Civil Procedure | Rule 17| Jan252016 1

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.

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

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.

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.

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

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

Civil Procedure | Rule 17| Jan252016 2

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.

Civil Procedure | Rule 17| Jan252016 3

G.R. No. L-35989 October 28, 1977

FERMIN
JALOVER, petitioner,
vs.
PORFERIO YTORIAGA, CONSOLACION LOPEZ and HON. VENICIO
ESCOLIN, in his capacity as Presiding Judge, Branch V, Court of First
Instance of Iloilo, respondents.
Lorenzo C. Coloso for petitioner.
Amado B. Atol for private respondents.

CASTRO, C.J.:t.hqw
This is an original action for certiorari, with prayer for a writ of preliminary
injunction, asking this Court to declare null and void the Orders dated
August 24, 1972 and November 10, 1972, issued by the respondent Judge in
civil case No. 5429 of the Court of First Instance of Iloilo, Branch V. On
December 27, 1972, a temporary restraining order was issued by this Court.

Sometime in April, 1960, private respondents Porferio Ytoriaga and

Consolacion Lopez filed against Ana Hedriana and petitioner Fermin Jalover a
complaint dated April 6, 1960, in the Court of First Instance of Iloilo (Civil
Case No. 5429), alleging, inter alia, that they are owners pro indiviso of Lot
No. 2255 of the Cadastral Survey of Jaro, covered by TCT No. 6738 and
containing an area 8,153 square meters; that the said parcel of land is
bounded oil the southwest by the Salog River; that as of January, 1958, by
virtue of the effects of the currant of the river, there was a increase on its
southwestern portion of around 900 square meters; that since before the
war, the plaintiffs have been in continuos possession of the increased portion
of the land, which, under the principle of alluvion, automatically belongs to
them; that sometime in January, 1958, the defendants had the land increase
surveyed, placed concrete monuments thereon and took possession ,
without the knowledge and consent of the plaintiff and that the defendants,
who destroyed plants standing on the land in question which belong to the
plaintiffs, have remained in ion of the in spite of repeated demands made by
the latter for them to return the said possession. The plaintiffs prayed that
they be declared the owners of the increased portion of the land, and that
the defendants be ordered to vacate the premises and restore their
possession to the plaintiffs, to pay the plaintiffs the sum of P147.00 as
actual damages, the sum of P300.00 as attorney's fees, and the sum of
P200.00 annually from the time the plaintiffs were deprived of ion up to the
time the said ion shall have been costs restored, and to pay the of suit.
In his answer dated April 21, 1960, petitioner Fermin Jalover, as a
defendant, alleged, inter alia, that his mother and co-defendant, Ana
Hedriana, died on July 21, 1959; that the land in question was formerly a
river bed, which, less than 10 years before, was abandoned the natural
change in the course of the waters; that the said land rightfully belongs to
the defendant as sole heir of his mother, who owned the land pursuant to
Article 461 of the Civil Code of the Philippines; that it is not true that the
plaintiffs were ever in possession of the land, or that they had made
demands upon the defendant to vacate the land; that the plaintiffs had filed
an ejectment suit against the defendant with the Municipal Court of Iloilo
City on March 12, 1958, and the same was decided against the plaintiffs:
and that by virtue of the malicious firing of the complaint, the defendant
suffered damages and had to hire the services of counsel. The defendant
prayed the court to dismiss the complaint with costs against the plaintiffs
and to order the plaintiffs to pay the defendant the sum of P1,000.00 as
damages and the sum of P1,000,00 by way of attorney's fees.

Civil Procedure | Rule 17| Jan252016 4

Issues having been joined, the case was set for trial. On September 4, 1963,
private respondents, as plaintiffs, formally offered documentary evidence,
and upon the admission thereof, they rested their case; whereupon,
continuation of trial was ordered transferred until further assignment. Trial
was postponed many times stretching to a period of more than 6 years, until
January 26, 1970, when the case was called for trial, and then Presiding
Judge Ramon Blanco dismissed the case, for failure of private respondents to
appear in court, in an order which reads: +.wph!1
The complaint was filed on April 6, 1960 up to the present
the trial of' the case has not been finished. The counsel of
record for the plaintiff is Atty. Amado Atol who since several
years ago has been appointed Chief of the Secret Service of
the Iloilo City Police Department. Plaintiff did not take the
necessary steps to engage the service of another lawyer in
lieu of Atty. Atol.
WHEREFORE, for failure to prosecute this case is dismissed it
without pronouncement as to costs .
Two years later, or on January 17, 1972, private respondents' lawyer, Atty.
Amado B. Atol, filed a motion for reconsideration of the order dated January
26, 1970 dismissing the case, alleging that the said respondents did not fail
to prosecute because, during the times that the case was set for hearing, at
least one of said respondents was always present, and the record would
show that the transfers of hearing were all made at the instance of petitioner
or his counsel; and, moreover, private respondents had already finished
presenting their evidence. Petitioner opposed the motion on the ground that
the order of dismissal issued two years before was an adjudication on the
merits and had long become final. On June 23, 1972, respondent Judge
Venicio Escolin, who succeeded Judge Blanco in Branch V, issued an order
denying the motion for reconsideration on the ground that the order of
dismissal had become final long ago and was beyond the court's power to
amend or change.
Private respondents then filed a Petition for Relief from Judgment dated July
10, 1972, claiming that the order of dismissal dated January 26, 1970 was
void because of lack of due process and for having been obtained thru fraud,
for the petitioner had misrepresented to the court the status of the case by
making Judge Blanco - who was not the Presiding Judge when private
respondents presented their evidence and rested their case in 1963 - believe

