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UPDATES IN CIVIL PROCEDURE

Zenaida T. Galapate-Laguilles
Assoiate !ustie
COURT O" APPEALS
CAUSE OF ACTION:
#.DOLORES ADORA $ACASLANG %s.
RENATO AND $EL&A ZA$ORA' G.R. No. #()*+('$a, *-' .-##.
In resolving whether the complaint states a cause of actionor not, only the facts
alleged in the complaint are considered. The test is whether the court can render a valid
judgment on the complaint based on the facts alleged and the prayer asked for.

Only
ultimate facts, not legal conclusions or evidentiary facts, are considered for purposes of
applying the test.
.. $A/ATI STOC/ E0C1ANGE' INC.' $A. VIVIAN 2UC1ENGCO' ADOL"O
$. DUARTE' $2RON C. PAPA' NOR&ERTO C. NAZARENO' GEORGE U2-
TIOCO' ANTONIO A. LOPA' RA$ON &. ARNAIZ' LUIS !.L. VIRATA' and
ANTONIO GARCIA' !R. %s. $IGUEL V. CA$POS' su3stituted 3, !ULIA
ORTIGAS VDA. DE CA$POS'G.R. No. #*44#5' Ap6il #)' .--7.
A cause of action is the act or omission by which a party violates a right of another.A
complaint states a cause of action where it contains three essential elements of a cause of
action, namely: !" the legal right of the plaintiff, #" the correlative obligation of the
defendant, and $" the act or omission of the defendant in violation of said legal right. If
these elements are absent, the complaint becomes vulnerable to dismissal on the ground of
failure to state a cause of action.
%%% %%% %%%
The mere assertion of a right and claim of an obligation in an initiatory pleading,
whether a &omplaint or 'etition, without identifying the basis or source thereof, is merely a
conclusion of fact and law. A pleading should state the ultimate facts essential to the rights
of action or defense asserted, as distinguished from mere conclusions of fact or conclusions
of law.
*. P1ILIPPINE AR$2' (t8 In9ant6, Di%ision' t86oug8 GEN.
ALE0ANDER 2APSING' LT. COL. NICANOR PENULIAR' and LT. COL.
"ERNANDO PASION %s.
SPOUSES $A!OR CONSTANCIO PA$ITTAN :Ret.; and LEONOR
PA$ITTAN' SPOUSES AL&ERTO TALINIO and $ARIA C1ONA P. TALINIO'
SPOUSES T<SGT. $ELC1OR &ACULI and LAARNI &ACULI' SPOUSES
S<SGT. !UAN PALASIGUE and $ARILOU PALASIGUE' SPOUSES GRANT
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
PA!ARILLO and "RANCES PA!ARILLO' SPOUSES $<SGT. EDGAR ANOG
and ZORAIDA ANOG' and SPOUSES .LT. $ELITO PAPA and PIN/2 PAPA'
9o6 T8e=sel%es and 9o6 Ot8e6 Oupants o9 Sitio San Ca6los' Upi' Ga=u'
Isa3ela' 3, >a, o9 Class Suit' G.R. No. #4+*.)'!une #(' .-##.
(enerally, a motion to dismiss based on failure to state a cause of action
hypothetically admits the truth of the allegations in the complaint and in order to sustain a
dismissal based on lack of cause of action, the insufficiency of the cause of action must
appear on the face of the complaint. )owever, this rule is not without e%ception. Thus, a
motion to dismiss *does not admit allegations of which the court will take judicial notice are
not true, nor does the rule apply to legally impossible facts, nor to facts inadmissible in
evidence, nor to facts which appear by record or document included in the pleadings to be
unfounded.*Indeed, in some cases, the court may also consider, in addition to the
complaint, other pleadings submitted by the parties and the anne%es or documents
appended to it.
5. NELSIE &. CA?ETE %s. GENUINO ICE CO$PAN2' INC. G.R. No.
#(5-4-'!anua6, ..' .--4.
