civ pro 2nd set

8/13/2019 civ pro 2nd set

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THIRD DIVISION

VICTORINO QUINAGORAN, G.R. NO. 155179

Vs. Ca and Heirs of Juan dela cruz

August 24, 2007

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- x

Before the Court is a Petition for Review on Certiorari

under Rule 45 of the Rules of Court, assailing the Decision1[1] of

the Court Appeals (CA) in CA-GR SP No. 60443 dated May 27,

2002 and its Resolution2[2] dated August 28, 2002, which denied

petitioner's Motion for Reconsideration.

The factual antecedents.

The heirs of Juan dela Cruz, represented by Senen dela

Cruz (respondents), filed on October 27, 1994 a Complaint for

Recovery of Portion of Registered Land with Compensation and

Damages against Victorino Quinagoran (petitioner) before the

Regional Trial Court (RTC) Branch XI of Tuao, Cagayan, docketed

as Civil Case No. 240-T.3[3] They alleged that they are the co-

owners of a a parcel of land containing 13,100 sq m located at

Centro, Piat, Cagayan, which they inherited from the late Juan

dela Cruz;4[4] that in the mid-70s, petitioner started occupying ahouse on the north-west portion of the property, covering 400 sq

m, by tolerance of respondents; that in 1993, they asked

petitioner to remove the house as they planned to construct a

commercial building on the property; that petitioner refused,

claiming ownership over the lot; and that they suffered damages

for their failure to use the same.5[5] Respondents prayed for the

reconveyance and surrender of the disputed 400 sq m, more or

less, and to be paid the amount of P5,000.00 monthly until the

property is vacated, attorney's fees in the amount of P20,000.00,

costs of suit and other reliefs and remedies just and

equitable.6[6]

Petitioner filed a Motion to Dismiss claiming that the

RTC has no jurisdiction over the case under Republic Act (R.A.)

No. 7691, which expanded the exclusive original jurisdiction o

the Municipal Trial Court (MTC) to include all civil actions which

involve title to, or possession of, real property, or any interest

therein which does not exceed P20,000.00. He argued that since

the 346 sq m lot which he owns adjacent to the contested

property has an assessed value of P1,730.00, the assessed value

of the lot under controversy would not be more than the said

amount.7[7]

The RTC denied petitioner's Motion to Dismiss in an

Order dated November 11, 1999, thus:

The Court finds the said motion to be

without merit. The present action on the basis of

the allegation of the complaint partakes of the

nature of action publicciana (sic) and jurisdiction

over said action lies with the Regional Trial Court,

regardless of the value of the property. This is so

because in paragraph 8 of the complaint, it is

alleged that the plaintiff demanded from the

defendant the removal of the house occupied by

the defendant and the possession of which is

Only due to Tolerance (sic) of herein plaintiffs

WHEREFORE, for lack of merit, themotion to dismiss is hereby denied.8[8]

Petitioner's Motion for Reconsideration was also denied

by the RTC.9[9]

Petitioner then went to the CA on a Petition for

Certiorariand Prohibition seeking the annulment of the Orders o

the RTC.10[10]

On May 27, 2002, the CA rendered the herein assailed

Decision dismissing petitioner's action and affirming in toto the

RTC.11[11] Pertinent portions of said Decision, read:

At the onset, we find that the complaint filed

by the Heirs of Juan dela Cruz, represented by

Senen dela Cruz adequately set forth the


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jurisdictional requirements for a case to be

cognizable by the Regional Trial Court. The

Complaint is captioned recovery of portion of

registered land and it contains the following

allegations:

7. That since plaintiffs

and defendant were neighbors,

the latter being the admitted

owner of the adjoining lot, the

former's occupancy of said

house by defendant was only

due to the tolerance of herein

plaintiffs;

8. That plaintiffs, in the

latter period of 1993, then

demanded the removal of the

subject house for the purpose of

constructing a commercial

building and which herein

defendant refused and in fact

now claims ownership of the

portion in which said house

stands;

9. That repeated

demands relative to the removal

of the subject house were hence

made but which landed on deaf

ears;

10. That a survey of the

property as owned by herein

plaintiffs clearly establishes that

the subject house is occupying

Four Hundred (400) square

meters thereof at the north-west

portion thereof, as per the

approved survey plan in the

records of the Bureau of Lands.

x x x x

It is settled that when the complaint

fails to aver facts constitutive of forcible entry

or unlawful detainer, as where it does not state

how entry was effected or how and when

dispossession started, the remedy should

either be an accion publiciana or an accion

reinvindicatoria in the proper regional trial

court. In the latter instances, jurisdiction

pertains to the Regional Trial Court.

As another legal recourse from a

simple ejectment case governed by the Revised

Rules of Summary Procedure, an accion

publiciana is the plenary action to recover the

right of possession when dispossession has

lasted more than one year or when

dispossession was effected by means other

than those mentioned in Rule 70 of the Rules

of Court. Where there is no allegation that

there was denial of possession through any of

the methods stated in Section 1, Rule 70 of the

Rules of Court, or where there is no lease

contract between the parties, the proper

remedy is the plenary action of recovery of

possession. Necessarily, the action falls within

the jurisdiction of the Regional Trial Court.

Thus, we find that the private respondents

[heirs of dela Cruz] availed of the proper

remedy when they filed the action before the

court a quo.

Undoubtedly, the respondent court

therefore did not act with grave abuse of

discretion amounting to or in excess of

jurisdiction in denying Quinagoran's Motion to

Dismiss and the Motion for Reconsideration,

thereof, because it has jurisdiction to hear and

decide the instant case.

x x x x

It would not be amiss to point out

that the nature of the action and jurisdiction of

courts are determined by the allegations in the

complaint. As correctly held by the Regional

Trial Court, the present action on the basis of

the allegation of the complaint partakes of the

nature of action publiciana and jurisdiction

over said action lies with the Regional TrialCourt regardless of the value of the property.