that trial had not even begun. Petitioner opposed the petition for relief
contending that private respondents were served a copy of the order of
dismissal on February 5, 1970, and, therefore, pursuant to Section 3, Rule
38 of the Revised Rules of Court, the petition for relief should have been
filed within 60 days from February 5, 1970, and within 6 months from
January 26, 1970, when the order was issued; hence, the filing of the
petition was beyond the reglementary period.
The petition for relief was given due course, and on August 24, 1972,
respondent Judge issued an order setting aside the orders dated January 26,
1970 and June 23, 1972, and setting the continuation of the trial for
September 15, 1972. The reasons stated by respondent Judge in support
are: (1) the shows that while respondent Porferio Ytoriaga was furnished
with a copy of the dismissal order dated January 26, 1970, his counsel, Atty.
Atol, was never served with a copy thereof, hence, pursuant to the settled
rule that where a party appears by attorney, a notice to the client and not to
his attorney is not a notice of law, the said order of dismissal never became
final; and (2) the order dated January 26, 1970 was without legal basis,
considering that private respondents had already presented their evidence
and rested their caw on September 4, 1963, and the hearing scheduled for
January 26, 1970 was for reception of petitioner's evidence; consequently,
the non-appearance of private respondents and their counsel at the said
hearing could not mean failure to prosecute on their part, but may at worst
only be construed as a waiver on private respondents' part of the right to
cross-examine the witnesses whom petitioner might present and to object to
the admissibility of petitioner's evidence. Petitioner, in a motion dated
October 16, 1972, moved for a reconsideration of the order dated August
24, 1972, on the grounds that the court had full authority to issue the order
of dismissal, and that the said order, which had long become final, was
beyond the court's power to reconsider. On November 10, 1972, respondent
Judge issued an order denying the motion for reconsideration and setting the
continuation of trial for December 12, 1972.
Hence, the present recourse by petitioner.
The main thrust of the petition is that respondent Judge acted without or in
excess of jurisdiction or with grave abuse of discretion in setting aside the
orders dated January 26, 1970 and June 23, 1972, because the said orders
have long become final and executory, hence, may no longer be disturbed.

Civil Procedure | Rule 17| Jan252016 5

It is uncontroverted that the order of January 26, 1970, dismissing the case
for private respondents' "failure to Prosecute," was served upon private
respondents themselves, and not upon their as attorney of record, Atty.
Amado B. Atol, and that there was no court order directing that the court's
processes, particularly the order of January 26, 1970, should be served
directly upon private respondents. It is settled that when a party is
represented by counsel, notice should be made upon the counsel, and notice
upon the party himself is not considered notice in law unless service upon
the party is ordered by the court. 1 The term "every written notice" used in
Section 2 of Rule 13 includes notice of decisions or orders. 2 Private
respondents' counsel of record not having been served with notice of the
order dismissing the case, the said order did not become final.
Petitioner argues that since private respondents' counsel of record, Atty.
Atol, had been appointed Chief of the Secret Service of the Iloilo City Police
Department, he was not anymore allowed to practice law, hence, private
respondents being no longer represented by counsel, notice to them should
be deemed legally effective. The argument is not valid, for it fails to consider
the need of observing a legal formality before a counsel of record may be
considered relieved of his responsibility as such counsel on account of
withdrawal. A lawyer's withdrawal as counsel must be made in a formal
petition filed in the case, and where no such petition has been accomplished,
notice of judgment rendered in the case served on the counsel of record is,
for all legal purposes, notice to the client, the date of receipt of which is
considered the starting point from which the period of appeal prescribed by
law shall begin to run 3 Not having withdrawn formally as counsel in the
case, nor having been substituted by his clients with another lawyer, or
dismissed as such counsel, Atty. Atol was, for all legal purposes, private
respondents' attorney upon whom the Courts processes should have been
served.
It will also be noted that, as found by respondent Judge, private
respondents, as plaintiffs, adduced their evidence and rested their case on
September 4, 1963, or more than six years before the dismissal of the case
on January 26, 1970. It was, therefore, the turn of petitioner, as defendant,
to present his evidence. In the premises, private respondents court not
possibly have failed to prosecute they were already past the stage where
they could still be charged with such failure. As correctly held by respondent
Judge, private respondents' absence at the hearing scheduled on January 6,
1970 "can only be construed as a waiver on their part to cross-examine the
witnesses that defendants might present at the continuation of trial and to

object to the admissibility of the latter's evidence." The right to crossexamine petitioner's witnesses and/or object to his evidence is a right that
belongs to private respondents which they can certainly waive. Such waiver
could be nothing more than the "intentional relinquishment of a known
right," 4 and. as such, should not have beer taken against private
respondents.
To dismiss the case after private respondents had submitted their evidence
and rested their case, would not only be to hold said respondents
accountable for waiving a right, but also to deny them one of the cardinal
primary rights of a litigant, which is, corollary to the right to adduce
evidence, the right to have the said evidence considered by the court. 5 The
dismissal of the case for failure to prosecute, when in truth private
respondents had already presented their evidence and rested their case,
and, therefore, had duly ,prosecuted their case, would in effect mean a total
disregard by the court of evidence presented by a party in the regular course
of trial and now forming part of the record. The ends of justice would be
better served if, in its deliberative function. the court would consider the said
evidence together with the evidence to be adduced by petitioner.
However, we are of the view that relief from judgment under Rule 38 of the
Revised Rules of Court is not the appropriate remedy. A petition for relief is
available only if the judgment or order complained of has already become
final and executory; 6 but here, as earlier noted, the order of January 26,
1970 never attained finality for the reason that notice thereof was not
served upon private respondents' counsel of record. The petition for relief
may nevertheless be considered as a second motion for reconsideration or a
motion for new trial based on fraud and lack of procedural due process.
Under the circumstances of the case, the issuance of the orders now
complained of cannot be said to have been characterized with abuse of
discretion.
ACCORDINGLY the instant petition is denied. The temporary restraining
order issued by this Court on December 27, 1972 is hereby dissolved. No
costs.