&orollarily, the +uestion of whether or not a complaint states a cause of action
against a defendant or the action is premature is one of law. The trial court can consider all
the pleadings filed, including anne%es, motions and the evidence on record. )owever in so
doing, the trial court does not rule on the truth or falsity of such documents. It merely
includes such documents in the hypothetical admission. Any review of a finding of lack of
cause of action based on these documents would not involve a calibration of the probative
value of such pieces of evidence but would only limit itself to the in+uiry of whether the law
was properly applied given the facts and these supporting documents. Therefore, what
would inevitably arise from such a review are pure +uestions of law, and not +uestions of
fact.
PREPARATION OF THE COMPLAINT:
(. GEORGIA T. ESTEL %s.
RECAREDO P. DIEGO' SR. and RECAREDO R. DIEGO' !R.'G.R. No.
#+5-4.' !anua6, #)' .-#..
It is settled that with respect to the contents of the certification against forum
shopping, the rule of substantial compliance may be availed of.

This is because the
re+uirement of strict compliance with the provisions regarding the certification of non,forum
shopping merely underscores its mandatory nature in that the certification cannot be
altogether dispensed with or its re+uirements completely disregarded.

It does not thereby
interdict substantial compliance with its provisions under justifiable circumstances, as the
&ourt finds in the instant case.
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
). $ARCELINO DO$INGO %s. COURT O" APPEALS' AGAPITA DO$INGO'
ANA DO$INGO' 1EIRS O" GAUDENCIO DO$INGO' na=el,@ DOROTEO
DO$INGO' !ULITA DO$INGO' A$ANDO DO$INGO' and ARCEL
DO$INGOA 1EIRS O" !ULIAN DO$INGO' na=el,@ !ULIAN DO$INGO' !R.
and PONCIANO DO$INGOA 1EIRS O" EDIL&ERTA DO$INGO' na=el,@
ANITA DO$INGO and ROSIE DO$INGOA 1EIR O" "ELIPE DO$INGO'
na=el,@ LORNA DO$INGOA and 1EIRS O" GERONI$O DO$INGO'
na=el,@ E$IL2 DO$INGO and ARISTON DO$INGO 6ep6esented 3,
ROLANDO DO$INGO' G.R. No. #)7#..' "e36ua6, .' .-#-.
-e thus take this opportunity to clarify that under .ection !!, /ule !$ of the !001
/ules of &ivil 'rocedure, personal service and filing is the general rule, and resort to other
modes of service and filing, the e%ception. )enceforth, whenever personal service or filing is
practicable, in light of the circumstances of time, place and person, personal service or filing
is mandatory. Only when personal service or filing is not practicable may resort to other
modes be had, which must then be accompanied by a written e%planation as to why
personal service or filing was not practicable to begin with. In adjudging the plausibility of
an e%planation, a court shall likewise consider the importance of the subject matter of the
case or the issues involved therein, and the prima facie merit of the pleading sought to be
e%punged for violation of .ection !!.
+. SPOUSES RA$ON $ENDIOLA and ARACELI N. $ENDIOLA %s. T1E
1ON. COURT O" APPEALS' PILIPINAS S1ELL PETROLEU$
CORPORATION' and TA&ANGAO REALT2' INC.' G.R. No. #(7+5)'!ul, #4'
.-#..
The four tests to determine whether a counterclaim is compulsory or not are the
following, to wit: a" Are the issues of fact or law raised by the claim and the counterclaim
largely the same2 b" -ould res judicata bar a subse+uent suit on defendant3s claims,
absent the compulsory counterclaim rule2 c" -ill substantially the same evidence support
or refute plaintiff3s claim as well as the defendant3s counterclaim2 and d" Is there any
logical relation between the claim and the counterclaim, such that the conduct of separate
trials of the respective claims of the parties would entail a substantial duplication of effort
and time by the parties and the court2 Of the four, the one compelling test of
compulsoriness is the logical relation between the claim alleged in the complaint and that in
the counterclaim.
4. ROGER V. NAVARRO %s. 1ON. !OSE L. ESCO&IDO' P6esiding !udge'
RTC &6an8 *+' Caga,an de O6o Cit,' and /AREN T. GO' doing 3usiness
unde6 t8e na=e /ARGO ENTERPRISES' G.R. No. #(*+44' No%e=3e6 .+'
.--7.