Therefore, we completely agree with the court

a quo's conclusion that the complaint filed by

the Heirs of Juan dela Cruz, represented by

Senen dela Cruz, is in the nature of an accion

publiciana and hence it is the Regional Trial

Court which has jurisdiction over the action,

regardless of the assessed value of the

property subject of present

controversy.12[12]

Petitioner's Motion for Reconsideration was denied on

August 28, 2002 for lack of merit.13[13]

Petitioner now comes before this Court on a petition for

review claiming that under R.A. No. 7691 the jurisdiction of the

MTC, Metropolitan Trial Court (MeTC), and Municipal Trial Court

in Cities (MTCC) was expanded to include exclusive origina

jurisdiction over civil actions when the assessed value of the

property does not exceed P20,000.00 outside Metro Manila and

P50,000.00 within Metro Manila.14[14] He likewise avers that it

is an indispensable requirement that the complaint should allege

the assessed value of the property involved.15[15] In this case


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the complaint does not allege that the assessed value of the land

in question is more than P20,000.00. There was also no tax

declaration attached to the complaint to show the assessed value

of the property. Respondents therefore failed to allege that the

RTC has jurisdiction over the instant case.16[16] The tax

declaration covering Lot No. 1807 owned by respondents and

where the herein disputed property is purportedly part -- a copy

of which petitioner submitted to the CA -- also shows that the

value of the property is only P551.00.17[17] Petitioner then

prays that the CA Decision and Resolution be annulled and set

aside and that the complaint of herein respondents before the

trial court be dismissed for lack of jurisdiction.18[18]

Respondents contend that: the petition is without

factual and legal bases, and the contested decision of the CA is

entirely in accordance with law;19[19] nowhere in the body of

their complaint before the RTC does it state that the assessed

value of the property is below P20,000.00;20[20] the contention

of petitioner in his Motion to Dismiss before the RTC that the

assessed value of the disputed lot is below P20,000.00 is based

on the assessed value of an adjacent property and no

documentary proof was shown to support the said

allegation;21[21] the tax declaration which petitioner presented,

together with his Supplemental Reply before the CA, and on the

basis of which he claims that the disputed property's assessed

value is only P551.00, should also not be given credence as thesaid tax declaration reflects the amount of P56,100.00 for the

entire property.22[22]

The question posed in the present petition is not

complicated, i.e., does the RTC have jurisdiction over all cases o

recovery of possession regardless of the value of the property

involved?

The answer is no. The doctrine on which the RTC

anchored its denial of petitioner's Motion to Dismiss, as affirmed

by the CA -- that all cases of recovery of possession or accion

publiciana lies with the regional trial courts regardless of the

value of the property -- no longer holds true. As things now

stand, a distinction must be made between those properties the

assessed value of which is below P20,000.00, if outside Metro

Manila; and P50,000.00, if within.

Republic Act No. 769123[23] which amended Bata

PambansaBlg. 12924[24] and which was already in effect25[25

when respondents filed their complaint with the RTC on October

27, 1994,26[26] expressly provides:

SEC. 19. Jurisdiction in civil cases

Regional Trial Courts shall exerciseexclusive original jurisdiction:

x x x x

(2) In all civil actions whichinvolve the title to or possession of, real

property, or any interest therein, where the

assessed value of the property involved

exceeds Twenty thousand pesos(P20,000.00) or, for civil actions in Metro

Manila, where such value exceeds Fifty

thousand pesos (P50,000.00) except for

forcible entry into and unlawful detainer of

lands or buildings, original jurisdiction over

which is conferred upon the Metropolitan Trial

Courts, Municipal Trial Courts, and Municipal

Circuit Trial Courts.

x x x x

SEC. 33. Jurisdiction of Metropolitan

Trial Courts, Municipal Trial Courts and

Municipal Circuit Trial Courts in Civil Cases. ---

Metropolitan Trial Courts, Municipal Trial

Courts, and Municipal Circuit Trial Courts

shall exercise:


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x x x x

(3) Exclusive original jurisdiction in

all civil actions which involve title to, orpossession of , real property, or any

interest therein where the assessed valueof the property or interest therein does not

exceed Twenty thousand pesos

(P20,000.00) or, in civil actions in Metro

Manila, where such assessed value does not

exceed Fifty thousand pesos (P50,000.00)

exclusive of interest, damages or whatever

kind, attorney's fees, litigation expenses and

costs: Provided That in cases of land not

declared for taxation purposes, the value of

such property shall be determined by the

assessed value of the adjacent lots.(Emphasis

supplied)

The Court has also declared that all cases involving title

to or possession of real property with an assessed value of less

than P20,000.00 if outside Metro Manila, falls under the original

jurisdiction of the municipal trial court.27[27]

In Atuel v. Valdez28[28] the Court likewise expresslystated that:

Jurisdiction over an accion publiciana is vested in

a court of general jurisdiction. Specifically, the

regional trial court exercises exclusive original

jurisdiction in all civil actions which involve x x x

possession of real property. However, if the

assessed value of the real property involved

does not exceed P50,000.00 in Metro Manila,and P20,000.00 outside of Metro Manila, the

municipal trial court exercises jurisdictionover actions to recover possession of real

property.29[29]

That settled, the next point of contention is whether the

complaint must allege the assessed value of the property

involved. Petitioner maintains that there should be such an

allegation, while respondents claim the opposite.

In no uncertain terms, the Court has already held that a

complaint must allege the assessed value of the real property

subject of the complaint or the interest thereon to determine

which court has jurisdiction over the action.30[30] This is

because the nature of the action and which court has original and

exclusive jurisdiction over the same is determined by the

material allegations of the complaint, the type of relief prayed for

by the plaintiff and the law in effect when the action is filed

irrespective of whether the plaintiffs are entitled to some or all of

the claims asserted therein.31[31]

In this case, the complaint denominated as Recovery o

Portion of Registered Land with Compensation and Damages,reads:

1. That plaintiffs are the only

direct and legitimate heirs of the late Juan dela

Cruz, who died intestate on February 3, 1977,

and are all residents of Centro, Piat, Cagayan;

x x x x

4. That plaintiffs inherited from x

x x Juan dela Cruz x x x a certain parcel of land x x

x containing an area of 13,111 square meters.