Civil Procedure | Rule 17| Jan252016 6

G.R. No. L-17828

August 31, 1963

LIGAYA MINA, JAIME MINA, SILVINA MINA, FAUSTA MINA,

PABLO MINA and MIGUEL MINA, the minors represented by PILAR
LAZO
as
guardian-ad-litem, plaintiffs-appellants,
vs.
ANTONIA
PACSON,
CRISPINO
MEDINA
and
CRESENCIA
MINA, defendants-appellees.
F.
A.
Pelmoka
for
Castelo Law Office for defendants-appellees.

plaintiffs-appellants.

LABRADOR, J.:
This is an appeal from an order of the Court of First Instance of Nueva Ecija,
Hon. Felix Makasiar, presiding, in its Civil Case No. 3296, entitled "Ligaya
Mina, et al., plaintiffs vs. Crispino Medina, et al., defendants," dismissing the
complaint filed in this case. The appellant also appeals against the order
denying the motion for reconsideration of the order of dismissal.
The facts necessary to understand the nature of the issues presented in this
appeal, as gleaned from the pleadings, may be briefly stated as follows:
Plaintiffs Ligaya, Jaime, Silvina, Fausta, Pablo and Miguel, all surnamed Mina,
are alleged to be the illegitimate children of the deceased Joaquin Mina with
plaintiff Pilar Lazo from 1933-1958, while married to Antonia Pacson. Joaquin
Mina died in August, 1958, leaving no descendants norascendants except his
widow, the defendant herein Antonia Pacson. On April 9, 1958, Joaquin Mina,
then still living, executed a deed of absolute sale (Annex "B" to Complaint)
of three parcels of land situated in the municipality of Muoz, Nueva Ecija, in
favor of the defendants Crispino Medina and Cresencia Mina for the sum of
P12,000. On April 15, 1958 again he executed another deed of sale (Annex
"C" to Complaint) of 13 parcels of land covered by 12 transfer certificates of
title to the same spouses Crispino Medina and Cresencia Mina. Both deeds of
sale bear the conformity of his wife Antonia Pacson.

Civil Procedure | Rule 17| Jan252016 7

In the complaint filed in the Court of First Instance of Nueva Ecija in the case
which originated this appeal, it is alleged that plaintiffs are illegitimate
children of the deceased Joaquin Mina begotten by him with Pilar Lazo during
the period from 1933 to 1958 while Joaquin Mina was lawfully married to
Antonia Pacson; that the plaintiff Pablo Mina is a recognized illegitimate child
of the deceased Joaquin Mina; that Joaquin Mina died intestate leaving no
ascendants or descendants, except his widow Antonia Pacson; that he left
various parcels of land enumerated in the complaint but that on April 9,
1950 the defendants connived and secured from Joaquin Mina, who was ill
and did not know what he was doing, the execution of the two deeds of sale
without consideration, fictitiously and fraudulently, transferring his
propertiesto the spouses Crispino Medina and Cresencia Mina; and that by
reason of said acts, defendants have caused moral anguish, anxiety and
embarrassment to plaintiffs, causing them damages amounting to P10,000;
that plaintiffs pray that they be declared recognized illegitimate children of
the deceased Joaquin Mina, entitled to share in the properties left by him as
such illegitimate children; that the deeds of sale, Annexes "B" and "C" be
declared fictitious, fraudulent and therefore, null and void; and that
defendants be required to deliver to plaintiffs' possession one-fourth of said
properties together with P10,000 for moral damages.
Upon the filing of the complaint the defendants presented a motion to
dismiss the complaint on the ground of res judicata, alleging that a similar
action had previously been presented as Civil Case No. 3015 in the same
court, and by the same parties against Crispino Medina and Cresencia Mina,
in which the same allegations of plaintiffs' status and fraudulent conveyance
of the properties to defendants are alleged, together with a prayer for moral
damages in the sum of P20,000. It appears, however, that in the complaint
filed in said Civil Case No. 3015, no prayer is made for the declaration of the
filiation of the plaintiffs in relation or with respect to the deceased Joaquin
Mina.
The motion to dismiss also copied an order of the court issued in said Civil
Case No. 3015 which reads as follows:
Acting on the Motion filed by the defendants on December 22, 1958
for the reconsideration of the order dated December 8, 1958, and
considering that the present action is not only for annulment of
deeds of sale but also for partition (paragraphs 8 and 11 of the
complaint and paragraph 4 of the prayer thereof); that to avoid
multiplicity of suits, the complex action to establish filiation andfor