4inally, there is no law authori5ing sole proprietorships like petitioner to bring suit in
court. The law merely recogni5es the e%istence of a sole proprietorship as a form of business
organi5ation conducted for profit by a single individual, and re+uires the proprietor or owner
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
thereof to secure licenses and permits, register the business name, and pay ta%es to the
national government. It does not vest juridical or legal personality upon the sole
proprietorship nor empower it to file or defend an action in court.
JURISDICTION:
7. UNITED CLAI$ANTS ASSOCIATION O" NEA :UNICAN;' 6ep6esented 3,
its 6ep6esentati%e &IENVENIDO R. LEAL' in 8is o99iial apait, as its
P6esident and in 8is oBn indi%idual apait,' EDUARDO R. LACSON'
ORENCIO ". VENIDA' !R.' T1EL$A V. OGENA' &O&&2 $. CARANTO'
$ARILOU &. DE !ESUS' EDNA G. RA?A' and ZENAIDA P. OLICUINO' in
t8ei6 oBn apaities and in 3e8al9 o9 all t8ose si=ila6l, situated o99iials
and e=plo,ees o9 t8e National Elet6i9iation Ad=inist6ation %s.
NATIONAL ELECTRI"ICATION AD$INISTRATION :NEA;' NEA &OARD O"
AD$INISTRATORS :NEA &OARD;' ANGELO T. RE2ES as C8ai6=an o9 t8e
NEA &oa6d o9 Ad=inist6ato6s' EDIT1A S. &UENO' ED-O99iio $e=3e6 and
NEA Ad=inist6ato6' and >IL"RED L. &ILLENA' !OSPEP1 D. /1ONG1UN'
and "R. !OSE VICTOR E. LO&RIGO' $e=3e6s' NEA &oa6d' G.R. No.
#4+#-+'!anua6, *#' .-#..
This &ourt3s original jurisdiction to issue writs of certiorari is not e%clusive. It is
shared by this &ourt with /egional Trial &ourts and with the &ourt of Appeals. This
concurrence of jurisdiction is not, however, to be taken as according to parties seeking any
of the writs an absolute, unrestrained freedom of choice of the court to which application
therefor will be directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and also serves as a general determinant of the
appropriate forum for petitions for the e%traordinary writs. A becoming regard for that
judicial hierarchy most certainly indicates that petitions for the issuance of e%traordinary
writs against first level *inferior*" courts should be filed with the /egional Trial &ourt, and
those against the latter, with the &ourt of Appeals. A direct invocation of the .upreme
&ourt3s original jurisdiction to issue these writs should be allowed only when there are
special and important reasons therefor, clearly and specifically set out in the petition. This
is 6an7 established policy. It is a policy necessary to prevent inordinate demands upon the
&ourt3s time and attention which are better devoted to those matters within its e%clusive
jurisdiction, and to prevent further over,crowding of the &ourt3s docket.
#-. N$ ROT1SC1ILD E SONS :AUSTRALIA; LI$ITED %s. LEPANTO
CONSOLIDATED $INING CO$PAN2' G.R. No. #+(+77 No%e=3e6 .4'
.-##.
Thus, while mindful of our ruling in 8a 9aval and the new .ection #:, /ule #:, this
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
&ourt, in several cases, ruled that seeking affirmative relief in a court is tantamount to
voluntary appearance therein. Thus, in 'hilippine &ommercial International ;ank v. <y
)ong 'i, wherein defendants filed a *=otion for Inhibition without submitting themselves to
the jurisdiction of this )onorable &ourt* subse+uent to their filing of a *=otion to <ismiss
for 8ack of >urisdiction",* we held:
;esides, any lingering doubts on the issue of voluntary appearance dissipate when
the respondents? motion for inhibition is considered. This motion seeks a sole relief:
inhibition of >udge 9apoleon Inoturan from further hearing the case. @vidently, by seeking
affirmative relief other than dismissal of the case, respondents manifested their voluntary
submission to the court?s jurisdiction. It is well,settled that the active participation of a
party in the proceedings is tantamount to an invocation of the court?s jurisdiction and a
willingness to abide by the resolution of the case, and will bar said party from later on
impugning the court?s jurisdiction.