5. That sometime in the mid-

1960's, a house was erected on the north-west

portion of the aforedescribed lot x x x.

x x x x

7. That since plaintiffs and

defendant were neighbors, the latter being the

admitted owner of the adjoining lot, the former's

occupancy of said house by defendant was only

due to the tolerance of herein plaintiffs;

8. That plaintiffs, in the latter

period of 1993, then demanded the removal of

the subject house for the purpose of constructing

a commercial building and which herein

defendant refused and in fact now claims

ownership of the portion in which said house

stands;

9. That repeated demands

relative to the removal of the subject house were

hence made but which landed on deaf ears;

10. That a survey of the property

as owned by herein plaintiffs clearly establishes

that the subject house is occupying Four Hundred

(400) square meters thereof at the north-west

portion thereof, as per the approved survey plan

in the records of the Bureau of Lands.32[32]


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Nowhere in said complaint was the assessed value of

the subject property ever mentioned. There is therefore no

showing on the face of the complaint that the RTC has exclusive

jurisdiction over the action of the respondents.33[33] Indeed,

absent any allegation in the complaint of the assessed value of

the property, it cannot be determined whether the RTC or the

MTC has original and exclusive jurisdiction over the petitioner's

action.34[34] The courts cannot take judicial notice of the

assessed or market value of the land.35[35]

Jurisdiction of the court does not depend upon the

answer of the defendant or even upon agreement, waiver or

acquiescence of the parties.36[36] Indeed, the jurisdiction of the

court over the nature of the action and the subject matter thereof

cannot be made to depend upon the defenses set up in the court

or upon a motion to dismiss for, otherwise, the question of

jurisdiction would depend almost entirely on the

defendant.37[37]

Considering that the respondents failed to allege in

their complaint the assessed value of the subject property, the

RTC seriously erred in denying the motion to dismiss.

Consequently, all proceedings in the RTC are null and void,38[38]

and the CA erred in affirming the RTC.39[39]

WHEREFORE, the petition is GRANTED. The Court ofAppeals's Decision in CA-GR SP No. 60443 dated May 27, 2002

and its Resolution dated August 28, 2002, are REVERSED and

SETASIDE. The Regional Trial Courts Orders dated November

11, 1999 and May 11, 2000, and all proceedings therein are

declared NULL and VOID. The complaint in Civil Case No. 240-T

is dismissed without prejudice.

No costs.

SO ORDERED.

G.R. No. 149554 July 1, 2003

SPOUSES JORGE J. HUGUETE and YOLANDA B. HUGUETEpetitioners,

vs.

SPOUSES TEOFEDO AMARILLO EMBUDO and MARITESHUGUETE-EMBUDO, respondents.

YNARES-SANTIAGO,J.:This is a petition for review assailing the Orders dated June 27

20011and July 26, 20012of the Regional Trial Court of Cebu City

Branch 7, in Civil Case No. CEB-24925.

On March 2, 2000, petitioner spouses Jorge and Yolanda Huguete

instituted against respondent spouses Teofredo Amarillo

Embudo and Marites Huguete-Embudo a complaint for

"Annulment of TCT No. 99694, Tax Declaration No. 46493, and

Deed of Sale, Partition, Damages and Attorneys Fees," docketedas Civil Case No. CEB-24925 of the Regional Trial Court of Cebu

City, Branch 7. Petitioners alleged that their son-in-law

respondent Teofredo, sold to them a 50-square meter portion of

his 150-square meter parcel of land, known as Lot No. 1920-F-2

situated in San Isidro, Talisay, Cebu, for a consideration o

P15,000.00; that Teofredo acquired the lot from Ma. Lourdes

Villaber-Padillo by virtue of a deed of sale,3after which TransferCertificate of Title No. 99694 was issued solely in his name; that

despite demands, Teofredo refused to partition the lot between

them.

On March 15, 2001, respondents filed a Motion to Dismiss4 the

complaint on the ground of lack of jurisdiction over the subject

matter of the case, arguing that the total assessed value of the

subject land was only P15,000.00 which falls within the exclusive

jurisdiction of the Municipal Trial Court, pursuant to Section

33(3)5of Batas Pambansa Blg. 129, as amended by Republic Act

No. 7691.6

Petitioners filed an Opposition to the Motion to Dismiss7alleging

that the subject matter of the action is incapable of pecuniary

estimation and, therefore, is cognizable by the Regional Tria

Court, as provided by Section 19(1) of B.P. 129, as amended.8The trial court dismissed the complaint for lack of jurisdiction

Petitioners filed a Motion for Reconsideration,9which was denied

on July 26, 2001.

Hence, this petition for review based on the following errors:

I

THE HONORABLE COURT ERRED IN HOLDING THAT IT

HAS NO JURISDICTION OVER THE CASE PURSUANT TO

SECTION 33 (3) OF BATAS PAMBANSA BILANG 129 IN

UTTER DISREGARD OF SECTION 19 (1) OF THE SAME

LAW AS WELL AS SETTLED JURISPRUDENCE

ENUNCIATED IN RUSSEL VS. VESTIL, 304 SCRA 738

(MARCH 17, 1999) WHICH, WITH DUE RESPECT, WAS

TAKEN OUT OF CONTEXT.

II

THE HONORABLE COURT COMMITTED AN ERROR IN

NOT HOLDING THAT RESPONDENTS WHO SEEK

AFFIRMATIVE RELIEF AND THEREBY INVOKE THE

AUTHORITY OF THE COURT IN THEIR COUNTERCLAIM

ARE ESTOPPED TO DENY THE JURISDICTION OF THE

HONORABLE COURT.10

The petition lacks merit.