partition or for recovery of inheritance may be brought in the same

case (Lopez v. Lopez, 68 Phil. 227; Escoval vs. Escoval, 48 O.G. 615;
Edades vs. Edades, L-8964, July 31, 1956); and that Antonia Pacson,
the surviving widow and the other intestate heirs of the deceased
Joaquin Mina, or necessary parties are not made a party in this case
(Briz v. Briz, 43 Phil. 763), the plaintiffs are hereby directed to
amend their complaint within fifteen (15) days from receipt hereof
by including as party defendant the surviving widow of the deceased
Joaquin Mina and other necessary parties.
Should the plaintiffs fail to comply with this order, this case will be
dismissed.
Lastly, another order of the same court dated February 9, 1959 was quoted,
the dispositive part of which reads:
The fifteen-day period granted to the plaintiffs having elapsed
without said order having been complied with, the Court hereby
dismisses this case, without pronouncement aa to costs.
Opposition to the motion to dismiss was presented on behalf of the plaintiffs
by their attorney to which a reply was filed on behalf of the defendants. A
rejoinder was also filed after which Judge Genaro Tan Torres, then presiding
over the court, sustained the motion to dismiss in an order which reads as
follows:
After a careful consideration of the joint motion to dismiss of
defendants Antonia Pacson and the spouses Crispino Medina and
Cresencia Mina, dated November 11, 1959, the opposition thereto
dated November 24, 1959, and the reply of the defendants to the
opposition, dated December 7, 1959, the Court is of the opinion that
said motion to dismiss is well taken; hence this case is hereby
dismissed without costs.
Plaintiffs' motion for time to submit rejoinder, dated December 10,
1959, is hereby denied because it will only unnecessarily delay the
termination of this case.
So ordered.

Civil Procedure | Rule 17| Jan252016 8

Cabanatuan City, December 18, 1959.

A motion for the reconsideration of the order of the court dismissing the
action having been denied, the plaintiffs in the present case prosecuted this
appeal directly to this Court.1wph1.t
As shown above the question to be resolved is whether or not the order
dismissing the previous Civil Case No. 3015 bars the present civil action No.
3296 of the Court of First Instance of Nueva Ecija.
In the first error assigned by the appellants in their brief it is argued that the
dismissal of the complaint in the previous action was in fact "at the indirect
instance of the plaintiffs through inaction or omission." We do not find this
claim justified by the facts of the case. The order of the court dismissing the
complaint in the first case contains the following warning: "Should the
plaintiffs fail to comply with this order, this case will be dismissed." In the
face of this express warning given in the court's order the dismissal can not
be said to have been "at the indirect instance of the plaintiffs; it was in fact
caused by plaintiffs' refusal to comply with the express mandate contained in
the order of dismissal. The dismissal, therefore, was justified under Rule 30,
Section 3 of the Rules of Court, which reads:
SEC. 3. Failure to prosecute. When plaintiff fails to appear at the
time of the trial, or to prosecute his action for an unreasonable
length of time, or to comply with these rules of any order of the
court, the action may be dismissed upon motion of the defendant or
upon the court's own motion. This dismissal shall have the effect of
an adjudication upon the merits, unless otherwise provided by court.
The above provision of the Rules was invoked in the case, of Garchitorena,
et al. vs. De los Santos, et al., G.R. No. L-17045, June 30, 1962, wherein
this Court held:
To order an amendment to a complaint within a certain period in
order to implead as party plaintiff or defendant one who is not a
party to the case lies within the discretion of the Court. And where it
appears that the person to be impleaded is an indispensable party,
the party to whom such order is directed has no other choice but to
comply with it. His refusal or failure to comply with the order is a

ground for the dismissal of his complaint pursuant to Section 3,

Rule, 30, of the Rules of Court. . . .
Under the second assignment of error it is argued that the dismissal of the
previous case was brought about by the negligence, gross or criminal, of
plaintiffs' lawyer for which the plaintiffs-appellants should not be made to
suffer. The argument is not true to fact. The failure to amend was a result
not of the neglect of the lawyer alone but also of the plaintiffs-appellants
themselves. Had the plaintiffs taken even an ordinary interest in the result of
the action that they had filed, they would have been able to secure
information from their lawyer that the case had been dismissed for failure to
amend. Upon receipt of such information, plaintiffs could have applied to the
court for relief under Rule 38 of the Rules of Court and could have had the
complaint amended as directed in the order of dismissal. It is not alone
negligence of their counsel, therefore, but of themselves also that the
required amendment was not made. But assuming for the sake of argument
that the failure was due to the lawyer alone, such failure would not relieve
them of the responsibility resulting from the neglect of their lawyer, for the
client is bound by the action of his counsel. (Isaac v. Mendoza, G. R. No. L2830, June 21, 1951; Vivero v. Santos, et al., G. R. No. L-8105, Feb. 28,
1956; Fernandez v. Tan Tiong Tick, G.R. No. L-15877, April 28, 1961;
Gordulan v. Gordulan, G.R. No. L-17722, Oct. 9, 1962; Valerio v. Sec. of
Agriculture, G.R. No. L-18587, April 23, 1963.)
In the third assigiament of error it is claimed that there is no complete
identity between the parties in the first case and those in the case at bar.
The statement is true because in the previous case Antonia Pacson was not
included as party-defendlant. As a matter of fact the order decided that
Pacson was to be included as party-defendant. As to the latter, therefore, the
previous order of dismissal does not bar the present complaint, not only
because she was not made a party but also because the issue of filiation of
the parties-plaintiffs was not raised in the previous case, although such issue
was necessary for the plaintiffs to be able to maintain their right of action. In
view of this fact, the present action should be considered barred in respect
to the action for the annulment of the deeds of sale and as regards the
defendants spouses Crispino Medina and Cresencia Mina; but as to the case
for the declaration of the plaintiffs as illegitimate children and heirs of the
deceased Joaquin Mina this latter case is not barred by the previous action
as above explained and may still be prosecuted.