##. &" 1O$ES' INC. and t8e P1ILIPPINE >ATER>OR/S AND
CONSTRUCTION CORP. %s.
$ANILA ELECTRIC CO$PAN2' G.R. No. #+#).5' Dee=3e6 )' .-#-.
Indeed, when a court has no jurisdiction over the subject matter, the only power it
has is to dismiss the action.
#.. $A2 D. A?ONUEVO' ALE0ANDER &LEE DESANTIS and !O1N
DESANTIS NERI %s.
INTESTATE ESTATE O" RODOL"O G. !ALANDONI' 6ep6esented 3,
&ERNARDINO G. !ALANDONI as Speial Ad=inist6ato6'G.R. No. #+4..#'
Dee=3e6 #' .-#-.
&onse+uently, when a court commits a mistake and allows an uninterested person to
intervene in a caseAthe mistake is not simply an error of judgment, but one of jurisdiction.
In such event, the allowance is made in e%cess of the court3s jurisdiction and can only be
the product of an e%ercise of discretion gravely abused. That kind of error may be reviewed
in a special civil action for certiorari.
#*. P1ILIPPINE CO$$ERCIAL INTERNATIONAL &AN/ %s.SPOUSES
>ILSON D2 1ONG PI and LOLITA D2 and SPOUSES PRI$O C1U2ACO'
!R. and LILIA C1U2ACO' G.R. No. #+##*+' !une (' .--7.
'reliminarily, jurisdiction over the defendant in a civil case is ac+uired either by the
coercive power of legal processes e%erted over his person, or his voluntary appearance in
court.As a general proposition, one who seeks an affirmative relief is deemed to have
submitted to the jurisdiction of the court. It is by reason of this rule that we have had
occasion to declare that the filing of motions to admit answer, for additional time to file
answer, for reconsideration of a default judgment, and to lift order of default with motion for
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
reconsideration, is considered voluntary submission to the court3s jurisdiction.This,
however, is tempered by the concept of conditional appearance, such that a party who
makes a special appearance to challenge, among others, the court3s jurisdiction over his
person cannot be considered to have submitted to its authority.
#5. LOURDES L. ERISTINGCOL %s. COURT O" APPEALS and RANDOLP1
C. LI$!OCO' G.R. No. #)++-.' $a68 .-' .--7.
The landmark case of Tijam is, in fact, only an e%ception to the general rule that an
objection to the court3s jurisdiction over a case may be raised at any stage of the
proceedings, as the lack of jurisdiction affects the very authority of the court to take
cogni5ance of a case.In that case, the .urety filed a =otion to <ismiss before the &A, raising
the +uestion of lack of jurisdiction for the first timeAfifteen years after the action was
commenced in the &ourt of 4irst Instance &4I" of &ebu. Indeed, in several stages of the
proceedings in the &4I, as well as in the &A, the .urety invoked the jurisdiction of said
courts to obtain affirmative relief, and even submitted its case for a final adjudication on the
merits. &onse+uently, it was barred by laches from invoking the &4I3s lack of jurisdiction.
#(. RU&2 S1ELTER &UILDERS AND REALT2 DEVELOP$ENT
CORPORATION %s. 1ON. PA&LO C. "OR$ARAN III' P6esiding !udge o9
Regional T6ial Cou6t &6an8 .#' Naga Cit,' as Pai6ing !udge 9o6 Regional
T6ial Cou6t &6an8 ..' "o6=e6l, P6esided &, 1ON. NOVELITA VILLEGAS-
LLAGUNO :Reti6ed -# $a, .--);' RO$EO 2. TAN' RO&ERTO L. O&IEDO
and ATT2. TO$AS A. RE2ES' G.R. No. #+(7#5'"e36ua6, #-' .--7.