Petitioners maintain that the complaint filed before the Regiona

Trial Court is for the annulment of deed of sale and partition, and

is thus incapable of pecuniary estimation. Respondents, on the

other hand, insist that the action is one for annulment of title and

since the assessed value of the property as stated in the


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complaint is P15,000.00, it falls within the exclusive jurisdiction

of the Municipal Trial Court.

The pertinent portions of the complaint alleged:

4. Sometime in the year 1995, Teofredo A. Embudo, the

son-in-law of plaintiffs offered them portion of Lot No.

1920-F-2, situated in San Isidro, Talisay, Cebu, which

defendants bought on installment basis from Ma.

Lourdes Villaber-Padillo. Desirous to live near their

daughter and grandchildren, they accepted defendantsoffer. Immediately, plaintiffs paid defendants the sum of

FIFTEEN THOUSAND PESOS (P15,000.00) as full

consideration and payment of the purchase of 50-

square meter lot at a price of THREE HUNDRED PESOS

(P300.00) per square meter;

5. Happily, plaintiffs built their house on the portion

they bought from defendants which is adjacent to

defendants house. Plaintiffs were issued TaxDeclaration No. 53170 for the house, copy is hereto

attached to form part hereof and marked as Annex "A";

6. Notwithstanding repeated demands for the execution

of the Deed of Sale, defendants with insidious

machination led plaintiffs to believe that the necessary

document of conveyance could not as yet be executed

for the reason that they have not yet paid in full their

obligation to Ma. Lourdes Villaber-Padillo, the original

owner of the lot in question, when in truth and in fact,as plaintiffs came to know later, that the aforesaid

defendants were already in possession of a Deed of Sale

over the entire lot in litigation in which it appeared that

they are the sole buyers of the lot, thusly consolidating

their ownership of the entire lot to the exclusion of the

plaintiffs. A copy of the Deed of Sale is hereto attached

to form part hereof and marked as Annex "B."

7. As a way to further their fraudulent design,

defendants secured the issuance of Transfer Certificate

of Title No. T-99694 solely in their names on the basis

of the Deed of Sale aforementioned (Annex "A" hereof),

without the knowledge of the plaintiffs. A copy of the

aforesaid Transfer Certificate of Title is hereto attached

as an integral part hereof and marked as Annex "C."

8. Since considerable time had already elapsed that

defendants had given plaintiffs a run-around, plaintiffs

then demanded for the partition of the lot, segregating a

portion in which their residential house stands, and

despite such demand defendants, without qualm of

conscience refused and still refuse to partition the lot;

xxx xxx xxx;

PRAYER

WHEREFORE, premises considered, this Honorable

Court is most respectfully prayed to render judgment in

favor of plaintiffs and against defendants, ordering

1. Defendants to partition, divide and segregate a

portion on which the house of plaintiffs is situated, with

an area of Fifty (50) Square Meters;

2. That the Deed of Sale dated December 28, 1995entered into by and between defendants and the

previous owner of the lot in question be annulled and

cancelled;

3. The Register of Deeds of the Province of Cebu to

annul/cancel Transfer Certificate of Title No. 99694 in

the name of the defendants and in lieu thereof directing

him to issue Transfer Certificate of Title in favor of

plaintiffs for the 50-square meter lot and another

Transfer Certificate of Title in favor of defendants for

the remaining 100-square meter lot;

4. The Municipal Assessor of Talisay, Cebu to cancel Tax

Declaration No. 46493 in the name of the defendants

and directing him to issue Tax Declaration in the name

of the defendants for the 50-square meter lot and

another Tax Declaration in the name of the plaintiffs for

the remaining 100-square meter lot;

xxx xxx xxx.11

In Caiza v. Court of Appeals,12it was held that what determines

the nature of an action as well as which court has jurisdiction

over it are the allegations of the complaint and the character o

the relief sought. Moreover, in Singsong v. Isabela Sawmill, 13we

ruled that:

In determining whether an action is one the subject

matter of which is not capable of pecuniary estimation

this Court has adopted the criterion of first ascertaining

the nature of the principal action or remedy sought. If it

is primarily for the recovery of a sum of money, the

claim is considered capable of pecuniary estimation

and whether the jurisdiction is in the municipal courts

or in the courts of first instance would depend on the

amount of the claim. However, where the basic issue is

something other than the right to recover a sum o

money, where the money claim is purely incidental to

or a consequence of, the principal relief sought, this

Court has considered such actions as cases where the

subject of the litigation may not be estimated in terms

of money, and are cognizable exclusively by courts o

first instance (now Regional Trial Courts).

The reliance of the petitioners on the case of Russell v. Vestil 14ismisplaced. In the said case, petitioners sought the annulment o

the document entitled, "Declaration of Heirs and Deed o

Confirmation of Previous Oral Partition," whereby respondents

declared themselves as the only heirs of the late Spouses

Casimero and Cesaria Tautho to the exclusion of petitioners

Petitioners brought the action in order for them to be recognized

as heirs in the partition of the property of the deceased. It was

held that the action to annul the said deed was incapable o

pecuniary estimation and the consequent annulment of title and

partition of the property was merely incidental to the main

action. Indeed, it was also ruled in said case:

While actions under Section. 33(3) of B.P. 129 are also

incapable of pecuniary estimation, the law specifically

mandates that they are cognizable by the MTC, METC, or

MCTC where the assessed value of the real property

involved does not exceed P20,000.00 in Metro Manila

or P50,000.00, if located elsewhere. x x x. 15

In the case at bar, the principal purpose of petitioners in filing the

complaint was to secure title to the 50-square meter portion of

the property which they purchased from respondents.

Petitioners cause of action is based on their right as purchaser o

the 50-square meter portion of the land from respondents. They

pray that they be declared owners of the property sold. Thus

their complaint involved title to real property or any interest

therein. The alleged value of the land which they purchased was

P15,000.00, which was within the jurisdiction of Municipal Tria

Court. The annulment of the deed of sale between Ma. Lourdes

Villaber-Padillo and respondents, as well as of TCT No. 99694

were prayed for in the complaint because they were necessarybefore the lot may be partitioned and the 50-square meter

portion subject thereof may be conveyed to petitioners.