Civil Procedure | Rule 17| Jan252016 9

WHEREFORE, the order of dismissal is hereby modified in the sense that the
action for the recognition of the filiation of the plaintiffs should be allowed to
continue against the defendant Antonia Pacson; but the dismissal of the
action for the annulment of the deeds of sale is affirmed. Without costs.

G.R. No. L-18707

February 28, 1967

Civil Procedure | Rule 17| Jan252016 10

AGUSTIN
O.
CASEAS, plaintiff-appellant,
vs.
CONCEPCION SANCHEZ VDA. DE ROSALES (Substituted by her heirs),
ROMEO S. ROSALES, ET AL.,defendants-appellees.

complaint to effect the necessary substitution of parties thereon. The said

surviving plaintiff, however, failed altogether to comply with the
aforementioned order of April 27, 1956 to the end that on July 18, 1957, the
lower court issued the following order:

Juan
L.
Pastrana
for
plaintiff-appellant.
Francisco Ro. Cupin and Wenceslao B. Resales for defendants-appellees.

Until this date no amended complaint was filed by the attorney for
the plaintiffs. This shows abandonment and lack of interest on the
part of the plaintiffs. This being an old case, for failure on the part of
the counsel for the plaintiffs to comply with the order of this Court
the same is hereby dismissed without pronouncement as to costs.

REGALA, J.:
This is an appeal from the order of dismissal entered by the Court of First
Instance of Agusan in Civil Case No. 780, entitled Agustin Caseas vs.
Concepcion Sanchez Vda. de Rosales, et al.
On August 21, 1952, Rodolfo Araas and Agustin O. Caseas filed with the
Court of First Instance of Agusan, under Civil Case No. 261, a complaint for
specific performance and enforcement of their alleged right under a certain
deed of sale, and damages against the spouses Jose A. Rosales and
Concepcion Sanchez. They alleged that sometime in 1939, Agustin O.
Caseas acquired from Rodolfo Araas under a deed of assignment, the
latter's rights and interest over a parcel of land covering an area of more or
less than 2,273 square meters and designated as Lot No. 445-A of the
Butuan Cadastre No. 84 (Psd. 4943); that Rodolfo Araas in turn, acquired
the said property from the spouses Jose A. Rosales and Concepcion Sanchez
under a deed of sale executed on March 18, 1939 under the terms of which,
however, the actual transfer of the aforesaid land unto the vendee would be
made only on or before February 18, 1941; and that despite the above
documented transactions, and despite the arrival of the stipulated period for
the execution of the final deed of transfer, the vendors spouses refused to
fulfill their obligation to effect such transfer of the said lot to the vendee,
Rodolfo Araas or his assignee, the herein appellant, Agustin O. Caseas.
Thus, the principal relief prayed for in the above complaint was for an order
directing the defendants-spouses to "execute a deed of absolute sale of the
property described in the complaint in favor of the assignee, plaintiff Agustin
O. Caseas.
After the defendants-spouses had filed their answer to the above complaint,
but before trial, the counsel for the plaintiffs gave notice to the trial court
that plaintiff Rodolfo Araas and defendant Jose A. Rosales had both died. In
view of the said manifestation, the lower court, in an order dated April 27,
1956, directed, the surviving plaintiff, Agustin O. Caseas, to amend the

As no appeal was taken from the above order of dismissal, the same, in due
time, became final.
On April 18, 1960, Agustin O. Caseas, the same plaintiff Caseas in civil
Case No. 261, filed with the same Court of First Instance of Agusan, under
Civil Case No. 780, another complaint against the widow and heirs of the
late Jose A. Rosales "to quiet, and for reconveyance of, title to real property,
with damages." This suit referred itself to the very same property litigated
under Civil Case No. 261 and asserted exactly the same allegations as those
made in the former complaint, to wit: "that the plaintiff (Agustin O. Caseas)
has acquired the above-described property by purchase from its previous
owner, Rodolfo Araas now deceased, ...; and said Rodolfo Aranas had in
turn acquired the same property by virtue of another deed of sale executed
by Jose A. Rosales, now also deceased;" (Par. 3, Complaint) "that under the
terms and stipulations of paragraph 2 of the deed of sale (between Rosales
and Araas) ... Jose A. Rosales was to hold title to the land in question in
favor of Rodolfo Araas or the latter's signs and successors in interest for a
period of (5) years from February 19, 1936, at the expiration of which said
Jose A. Rosales was to execute a document conveying absolutely the title to
the land in question in favor of the aforementioned Rodolfo Araas or his
assigns and successors in interest" (Par. 9, Complaint) ; "despite which
obligation the defendants refused, even after the expiration of the stipulated
period to "convey title to the land in question and to execute the
corresponding document covering the same." (Par. 12, Complaint) In the
premises, the plaintiff prayed for judgment "quieting the title of the plaintiff
to the land in question and ordering the defendants to execute a deed of
conveyance of the same in favor of the said plaintiff" plus costs and
damages.