-hile it is true that petitioner does not directly seek the recovery of title or possession
of the property in +uestion, his action for annulment of sale and his claim for damages are
closely intertwined with the issue of ownership of the building which, under the law, is
considered immovable property, the recovery of which is petitioner?s primary objective. The
prevalent doctrine is that an action for the annulment or rescission of a sale of real property
does not operate to efface the fundamental and prime objective and nature of the case,
which is to recover said real property. It is a real action.
%%% %%% %%%
It is also important to note that, with the amendments introduced by A.=. 9o. :B,#,
:B,.&, which became effective on !C August #::B, the paragraph in .ection 1, /ule !B! of
the /ules of &ourt, pertaining specifically to the basis for computation of docket fees for real
actions was deleted. Instead, .ection 1!" of /ule !B!, as amended, provides that *in cases
involving real property, the 4AI/ =A/D@T value of the /@A8 property in litigation .TAT@<
I9 T)@ &E//@9T TAF <@&8A/ATIO9 O/ &E//@9T GO9A8 HA8EATIO9 O4 T)@ ;E/@AE
O4 I9T@/9A8 /@H@9E@, -)I&) I. )I()@/, O/ I4 T)@/@ I. 9O9@, T)@ .TAT@<
HA8E@ O4 T)@ '/O'@/TI I9 8ITI(ATIO9 % % %* shall be the basis for the computation of
the docket fees. -ould such an amendment have an impact on (ochan, .iapno, and
.errano2 The &ourt rules in the negative.
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
#). RO$ULO ". PECSON %s. CO$$ISSION ON ELECTIONS'
DEPART$ENT O" INTERIOR AND LOCAL GOVERN$ENT and L2NDON A.
CUNANAN' G.R. No. #4.4)(Dee=3e6 .5' .--4.
Another legal reality is that the &O=@8@& is wrong in its ruling that the /T& could
no longer actually issue the writ on =arch !!, #::J because it no longer had jurisdiction to
do so after the appeal period lapsed and after the records were transmitted to the @&A<,
&O=@8@&. That the /T& is still in possession of the records and that the period to appeal
of both contending parties" must have not lapsed are important for jurisdictional purposes
if the issue is the authority of the /T& to grant a .pecial Order allowing e%ecution pending
appealK they are re+uisite elements for the e%ercise by the /T& of its residual jurisdiction to
validly order an e%ecution pending appeal, not for the issuance of the writ itself. This is
clearly evident from the cited provision of the /ules which does not re+uire the issuance of
the implementing writ within the above limited jurisdictional period. The /T& cannot legally
issue the implementing writ within this limited period for two reasons: !" the cited twenty,
day waiting period under .ection !!b"K and #" the mandatory immediate transmittal of the
records to the ECAD of the COMELEC under Section 10 of the Rules.
DOCKET FEES:
#+. /OREA TEC1NOLOGIES CO.' LTD. %s.
1ON. AL&ERTO A. LER$A' in 8is apait, as P6esiding !udge o9 &6an8
.() o9 Regional T6ial Cou6t o9 $untinlupa Cit,' and PACI"IC GENERAL
STEEL $ANU"ACTURING CORPORATION' G.R. No. #5*(4#' !anua6, +'
.--4.
On >uly !1, !00J, at the time '(.=& filed its Answer incorporating its counterclaims
against DO(I@., it was not liable to pay filing fees for said counterclaims being compulsory
in nature. -e stress, however, that e99eti%e August #)' .--5 unde6 Se. +' Rule #5#' as
a=ended 3, A.$. No. -5-.--5-SC' doFet 9ees a6e noB 6eGui6ed to 3e paid in
o=pulso6, ounte6lai= o6 6oss-lai=s.
.@@ LEONIDES $ERCADO' 6ep6esented 3, 8is 8ei6s@ RaGuel
D. $e6ado' !i==, D. $e6ado' 1en6, D. $e6ado' Lou6ia6 D.
$e6ado and Vi6gilio D. $e6ado %s.
COURT O" APPEALS and SAN $IGUEL CORPORATION'G.R. No.