Petitioners argument that the present action is one incapable ofpecuniary estimation considering that it is for annulment of deed

of sale and partition is not well-taken. As stated above, the nature

of an action is not determined by what is stated in the caption o

the complaint but by the allegations of the complaint and the

reliefs prayed for. Where, as in this case, the ultimate objective o

the plaintiffs is to obtain title to real property, it should be filed in

the proper court having jurisdiction over the assessed value o

the property subject thereof.

WHEREFORE, in view of the foregoing, the instant petition forreview is DENIED. The Order dated June 27, 2001 of the Regional


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Trial Court of Cebu City, Branch 7, dismissing Civil Case No. CEB-

24925, and its Order dated July 26, 2001 denying petitionersMotion for Reconsideration, are AFFIRMED.

SO ORDERED.

G.R. No. L-34314 May 13, 1975SOFIA PASTOR DE MIDGELY, petitioner,

vs.

THE HONORABLE PIO B. FERANDOS, Judge of the Court of

First Instance of Cebu, Branch IX and LEWELYN BARLITO

QUEMADA, Special Administrator of the Testate and

Intestate Estate of ALVARO PASTOR Y TATO, respondents.Abelardo P. Cecilio for petitioner.

Efipanio A. Anoos for private respondents.

AQUINO,J.:+.wph!1

Sofia Pastor de Midgely, a British subject residing at Cura

Planelles, 10 Cura Jardin, Alicante, Spain, filed this special civil

action of certiorari against Judge Pio B. Ferandos and Lewelyn

Barlito Quemada in order to set aside the Judge's order dated

May 8, 1971 which denied her motion to dismiss based on lack of

jurisdiction and on article 222 of the Civil Code.

She prayed for a declaration that the Court of First Instance of

Cebu, Toledo City, Branch IX has no jurisdiction over her person

and properties and for the dismissal of the complaint against her

in Civil Case No. 274-T of that court. The ultimate facts found in

the prolix pleadings are as follows:Alvaro Pastor, Sr., a Spanish citizen, was allegedly the owner of

properties and rights in mining claims located in Cebu and

supposedly held in trust by his son, Alvaro Pastor, Jr., and his

daughter-in-law, Maria Elena Achaval-Pastor. Pastor, Sr. died on

June 5, 1966. He was survived by his wife, Sofia Pastor y Bossio

(who died on October 21, 1966) and by his two legitimate

children, Mrs. Midgely and Alvaro Pastor, Jr. Respondent

Quemada claims to be his illegitimate child.

Alvaro Pastor, Sr. in his supposed holographic will dated July 31,

1961 devised to Lewelyn Barlito Quemada thirty percent of his

forty-two percent share in certain mining claims and real

properties. In 1970 the alleged will was presented for probate in

Special Proceedings No. 3128-R assigned to Branch I in Cebu City

of the Court of First Instance of Cebu. Quemada was appointed

special administrator of the decedent's estate.

As such administrator and as heir of Alvaro Pastor, Sr., Quemada

filed in the Court of First Instance of Cebu at Toledo City a

complaint dated December 7, 1970 against the spouses Alvaro

Pastor, Jr. and Maria Elena Achaval, Mrs. Midgely, Atlas

Consolidated Mining and Development Corporation and Caltex

(Philippines), Inc. to settle the question of ownership over certain

real properties and the rights in some mining claims, to obtain an

accounting and payment of the royalties and income thereof and

for the payment of damages amounting to P25,000. Quemada's

theory is that those properties and income belong to the estate of

Alvaro Pastor, Sr.

Allegedly without complying with the requirements of Rule 14 of

the Rules of Court, Quemada caused extraterritorial service of

summons to be made in that case through the Department ofForeign Affairs and the Philippine Embassy in Madrid, Spain,

which effected the service of the summons by registered mail

upon Mrs. Midgely and the Pastor, Jr. spouses at their respective

address in Alicante and Barcelona, Spain.

Alvaro Pastor, Jr. and Mrs. Midgely, in their respective letters to

the Philippine Embassy dated February 11 and 12, 1971,

acknowledged the service of summons but reserved the right to

contest the courts jurisdiction over their persons. The Minister-

Counselor of the Embassy forwarded those letters to the Clerk of

Court and apprised him of the manner the summons was served.

Through counsel, Mrs. Midgely and the Pastor, Jr. spouses

entered a special appearance and filed a motion to dismiss on the

ground of lack of jurisdiction. They contended that as

nonresidents they could be summoned only with leave of court

and that the requirements laid down in section 17 of Rule 14

should have been observed. As additional, ground they alleged

that the complaint does not show that earnest efforts toward a

compromise have been made, as required in article 222 of the

Civil Code in suits between members of the same family (See sec

1[j], Rule 16, Rules of Court). Quemada opposed the motion to

dismiss.

As already stated, Judge Ferandos denied the motion. He ruled

that Mrs. Midgely and the Pastor, Jr. spouses had been properly

summoned. He opined that article 222 was inapplicable to the

case because Quemada's civil status was involved and article

2035 of the Civil Code prohibits a compromise on a person's civil

status. He gave Mrs. Midgely and the Pastor, Jr. spouses seventy

days from February 12, 1971 within which to file their answer

deducting from that period the time from March 10 to May 8

1971 when their motion to dismiss was pending.

Mrs. Midgely's motion for reconsideration of the order denying

her motion to dismiss was denied by Judge Ferandos in his order

of September 27, 1971 wherein he ruled that the action filed by

Quemada was for the recovery of real properties and real rights

He gave Mrs. Midgely and the Pastor, Jr. spouses sixty days from

notice within which to answer the complaint and directed that a

copy of his order be sent to them through the Philippine Embassy

in Madrid. The petition for certiorari herein was filed on

November 3, 1971.It was given due course. Respondent Quemada in his answer

alleged that inasmuch as his action against Mrs. Midgely concerns

property located here in which she claims an interest, it is no

necessary that jurisdiction over her person be acquired. The

service of summons upon her was not for the purpose of

acquiring jurisdiction over her person but merely as a matter of

due process.