Civil Procedure | Rule 17| Jan252016 11

To the above complaint, the defendants filed a motion to dismiss on several

grounds, namely: res judicata, prescription, lack of cause of action, failure to
include indispensable parties, and that the contract subject of the complaint
was void ab initio. After the plaintiff had filed his opposition to the above
motion, the lower court issued the order under appeal dismissing the
complaint. Of the above grounds, though, the lower court relied alone on the
defendants' plea of res judicata, lack of cause of action and prescription. The
material portion of this order of dismissal reads:
The Court, however, believes that this action is barred by prior
judgment. The order of dismissal in Civil Case No. 261 was already
final and has the effect of an adjudication upon the merits. The
parties in Civil Case No. 261 and in this case are substantially the
same; the subject matter is the same and there is identity of cause
of action. All the elements of res judicata are therefore
present.1wph1.t
Moreover, the complaint states no cause of action if its purpose is to
quiet title, because the plaintiff has as yet no title to the land in
question. Precisely, this action is brought in order to acquire or
secure title by compelling the defendants to execute a deed of sale
in favor of the plaintiff. However, this action for specific performance
cannot also prosper because being based upon an agreement in
writing it is already barred by prescription as the period of ten years
has long expired when the present complaint was filed.
The appeal at bar assails the above determination that Civil Case No. 780 is
barred by a prior judgment and by prescription and that the same states no
cause of action. It is on these issues, therefore, that this Court shall dispose
of this appeal.
We find for the appellant.
When certain of the parties to Civil Case No. 261 died and due notice thereof
was given to the trial court, it devolved on the said court to order, not the
amendment of the complaint, but the appearance of the legal
representatives of the deceased in accordance with the procedure and
manner outlined in Rule 3, Section 17 of the Rules of Court, which provides:

SEC. 17. Death of Party. After a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the
legal representative of the deceased to appear and to be substituted
for the deceased, within a period of thirty (30) days, or within such
time as may be granted. If the legal representative fails to appear
within said time, the court may order the opposing party to procure
the appointment of a legal representative of the deceased within a
time to be specified by the court, and the representative shall
immediately appear for and on behalf of the interest of the
deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as
costs. The heirs of the deceased may be allowed to be substituted
for the deceased, without requiring the appointment of an executor
or administrator and the court may appoint guardian ad litem for the
minor heirs.
In the case of Barrameda vs. Barbara, 90 Phil. 718, this court held that an
order to amend the complaint, before the proper substitution of parties as
directed by the aforequoted rule has been effected, is void and imposes
upon the plaintiff no duty to comply therewith to the end that an order
dismissing the said complaint, for such non-compliance, would similarly be
void. In a subsequent case, Ferriera et al. vs. Gonzalez, et al., G.R. No. L11567, July 17, 1958, this court affirmed a similar conclusion on the
determination that the continuance of a proceedings during the pendency of
which a party thereto dies, without such party having been validly
substituted in accordance with the rules, amounts to a "lack of jurisdiction."
The facts of this case fit four squares into the Barrameda case abovecited,
save for the minor variance that in the former two of the litigants died while
only one predeceased the case in Barrameda. Here, as in Barrameda, during
the pendency of civil case, notice was given to the trial court of the deaths of
one of the plaintiffs and one of the defendants in it. Instead of ordering the
substitution of the deceased's legal representatives in accordance with Rule
3, section 17 of the Rules of Court, the trial court directed the surviving
plaintiff to amend the complaint and when the latter failed to comply
therewith, the said court dismissed the complaint for such non-compliance.
We must hold, therefore, as We did in Barrameda that inasmuch as there
was no obligation on the part of the plaintiff-appellant herein to amend his
complaint in Civil Case No. 261, any such imposition being void, his failure to
comply with such an order did not justify the dismissal of his complaint.
Grounded as it was upon a void order, the dismissal was itself void.

Civil Procedure | Rule 17| Jan252016 12

Consequently, as the dismissal of Civil Case No. 261 was void, it clearly may
not be asserted to bar the subsequent prosecution of the same or identical
claim.
Finally, We find ourselves unable to share the appellees' view that the
appellant's complaint under Civil Case No. 780 failed to state a sufficient
cause of action. A cause of action is an act or omission of one party in
violation of the legal right or rights of the other (Ma-ao Sugar Central vs.
Barrios, 79 Phil. 666) and both these elements were clearly alleged in the
aforesaid complaint.
Insofar as the issue of prescription is concerned, this Court is of the view
that it should defer resolution on it until after Civil Case No. 780 shall have
been tried on the merits, considering that one of the defenses set up by the
appellant against the said issue is the existence of a trust relationship over
the property in dispute.
In view of all the foregoing, the order dated January 20, 1961 dismissing
Civil Case No. 780 is hereby set aside and the said case is ordered remanded
to the court of origin for trial on the merits. Costs against the appellees.
G.R. No. L-54287 September 28, 1988
REPUBLIC
PLANTERS
BANK petitioner,
vs.
HON. CONRADO M. MOLINA, as Presiding Judge, Court of First
Instance of Manila, Branch XX, SARMIENTO EXPORT CORPORATION,
SARMIENTO
SECURITIES
CORPORATION
and
FELICIANO
SARMIENTO, JR., respondents.
Paco, Gutierrez, Dorado, Asia & Associates for petitioner.
Benjamin M. Reyes for respondents.