#)7(+)' Oto3e6 #+' .--4.,A counterclaim or a claim which a
defending party may have against any party" may be compulsory or
permissive. A counterclaim that !" arises out of or is necessarily
connected with" the transaction or occurrence that is the subject matter
of the opposing party3s claimK #" falls within the jurisdiction of the court
and $" does not re+uire for its adjudication the presence of third parties
over whom the court cannot ac+uire jurisdiction, is compulsory.
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
Otherwise, a counterclaim is merely permissive.
-hen =ercado sought to annul the continuing hold,out agreement
and deed of assignment which he e%ecuted as security for his credit
purchases", he in effect sought to be freed from them. -hile he admitted
having outstanding obligations, he nevertheless asserted that those were
not covered by the assailed accessory contracts. 4or its part, aside from
invoking the validity of the said agreements, .=& therefore sought to
collect the payment for the value of goods =ercado purchased on credit.
Thus, =ercado3s complaint and .=&3s counterclaim both touched the
issues of whether the continuing hold,out agreement and deed of
assignment were valid and whether =ercado had outstanding liabilities
to .=&. The same evidence would essentially support or refute =ercado3s
claim and .=&3s counterclaim.
;ased on the foregoing, had these issues been tried separately, the
efforts of the /T& and the parties would have had to be duplicated.
&learly, .=&3s counterclaim, being logically related to =ercado3s claim,
was compulsory in nature. &onse+uently, the payment of docket fees was
not necessary for the /T& to ac+uire jurisdiction over the subject matter.
.@@ A8.O G.R. Nos. #(55+--+#'Septe=3e6 .5' .-#.'&AN/ O"
CO$$ERCE %s.
PLANTERS DEVELOP$ENT &AN/ and &ANG/O SENTRAL NG
PILIPINAS and G.R. Nos. #(5(47-7-'&ANG/O SENTRAL NG
PILIPINAS %s. PLANTERS DEVELOP$ENT &AN/- :"N No. #5); -"#en
$%C filed its Ans&er &it# Co'pulsor( Counterclai') t#e effecti*e rule t#en &as A.+.
,o. ---2--.-/C 0+arc# .) 2---1) &#ic# does not re2uire pa('ent of doc3et fees for
co'pulsor( counterclai's. 4ffecti*e August .6) 2--4) #o&e*er) under /ection ) 5ule
.4.) as a'ended 6( A.+. ,o. -4-2--4-/C) doc3et fees are no& re2uired to 6e paid e*en
in co'pulsor( counterclai' or cross-clai's. /ee 7orea Tec#nologies Co.) Ltd. *. Ler'a)
G.5. ,o. .435!.) Januar( ) 2--!) 542 /C5A .) .6-. ,
SUMMONS:
#4. PLANTERS DEVELOP$ENT &AN/ %s. !ULIE C1ANDU$AL' G.R. No.
#7()#7' Septe=3e6 (' .-#..
.ubstituted service of summon made was invalidated due to the sheriff3s failure to
specify in the return the necessary details of the failed attempts to effect personal service
which would justify resort to substituted service of summons.
#7. CONSTANTINO A. PASCUAL' su3stituted 3, 8is 8ei6s' 6ep6esented
3, Zenaida Pasual %s. LOURDES S. PASCUAL' G.R. No. #+#7#)'
Dee=3e6 5' .--7.
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
Applying the above dis+uisitions, the jurisdiction over the person of the respondent
was never vested with the /T&, because the manner of substituted service by the process
server was apparently invalid and ineffective. As such, there was a violation of due process.
>urisdiction over the defendant is ac+uired either upon a valid service of summons or the
defendant3s voluntary appearance in court. -hen the defendant does not voluntarily submit
to the court3s jurisdiction or when there is no valid service of summons, *any judgment of
the court which has no jurisdiction over the person of the defendant is null and void.*
.-. ARNEL SAGANA %s. RIC1ARD A. "RANCISCO' G.R. No.#)#7(.'
Oto3e6 .' .--7.
>urisprudence has long established that for substituted service of summons to be
valid, the following must be demonstrated: a" that personal service of summons within a
reasonable time was impossibleK b" that efforts were e%erted to locate the partyK and c" that
the summons was served upon a person of sufficient age and discretion residing at the
party?s residence or upon a competent person in charge of the party?s office or regular place
of business.It is likewise re+uired that the pertinent facts proving these circumstances be
stated in the proof of service or in the officer?s return.