Quemada alleged that as administrator he has been in actua

possession of two parcels of land owned by Alvaro Pastor, Jr

located at Biga, Toledo City with areas of 55.3 hectares and 5,225

square meters, respectively. They were included in the inventory

submitted by him to the probate court in the testate proceeding

for his putative father's estate. His answer contains annexes

attesting to his efforts to recover possession of the other

properties of the decedent.

In the meantime the spouses Alvaro Pastor, Jr. and Maria Elena

Achaval filed a verified answer to the complaint in Civil Case No

274-T dated December 5, 1971. Their answer was filed through

the same counsel who has been representing Mrs. Midgely. The

said spouses-alleged that they were not waiving their defense of

lack of jurisdiction over their persons and over the subject matter

of the action. They claimed to be the owners of the properties

described in the complaint.

It should be noted that in the testate proceeding Mrs. Midgely and

Alvaro Pastor, Jr. had filed a verified opposition dated January 26

1971. They prayed for the dismissal of the proceeding. (The

holographic will was probated in the lower court's order o

December 5, 1972 which was appealed to the Court of Appeals by

Mrs. Midgely and Alvaro Pastor, Jr., CA-G.R. No. 52961-R).On May 10, 1972, this Court issued a writ of preliminary

injunction suspending all proceedings in Civil Case No. 274-T.

Contempt incident. That writ of preliminary injunction

spawned the contempt incident in this case. Mrs. Midgely in a

motion dated March 26, 1974 charged that Quemada committed

"unlawful interference of the case under injunction" and tried to

circumvent the writ (1) by taking possession of two parcels of

land in Toledo City and (2) by asking the probate court to stop

Altas Consolidated Mining and Development Corporation from

remitting to Mrs. Midgely and the Pastor, Jr. spouses the

landowner's share of the income from the Toledo City properties

with the result that the probate court ordered the payment of

said income to Quemada.


8/10

Quemada in his opposition to the motion countered that he had

maintained the status quo in Civil Case No. 274-T, as decreed in

the writ of preliminary injunction; that the overseer delivered in

1971 the possession of the two parcels of land to him in his

capacity as administrator or before the issuance of the writ, and

that the order of Judge Juan Y. Reyes in Special Proceedings No.

3128-R did not constitute an interference with Civil Case No. 274-

T which was assigned to Judge Ferandos.

Quemada through counsel filed a counter-charge for contempt

against Abelardo Cecilio, the counsel of Mrs. Midgely, for having

made false and malicious statements in his motion to declare

Quemada in contempt of court. Quemada was referring to Atty.

Cecilio's allegations that the writ of preliminary injunction was

intended to prevent Quemada from taking possession of the

properties involved in Civil Case No. 274-T and that,

notwithstanding the writ, he took possession of the

aforementioned two parcels of land. Quemada in his

memorandum further charged Cecilio with purporting to

represent Alvaro Pastor, Jr. in this case although the latter is not a

party herein.

Quemada branded the acts of Cecilio as misbehavior of an officer

of the court and as improper conduct tending to degrade and

obstruct the administration of justice. Quemada later manifested

that he had turned over to Atty. Cecilio the two checks for the

land-owner's share of the income from the Toledo City

properties.The contempt charges were investigated by the Legal Officer of

this Court. After going over the record, we find that both

contempt charges are devoid of merit.

The writ issued by this Court enjoined Judge Ferandos and

Quemada "from holding hearings, trial and proceedings and/or

from further proceeding with Civil Case No. 274-T". It froze the

case. It was a preventive injunction.

The undisputed fact is that in February, 1971 Quemada as

administrator was already in possession of the two parcels of

land in Toledo City. The fact that he continued to remain in

possession after the injunction was issued on May 10, 1972 (Exh.

16) was not a violation of the injunction which was not

mandatory in character.

As to the attempt of Quemada in Special Proceeding No. 3128-R

in his capacity as administrator to get hold of the land-owner's

share of the income derived from the properties involved in Civil

Case No. 274-T, it is apparent that he did so in good faith and on

the advice of his lawyer who actually filed the necessary motion.

The probate at first upheld his right to receive that income. Later

he complied with the court's order to turn over the checks to the

counsel of Alvaro Pastor, Jr. Inasmuch as that incident transpired

in the testamentary proceeding and as Quemada committed the

alleged contemptuous act through his counsel, the same cannot

be properly characterized as a willful interference with the

injunction issued by this Court in Civil Case No. 274-T.

On the other hand, Atty. Cecilio's free-wheeling allegations in his

motion to declare Quemada in contempt of court, which

averments were tailored to support his notion that Quemada

circumvented the injunction, may be viewed simply as amanifestation of a lawyer's propensity to slant the presentation

of his client's case so that it would appear to be meritorious. Such

a tactic is generally tolerated by understanding judges. They are

not deceived by the exaggerations and distortions in a counsel's

lopsided submission of his client's case especially where, as in

this case, the alert opposing counsel calls the court's attention to

that fact.

"Contempt of court presupposes a contumacious attitude, a

flouting or arrogant belligerence, a defiance of the court"

(Matutina vs. Judge Buslon and the Sheriff of Surigao, 109 Phil.

140, 142). It is an offense against the authority and dignity of the

court. That is not true in this case. The contempt charges should

be dismissed.

The certiorari case. The petitioner injected into this case issues

which involve the merits of Quemada's action for reconveyance

of certain properties and which are not germane to the instant

certiorari action. Those issues will be resolved by the lower court

in the main case.