GANCAYCO, J.:
The principal issue raised in this case is whether the trial court committed a
grave abuse of discretion when it ordered Civil Case No. 129829 dismissed

on the ground of resjudicata it appearing that Civil Case No. 116028 was
dismissed on May 21, 1979, for failure of petitioner to prosecute within a
reasonable length of time, although in the said case, the trial court never
acquired jurisdiction over the persons of private respondents.
It is not disputed that both complaints in Civil Case No. 116028 (Branch
XXXVI, Manila, Judge Alfredo C. Florendo) and in Civil Case No. 129829
(Branch XX, Manila, Judge Conrado M. Molina) were filed by petitioner
Republic Planters Bank against private respondent, for the collection of a
sum of money based on a promissory note dated January 26, 1970, in the
amount of P100,000.00.
On May 21, 1979, Judge Alfredo C. Florendo dismissed Civil Case No.
116028 for failure of the petitioner "to prosecute its case within a reasonable
length of time. 1 A motion for reconsideration of that order was denied on
January 15, 1979. 2
When Civil Case No. 129829 was filed by petitioner, a motion to dismiss was
submitted by private respondents on the ground that the cause of action is
barred by a prior judgment (res judicata) in Civil Case No. 116028. Private
respondents opined that said order was an adjudication upon the merits.
Petitioner opposed the motion to dismiss, claiming that res judicata does not
apply because the summons and complaint in Civil Case No. 116028 were
never served upon private respondents and, as such, the trial court never
acquired jurisdiction over private respondents and, consequently, over the
case. Petitioner maintains that the order of dismissal in Civil Case No. 11
6028 never became final as against private respondents.
The trial court (Branch XX), in its order dated May 8, 1980, dismissed the
complaint in Civil Case No. 129829 on the ground that the orders dated May
21, 1979 and June 15, 1979 issued by Judge Alfredo C. Florendo, dismissing
Civil Case No. 116028, had become final. The trial court ruled that the
dismissal of Civil Case No. 116028 had the effect of an adjudication upon the
merits, that the dismissal was with prejudice since the order was
unconditional, and that the lack of jurisdiction over defendants (private
respondents) in Civil Case No. 116028 was of no moment. 3
In a motion for reconsideration of the order of May 8, 1980, petitioner
reiterated its allegation that in Civil Case No. 116028, the court did not
acquire jurisdiction over private respondents and that at the time the court
ordered its dismissal, a motion for an alias writ of summons was pending

Civil Procedure | Rule 17| Jan252016 13

resolution inasmuch as the sheriff had not acted on the same. 4 The motion
for reconsideration was denied by the trial court on June 26, 1980 in Civil
Case No. 129829. 5
Petitioner appealed to the Court of Appeals both questioned orders of
respondent court in Civil Case No. 129829. 6 But then, petitioner sought a
more speedy remedy in questioning said orders by filing this petition for
certiorari before this Court.
Under the foregoing undisputed facts, the Court finds this petition to be
impressed with merit.
The questioned orders of the trial court in Civil Case No. 129829 supporting
private respondent's motion to dismiss on the ground of res judicata are
without cogent basis. We sustain petitioner's claim that respondent trial
judge acted without or in excess of jurisdiction when he issued said orders
because he thereby traversed the constitutional precept that "no person
shall be deprived of property without due process of law" and that
jurisdiction is vitally essential for any order or adjudication to be binding.
Justice cannot be sacrificed for technicality. Originally, the action for
collection of the loan, evidenced by a promissory note, was only for
P100,000.00 but petitioner claims that as of March 5, 1981, the obligation
was already P429,219.74. It is a cardinal rule that no one must be allowed
to enrich himself at the expense of another without just cause.
In the very order of dismissal of Civil Case No. 116028, the trial court
admitted that it did not acquire jurisdiction over the persons of private
respondents and yet, it held that it was of no moment as to the dismissal of
the case. We disagree. For the court to have authority to dispose of the case
on the merits, it must acquire jurisdiction over the subject matter and the
parties. If it did not acquire jurisdiction over the private respondents as
parties to Civil Case No. 116028, it cannot render any binding decision,
favorable or adverse to them, or dismiss the case with prejudice which, in
effect, is an adjudication on the merits. 7 The controverted orders in Civil
Case No. 116028 disregarded the fundamental principles of remedial law and
the meaning and the effect of jurisdiction. A judgment, to be considered res
judicata, must be binding, and must be rendered by a court of competent
jurisdiction. Otherwise, the judgment is a nullity.
The order of dismissal in Civil Case No. 116028 does not have the effect of
an adjudication on the merits of the case because the court that rendered

the same did not have the requisite jurisdiction over the persons of the
defendants therein.
This being so, it cannot be the basis of res judicata and it cannot be a bar to
a lawful claim. If at all, such a dismissal may be considered as one without
prejudice. 8
Trial courts have the duty to dispose of controversies after trial on the merits
whenever possible. In this case, there are no indications that petitioner
intentionally failed to prosecute the case. The delay could not be attributed
to its fault. Petitioner pursued the case with diligence, but jurisdiction could
not be acquired over defendants-private respondents. The sheriff had not yet
submitted his return of the alias summons when the action was precipitately
dismissed by the trial court. These are proven circumstances that negate the
action of respondent judge that the dismissal of Civil Case No. 116028 has
the effect of an adjudication upon the merits and constitutes a bar to the
prosecution of Civil Case No. 129829. The court finds that the two
questioned orders of the trial court are irregular, improper, and, were issued
with grave abuse of discretion amounting to excess of jurisdiction.
Petitioner correctly states that its appeal to the Court of Appeals in CA-G.R.
No. 67288 pertaining to the questioned orders of the trial court is not an
adequate remedy, because petitioner was not able to present evidence in the
trial court. The sole issue involved in this case is one of jurisdiction, which is
appropriate for resolution by the instant petition.
WHEREFORE, and by reason of the foregoing, the questioned orders dated
May 8, 1980 and June 26, 1980 issued in Civil Case No. 129829 are hereby
REVERSED and SET ASIDE. The records of the case are ordered returned to
the trial court for trial and disposition on the merits. No costs. This decision
is immediately executory.
SO ORDERED.