.#. DATU PA0 PA/UNG S. $ANGUDADATU %s. T1E 1OUSE O"
REPRESENTATIVES ELECTORAL TRI&UNAL and ANGELO O. $ONTILLA'
G.R. No. #+74#*' Dee=3e6 #4' .--4.
Indeed, if in ordinary civil cases which involve only private and proprietary interests"
personal service of summons is preferred and service by registered mail is not allowed on
jurisdictional and due process grounds, with more reason should election cases which
involve public interest and the will of the electorate" strictly follow the hierarchy of modes of
service of summons under the /ules of &ourt.
... SPOUSES !ULIAN SANTIAGO' SR. and LEONILA SANTIAGO and
SPOUSES LI$ !OSE ONG and $I$I ONG LI$ %s. &AN/ O" T1E
P1ILIPPINE ISLANDS as suesso6 in inte6est o9 "a6 East &anF E T6ust
Co.' su3stituted 3, In%est=ents ..*5 P8ilippines "und I :SPV-A$C;'
In.'G.R. No. #)*+57' Septe=3e6 .)' .--4.
In =illenium Industrial &ommercial &orporation v. Tan, it was held that service of
summons upon a defendant corporation must be made on a representative so integrated
with the corporation sued as to make it a priori presumable that he would reali5e his
responsibilities and know what he should do with any legal papers received by himK that
clearly then, there is in this case substantial compliance with the rule on service of
summonsK and that the need for speedy justice must prevail over technicality.
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
.*. DOLE P1ILIPPINES' INC. :TROPI"RES1 DIVISION; %s. 1ON.
REINATO G. CUILALA in 8is apait, as pai6ing Hudge o9 &6an8 #(-'
RTC-$aFati Cit,' and ALL SEASON "AR$' CORP.'G.R. No. #)4+.*' !ul,
7' .--4.
-ell,settled is the rule that service of summons on a domestic corporation is
restricted, limited and e%clusive to the persons enumerated in .ection !!, /ule !B of the
!001 /ules of &ivil 'rocedure, following the rule in statutory construction that e%pressio
unios est e%clusio alterius..ervice must therefore be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in,house counsel.
.5. DOLORES $ONTE"ALCON E LAURENCE $ONTE"ALCON %s.
RONNIE S. VASCUEZ' G.R. No. #)(-#)' !une #+' .--4.
To ac+uire jurisdiction over the person of a defendant, service of summons must be
personal, or if this is not feasible within a reasonable time, then by substituted service. It is
of judicial notice that overseas 4ilipino seafarers are contractual employees. They go back to
the country once their contracts e%pire, and wait for the signing of another contract with the
same or new manning agency and principal if they wish. It is therefore common knowledge
that a 4ilipino seaman often has a temporary residence in the urban areas like =etro
=anila, where majority of the manning agencies hold offices, aside from his home address in
the province where he originates. In this case, respondent Has+ue5 hails from &amarines
.ur but he has lived in Taguig &ity when the complaint was filed. 9otice may then be taken
that he has established a residence in either place. /esidence is a place where the person
named in the summons is living at the time when the service was made, even though he was
temporarily abroad at the time.
%%% %%% %%%
In this case, we agree that the substituted service in Taguig was valid and justified
because previous attempts were made by the sheriffs to serve the summons, but to no avail.
<iligent efforts were evidently e%erted in the conduct of the concerned sheriffs in the
performance of their official duty. Also, the person who received the alias summons was of
suitable age and discretion, then residing at Has+ue5?s dwelling. There is no +uarrel that it
was really Has+ue5?s residence, as evidenced by his employment contract, e%ecuted under
the supervision and authority of the 'hilippine Overseas @mployment Administration
'O@A". Has+ue5 cannot deny that in his contract of employment and seafarer?s information
sheet, both bearing 'O@A?s letterhead, his address in =etro =anila was what was correctly
mentioned in the alias summons that ;ejer received. .he must have informed Has+ue5 one
way or another of the suit upon his return in October #::: after finishing his nine,month
contract with 4athom .hip =anagement.