The only legal issue to be resolved is whether Judge Ferandos

gravely abused his discretion in denying Mrs. Midgely's motion to

dismiss based on the grounds of (a) lack of jurisdiction over her

person and (b) lack of a showing that earnest efforts were

exerted to effect a compromise.

The said order is interlocutory. It could eventually be reviewed in

the appeal in the main case. While this Court generally does not

entertain a petition for certiorariquestioning the propriety of an

interlocutory order, yet when a grave abuse of discretion has

been patently committed, or the lower court has acted

capriciously and whimsically, then it devolves upon this Court to

exercise its supervisory authority and to correct the error

committed (Manila Electric Co. and Sheriff of Quezon City vs. Hon

Enriquez, etc. and Espinosa, 110 Phil. 499, 503; Abad Santos vs

Province of Tarlac, 67 Phil. 480).

We are of the opinion that the lower court has acquired

jurisdiction over the person of Mrs. Midgely by reason of her

voluntary appearance. The reservation in her motion to dismiss

that she was making a special appearance to contest the court's

jurisdiction over her person may be disregarded.

It may be disregarded because it was nullified by the fact that inher motion to dismiss she relied not only on the ground of lack of

jurisdiction over the person but also on the ground that there

was no showing that earnest efforts were exerted to compromise

the case and because she prayed "for such other relief as" may be

deemed "appropriate and proper".

Thus, it was held that where the defendant corporation (which

was not properly summoned because the summons was served

upon its lawyer) filed a motion to dismiss on the ground of lack of

jurisdiction over its person but in the same motion it prayed for

the dismissal of the complaint on the ground of prescription, i

was held that, by invoking prescription, it necessarily admitted

the court's jurisdiction upon its, person and, therefore, it was

deemed to have abandoned its special appearance and

voluntarily submitted itself to the court's jurisdiction (Republic

vs. Ker & Co., Ltd., 64 O. G. 3761, 18 SCRA 207, 213-214 citing

Flores vs. Zurbito, 37 Phil. 746 and Menghra vs. Tarachand and

Rewachand, 67 Phil. 286).

"When the appearance is by motion for the purpose of objecting

to the jurisdiction of the court over the person, it must be for the

sole and separate purpose of objecting to the jurisdiction of the

court. If his motion is for any other purpose than to object to the

jurisdiction of the court over his person, he thereby submits

himself to the jurisdiction of the court. A special appearance by

motion made for the purpose of objecting to the jurisdiction of

the court over the person will be held to be a general appearance

if the party in said motion should, for example, ask for a dismissa

of the action upon the further ground that the court had no

jurisdiction over the subject matter." (Syllabus, Flores vs. Zurbito

supra, at page 751. That rule was followed in Ocampo vs. Minaand Arejola, 41 Phil. 308).

Where the defendant contended that the court did not acquire

jurisdiction over his person by means of the publication of the

corresponding summons in Hawaii, where he was residing

because the action did not relate to personal or real properties

situated in the Philippines in which the defendant had or claimed

a lien or interest, actual or contingent, it was held that the said

defendant nevertheless submitted to the court's jurisdiction

when he filed a motion wherein he contested the court's

jurisdiction over his person and at the same time prayed that he

be relieved from the effects of the judgment by default, attaching

to his motion an affidavit of merits. "He thereby impliedly waived

his special appearance assailing the jurisdiction of the court over


9/10

his person, and voluntarily submitted to the jurisdiction of said

court." (Menghra vs. Tarachand and Rewachand, supra. See

Tenchavez vs. Escao, L-19671, September 14, 1966, 17 SCRA

684 and Sharruf vs. Bubla, L-17029, September 30, 1964, 12

SCRA 79 where it was held that a non-resident alien, by filing his

complaint in a Philippine court, submits thereby to its

jurisdiction and the court acquires jurisdiction over him even if

as a matter of fact he had never been able to enter the

Philippines).

Having shown that Mrs. Midgely had voluntarily submitted to the

lower court's jurisdiction when she filed her motion to dismiss

(see sec. 23, Rule 14, Rules of Court), the inevitable conclusion is

that it did not commit any grave abuse of discretion in denying

her motion to dismiss.

In petitioner's lengthy memorandum and reply she confined her

arguments to the jurisdictional issue. She even argued that the

lower court does not have jurisdiction over the res, a contention

that is palpably baseless.

She did not discuss the second ground of her motion to dismiss,

which is non-compliance with the requirement of article 222 of

the Civil Code on compromise of intra-family disputes. She was

presumably convinced by the lower court's argument that such a

compromise would violate the prohibition in article 2035 of the

Civil Code against compromise on a person's civil status (See De

Raquiza vs. Castellvi, L-17630, October 31, 1963, 9 SCRA 395).

The case may be viewed from another angle. Supposing arguendothat the lower court did not acquire jurisdiction over the person

of Mrs. Midgely, still her motion to dismiss was properly denied

because Quemada's action against her may be regarded as a quasi

in rem action where jurisdiction over the person of the

nonresident defendant is not necessary and where service of

summons is required only for the purpose of complying with the

requirement of due process (Perkins vs. Dizon, 69 Phil. 186;

Banco Espaol-Filipino vs. Palanca, 37 Phil. 921; Mabanag vs.

Gallemore, 81 Phil. 254).

An action quasi in rem is an action between parties where the

direct object is to reach and dispose of property owned by them,

or of some interest therein (1 Am Jur 2nd 574; State ex rel. South

Brevard Drainage Dist. vs. Smith, 170 So. 440, 126 Fla. 72).

Quemada's action falls within that category.