Civil Procedure | Rule 17| Jan252016 14

IN THE MATTER OF THE ESTATE OF CANDELARIA BENGUAN,

deceased.
SUSANA
ABAY
DE
ARROYO, petitioner-appellant,
vs.
FRANCISCO ABAY, CONRADO ABAY, JR., JOSE ABAY and NORMA
ABAY, opponents-appellees.
PADILLA, J.:
On 5 January 1956 Susana Abay de Arroyo filed in the Court of First
Instance of Negros Occidental a petition for the probate of the will of her
deceased first-degree cousin Candelaria Benguan (special proceedings No.
3883). On 28 May, the Court ordered that the petition be published once a
week for three consecutive weeks in Civismo, a newspaper of general
circulation in Negros Occidental, setting the date of hearing thereof for the
23rd day of June 1956. On the date and time set for the hearing of the
petition attorney Rolando Medalla, representing some of the heirs hereinafter
referred to as opponents, moved for the postponement of the hearing to
give him time and opportunity to file a written objection to the petition .
Whereupon, the hearing was postponed to 30 June 1956. On 28 June, the
opponents filed a motion to dismiss on the ground that a petition for the
probate of the same last will and testament had been dismissed by the same
Court in a previous special proceedings No. 3628 and constitutes a bar to
the present proceedings (No. 3883). On 7 July, the petitioner answered the
motion to dismiss. By an order entered on 14 July, the Court dismissed the
petition. After considering the motion for reconsideration filed by the
petitioner on 31 July 1956 and the answer thereto filed by the opponents on
3 August 1956, the Court denied the motion for reconsideration. The
petitioner appealed to the Court of Appeals which certified the appeal to this
Court for only questions of law are raised. .1wph1.t

G.R. No. L-15814

February 28, 1962

The previous proceedings invoked by the opponents to bar the present is

special proceedings No. 3623 filed in the Court of First Instance of Negros
Occidental on 27 September 1955 by one Felix Abay, a brother of Susana
Abay de Arroyo, the herein petitioner and appellant. The last will and
testament involved therein is the same involved herein. However, upon
failure of Felix Abay and his counsel Pio B. Japitana to appear at the hearing
on 5 November 1955, despite due notice, the Court there dismissed the
petition, without stating that it was a dismissal with prejudice. Two motions
for reconsideration were filed, the first on 15 November 1955 and the second
on 28 November 1955, but both were denied, the last for lack of merit. .

Civil Procedure | Rule 17| Jan252016 15

The issue now hinges on whether or not the petition for the probate of a will
filed in this special proceedings is barred by a previous special proceedings
No. 3628, the petition of which was dismissed for failure of the petitioner
and his counsel to appear on the date set for the hearing thereof. .
The appellant contends that the dismissal of the petition in the previous case
(spec. proc. No. 3628) does not bar the present (spec. proc. No. 3883), both
for the probate of the same last will and testament of the late Candelaria
Benguan, because the dismissal for failure of the petitioner and his counsel
to appear at the hearing set by the Court was not an adjudication on the
merits of the case and is not res judicata, because the parties in the
previous and present proceedings are not the same. .
The appellant's contention that the dismissal of the petition for probate in
the previous special proceedings due to failure of the then petitioner and his
counsel to appear on the date and time set for the hearing thereof is not an
adjudication on the merits must be upheld. In arriving at this conclusion the
Court has not overlooked the provisions of sections 3 and 4, Rule 30, and
section 2, Rule 73, of the Rules of Court. The probate of a will may be the
concern of one person or several persons as usually is the case. The fault of
one such person may be imputed to him alone who must suffer the
consequences of his act. Such fault cannot be imputed to other persons.
Hence, the failure of Felix Abay and his counsel to appear on the date and
time set for the hearing of the petition for the probate of a will claimed to
have been executed by the late Candelaria Benguan during her lifetime
which brought about the dismissal of the petition filed in that special
proceedings (No. 3628) cannot prejudice the right of Susana Abay de

Arroyo, the petitioner, in a subsequent petition filed for the probate of the
same will and last testament. So the provisions of the Rules cited and
invoked by the opponents-appellees cannot be made to apply to proceedings
for the probate of wills, because as already stated other parties interested in
the probate of a will for transmission of property rights to them should not
be prejudiced by the act or fault of another and because it is the policy of
the State to have such last wills and testaments submitted to Court for their
probate or legalization, as shown or indicated or evidenced by or in the
punishment provided for persons who are in possession of last wills and
testaments of deceased persons and fail or neglect to deliver or present
them to Court for probate or to deliver them to the executor named in the
will within twenty days after they know of the death of the testators or
within the same period of time after they know that they were named
executors of the will (sections 2 to 5, Rule 76). The underlying reason for the
rule that a dismissal of an action or complaint in a civil case may be a bar to
a subsequent action unless the dismissal is without prejudice is lack of
interest or inaction of the one who brought the action in court by his
complaint and for such lack of interest or inaction he should be made to
suffer. .
The order of dismissal appealed from is set aside and the petition for probate
of a will filed in special proceedings No. 3883 remanded to the Court of First
Instance of Negros Occidental for further proceedings as provided for in the
Rules of Court, without special pronouncement as to costs.