the CA on the second paragraph of the Return on Service of Summons stating that the original and duplicate copies of the Summons were returned “UNSERVED,” the Court finds the same utterly misplaced. A simple reading of the first paragraph of the Return on Service of Summons, which contains the circumstances surrounding the service of the summons on the persons of the respondent spouses Mogol, manifestly reveals that the summons and the copy of the complaint were already validly served on the said respondents. They merely refused to receive or obtain a copy of the same.

Although We find lamentable the apparently erroneous statement made by the process server in the aforesaid second paragraph – an error that undoubtedly added to the confusion of the parties to this case – the same was, nonetheless, a mere conclusion of law, which does not bind the independent judgment of the courts. Indeed, it cannot be said that because of such a statement, respondent spouses Mogol had the right to rely on said return informing them that the summons had been unserved, thus justifying their non-filing of any responsive pleading.

The constitutional requirement of due process exacts that the service be such as may be reasonably expected to give the notice desired. Once the service provided by the rules reasonably accomplishes that end, the requirement of justice is answered; the traditional notions of fair play are satisfied and due process is served.

In fine, we rule that jurisdiction over the persons of the respondent spouses Mogol was validly acquired by the MeTC in this case. For their failure to file any responsive pleading to the Complaint filed against them, in violation of the order of the said court as stated in the summons, respondent spouses Mogol were correctly declared in default.

PICZON vs. CA

PICZON vs. CA and Heirs of Rosario Piczon

G.R. Nos. 76378-81

September 24, 1990

FACTS: 4 Piczon brothers (one of them Esteban) ventured into the business of manufacturing ice . As the business expanded, the brothers took in other persons (including Alejandro) in order to raise the necessary capital.

The group in the informal partnership incorporated themselves and formed Piczon and Company, Inc. the Articles of Incorporation was signed by the incorporators, with Esteban Piczon, as attorney-in-fact, signing for and in behalf of the “Piczon Brothers”.

When the AOI was presented to the SEC for registration, the Commission refused to register it on the ground that “Piczon Brothers” could not qualify as an incorporator because under the law only a natural person could be an incorporator. Consequently, the Piczon brothers executed a power of attorney appointing Esteban as their attorney-in-fact “. . . to actively take part in the interest, business, direction, management and all that ought to be done” in the Corporation.

Alejandro Piczon, who went to Manila to have the AOI registered, felt that he was sufficiently authorized to erase and did in fact erase the words “Piczon Brothers” and “Attorney-in-Fact”, and initialled the erasures. Thus, only the name of Esteban Piczon appeared as one of the incorporators, together with Alejandro Piczon et al.

After Esteban’s death, his widow Rosario filed a petition for the settlement of the estate of her late husband and her appointment as administratrix. Rosario submitted an inventory of the estate wherein she listed the subject stock investment worth P65,944 as wholly part of her husband’s estate. The inclusion of this investment was strongly opposed by the 3 brothers of the deceased, who contended that they owned said investment in equal co-ownership with their brother Esteban.

The CFI of Samar rendered a decision declaring the capital stock investment to be of equal co-ownership among the estate of the late Esteban Piczon,and his 3 brothers. Only 1/4 of said investment belongs to the estate of the deceased Esteban Piczon. Consequently, Rosario appealed to the CA

On May 31, 1977, the CA rendered a decision affirming the judgment of the trial court

[Petitioners herein, filed a motion for partial reconsideration while private respondents, appellants therein, filed an MR. Both were denied by the CA. Appellants filed their second MR which was again denied. Undeterred, appellants filed a third MR praying that the decision of the CA be set aside and a new one be entered declaring that the investment in Piczon and Co., Inc. belonged exclusively to the estate of Esteban.]

the Heirs of Rosario came to this Court and filed a motion for extension of time to file a petition for certiorari. Instead they filed a special civil action for certiorari alleging that the CA abused its discretion when it did not act on the third MR. This Court issued a resolution ordering the return of the case to the CA and requiring the said court to act on the petition as if it were a fourth MR.