With respect to the extraterritorial service of summons to a

nonresident defendant like Mrs. Midgely, Rule 14 of the Rules of

Court provides:t.hqw

SEC. 17. Extraterritorial service. When the

defendant does not reside and is not found in

the Philippines and the action affects the

personal status of the plaintiff or relates to, or

the subject of which is, property within the

Philippines, in which the defendant has or

claims a lien or interest, actual or contingent,

or in which the relief demanded consists,

wholly or in part, in excluding the defendant

from any interest therein, or the property of

the defendant has been attached within the

Philippines, service may, by leave of court, beeffected out of the Philippines by personal

service as under section 7; or by publication in

a newspaper of general circulation in such

places and for such time as the court may

order, in which case a copy of the summons

and order of the court shall be sent by

registered mail to the last known address of

the defendant, or in any other manner the

court may deem sufficient. Any order granting

such leave shall specify a reasonable time,

which shall not be less than sixty (60) days

after notice, within which the defendant must

answer.

Under section 17, extraterritorial service of summons is proper

(1) when the action affects the personal status of the plaintiff; (2)

when the action relates to, or the subject of which is, property

within the Philippines, in which the defendant has or claims a lien

or interest, actual or contingent; (3) when the relief demanded in

such an action consists, wholly or in part, in excluding the

defendant from any interest in property located in the

Philippines, and (4) when defendant nonresident's property has

been attached within the Philippines (Sec. 17, Rule 14, Rules of

Court).

In any of such four cases, the service of summons may, with leave

of court, be effected out of the Philippines in three ways: (1) by

personal service; (2) by publication in a newspaper of genera

circulation in such places and for such time as the court may

order, in which case a copy of the summons and order of the

court should be sent by registered mail to the last known address

of the defendant, and (3) service of summons may be effected in

any other manner which the court may deem sufficient. That

third mode of extraterritorial service of summons was

substantially complied with in this case.

In Civil Case No. 274-T the subject matter of the action for

reconveyance consists of properties of Alvaro Pastor, Sr. which

are located in Cebu. Mrs. Midgely claims an actual interest in

those properties. She has been receiving a share of the income

therefrom. Therefore, the extraterritorial service of summons

upon her was proper. As already noted, the action against her isquasi in rem. (See Brown vs. Brown, 113 Phil. 442).

The record does not show whether Judge Ferandos was

consulted by the Clerk of Court and by Quemada's counsel when

the service of summons was effected through the Philippine

Embassy in Madrid. But although there was no court order

allowing service in that manner, that mode of service was later

sanctioned or ratified by Judge Ferandos in his order of May 8

1971. In another order he corrected the defect in the summons

by giving Mrs. Midgely the sixty-day reglementary period for

answering the complaint.

In the Banco Espaol-Filipino case, supra, the failure of the clerk

of court, in a case of foreclosure of a mortgage executed by a non-

resident defendant (which is an action quasi in rem) to mail to the

defendant's last place of residence copies of the summons and

complaint, as required in section 399 of Act 190 (now section 17

of Rule 14) was held not to have affected the court's jurisdiction

over the res.

In the Perkins case, supra, Eugene Arthur Perkins sued in the

Court of First Instance of Manila the Benguet Consolidated

Mining Company, a domestic firm, together with Idonah Slade

Perkins and George Engelhard, two nonresidents, who were

summoned by publication. The service of summons was based on

section 398 of Act 190 (from which section 17 of Rule 14 was

partly taken) which provides that service of summons by

publication may be made on a nonresident in "an action which

relates to, or the subject of which is, real or personal property

within the Islands, in which such person defendant or foreign

corporation defendant, has or claims a lien or interest, actual or

contingent, or in which the relief demanded consists wholly or inpart in excluding such person or foreign corporation from any

interest therein."

Eugene Arthur Perkins in his complaint prayed that Engelhard

and Idonah Slade Perkins, "be adjudged without interest" in

certain shares of stock of the Benguet Consolidated Mining

Company and be excluded from any claim involving such shares.

Idonah Slade Perkins challenged the court's jurisdiction over her

person. Judge Arsenio P. Dizon overruled her objection. She filed

in this Court a certiorari proceeding wherein she prayed that the

summons by publication issued against her be declared void and

that Judge Dizon be permanently prohibited from taking any

action in the case.


10/10

This Court held that the action filed by Eugene Arthur Perkins

against the two non-residents was a quasi in rem action and not

an action in personam. In that action plaintiff Perkins sought to

exclude Idonah Slade Perkins from any interest in property

located in the Philippines consisting shares of stock in a domestic

sociedad anomina.

This Court clarified that in a quasi in rem action jurisdiction over

the person of the nonresident defendant is not essential. The

service of summons by publication is required "merely to satisfy

the constitutional requirement of due process". The judgment of

the court in the case would settle the title to the shares of stock

and to that extent it partakes of the nature of a judgment in rem.

Consequently, the lower court had jurisdiction to try the case

even if it had not acquired jurisdiction over the person of Idonah

Slade Perkins. The judgment would be confined to the res. No

personal judgment could be rendered against the non-resident.

Other considerations may be adduced to indicate the frivolous

character of Mrs. Midgely's petition for certiorari. There is the

circumstance that she actually received the summons and a copy

of the complaint. Thus, she cannot complain that she was

unaware of the action against her. The requirement of due

process has been satisfied. She is cognizant not only of

Quemada's complaint in Civil Case No. 274-T in Branch IX of the

Court of First Instance of Cebu at Toledo City but also of the

testamentary proceeding instituted earlier by Quemada for the

settlement of the estate of Alvaro Pastor, Sr. in the Cebu CityBranch I of the Court of First Instance of Cebu. In that proceeding

she and her brother, Alvaro Pastor, Jr., through her counsel in this

case, submitted to the court's jurisdiction by filing an opposition

to Quemada's petition.

It should be noted that Civil Case No. 274-T is related to the

testamentary proceeding (which is a proceeding in rem par

excellance) because the former case was filed by Quemada for the

purpose of recovering the properties which, according to his

understanding, belong to the estate of Alvaro Pastor, Sr. and

which are held by Mrs. Midgely and the spouses Alvaro Pastor, Jr.

and Maria Elena Achaval.

WHEREFORE, the contempt charges and the petition for

certiorari are dismissed. Costs against the petitioner.

SO ORDERED.

Documents

civ pro 2nd set