The CA promulgated its assailed resolution which reversed the May 31, 1977 decision declaring that the capital investment .. of Esteban .. in Piczon and Co., Inc… belongs exclusively to Esteban, and that the 3 brothers have no share therein;

The appellees moved for a reconsideration of the above resolution praying among others that the May 31, 1977 decision be reinstated and/or declared final and executory.

The Appellate Court denied the MR for lack of merit.

Hence this appeal.

ISSUES: WON the SC could review and reverse the decision of the CA

HELD: WHEREFORE, the assailed resolution of the CA is SET ASIDE and the decision of the same court promulgated on May 31, 1977 is hereby ordered REINSTATED.

YES

The subject of the present action is the 2nd resolution of the CA. That resolution contains findings of fact and conclusions of law which are in direct conflict with those found in the decisions of both the trial court and the Appellate Court speaking through another Associate Justice.

Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require.

While the High Court is not ordinarily a trier of facts, it has the prerogative to review and reverse the factual findings of the courts below if it should find that these do not conform to the evidence on record. Furthermore, in the case of Heirs of Juan Dacasan vs. Court of Appeals, we held that factual findings of the Appellate Court are binding on the SC, and the exception to this rule is when such findings conflict with those of the trial court.

This Court, in the exercise of its authority to re-weigh and reevaluate factual findings, have found from the maze of evidence on record that the investment worth P65,944 representing 17,400 shares of stocks in Piczon and Co. , Inc. is indeed owned in common by the 4 brothers.

Despite the assertions of the widow of Esteban that the subject investment is exclusively owned by her late husband, documents signed by Esteban himself are on record which would render these assertions nugatory, technically admitting that the subject investment is commonly owned with his 3 brothers.

From Esteban Piczon’s own admissions of his brothers’ rights over the investment as found in the records and from the findings of the lower court who was in a better position to examine real evidence as well as observe the deportment of the witnesses while they testified in the case, we rule for the petitioners and grant the writ prayed for.

BARRAZA vs. CAMPOS

SPOUSES BARRAZA vs. CAMPOS, JR.
G.R. No. L-50437
February 28, 1983

FACTS: On October 3, 1978, private respondent filed a Complaint for damages based on defendants’ (petitioners herein) use of plaintiff’s (now private respondent) trade name and style of “Gatchalian-The House of Native Lechon and Restaurant”, with prayer for preliminary injunction.

After service of summons, petitioners as defendants therein filed an “Urgent Ex- Parte Motion” for extension of time of 15 days within which to file an Answer which the Court granted.

Instead of filing the Answer within the extended period of fifteen (15) days, defendants filed through their counsel, Atty, Esmeraldo M. Gatchalian, a “Motion to Dismiss Complaint Together With Prayer for Preliminary Injunction” which was one (1) day before the expiration of the period as extended by the court. Said motion moved for the dismissal of the complaint on the following grounds: (1) That the complaint states no cause of action; (2) That venue is improperly laid; and (3) That there is another action pending between the same parties for the same cause of action.

Private respondent, then, filed an “Ex-Parte Motion to Declare Defendants in Default” on the ground that the defendants failed to file an answer within the reglementary period allowed by the Rules of Court. The defendants were declared in default.

ISSUE: Whether or not a motion to dismiss must be filed within the time for pleading, that is, within the time to answer.

RULING: A motion to dismiss under any of the grounds enumerated in Sec. 1, Rule 8 (now Sec. 1, Rule 16) of the Rules of Court, must be filed within the time for pleading, that is, within the time to answer including the extension of time granted to file such answer.
There is nothing in the Rules which provide, directly or indirectly, that the interruption of the running of the period within which to file an answer when a motion to dismiss the complaint is filed and pending before the court, refers only to the original period of fifteen (15) days and not to the extension of time to file the answer as granted by the court. It may be true that under Section 4 of Rule 16, if the motion to dismiss is denied or if the termination thereof is deferred, the movant shall file his answer within the time prescribed by Rule 11, computed from the time he received notice of the denial or deferment, unless the court provides a different period.

This Section 1 of Rule 11 in relation to Section 4 of Rule 16 allows the defendant to file his answer not only within the original fifteen (15) days period but also within “a different period (as) fixed by the court.”