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
MODES OF DISCOVERY:
.(. SOCORRO LI$OS' ROSA DELOS RE2ES and SPOUSES ROLANDO
DELOS RE2ES and EUGENE DELOS RE2ES %s. SPOUSES "RANCISCO P.
ODONES and AR>ENIA R. ODONES' G.R. No. #4)7+7' August ##' .-#-
As such, it is the duty of the courts to e%amine thoroughly the circumstances of each
case and to determine the applicability of the modes of discovery, bearing always in mind
the aim to attain an e%peditious administration of justice.
The determination of the sanction to be imposed upon a party who fails to comply
with the modes of discovery also rests on sound judicial discretion.
TRIAL:
.). DOUGLAS ". ANA$A %s.
P1ILIPPINE SAVINGS &AN/' SPOUSES SATURNINA &ARIA ETO$AS CO
and T1E REGISTER O" DEEDS' $ETRO $ANILA' DISTRICT II'G.R. No.
#4+-.#' !anua6, .(' .-#..
@lementary is the rule that every motion must contain the mandatory re+uirements
of notice and hearing and that there must be proof of service thereof. The &ourt has
consistently held that a motion that fails to comply with the above re+uirements is
considered a worthless piece of paper which should not be acted upon. The rule, however, is
not absolute. There are motions that can be acted upon by the court e% parte if these would
not cause prejudice to the other party. They are not strictly covered by the rigid re+uirement
of the rules on notice and hearing of motions.
.+. UNITED PULP AND PAPER CO.' INC. %s. ACROPOLIS CENTRAL
GUARANT2 CORPORATION' G.R. No. #+#+(- ' !anua6, .(' .-#..
As an integral component of procedural due process, the three,day notice re+uired by
the /ules is not intended for the benefit of the movant. /ather, the re+uirement is for the
purpose of avoiding surprises that may be sprung upon the adverse party, who must be
given time to study and meet the arguments in the motion before a resolution by the court.
'rinciples of natural justice demand that the right of a party should not be affected without
giving it an opportunity to be heard.
.4. PRISCILLA AL$A !OSE %s.
RA$ON C. !AVELLANA' ET AL.'G.R. No. #(4.*7' !anua6, .(' .-#..
The denial of a motion for reconsideration of an order granting the defending party3s
motion to dismiss is not an interlocutory but a final order because it puts an end to the
particular matter involved, or settles definitely the matter therein disposed of, as to leave
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
nothing for the trial court to do other than to e%ecute the order. Accordingly, the claiming
party has a fresh period of !L days from notice of the denial within which to appeal the
denial.
.7. &ANCO DE ORO-EPCI' INC. :9o6=e6l, EGuita3le PCI &anF; %s.
!O1N TANSIPE/' G.R. No. #4#.*(' !ul, ..' .--7.
It is important to note that a party declared in default M respondent Tansipek in this
case M is not barred from appealing from the judgment on the main case, whether or not he
had previously filed a =otion to .et Aside Order of <efault, and regardless of the result of
the latter and the appeals therefrom. )owever, the appeal should be based on the <ecision3s
being contrary to law or the evidence already presented, and not on the alleged invalidity of
the default order.
*-. !OSEP1INE $AR$O' NESTOR ESGUERRA' DANILO DEL PILAR and
$ARISA DEL PILAR %s. $OISES O. ANACA2' G.R. No. #4.(4(' No%e=3e6
.+' .--7.
An Order denying a =otion to <ismiss is interlocutory because it does not finally
dispose of the case, and, in effect, directs the case to proceed until final adjudication by the
court. Only when the court issues an order outside or in e%cess of jurisdiction or with grave
abuse of discretion, and the remedy of appeal would not afford ade+uate and e%peditious
relief, will certiorari be considered an appropriate remedy to assail an interlocutory order.
*#. !OSEP1INE $AR$O' NESTOR ESGUERRA' DANILO DEL PILAR and
$ARISA DEL PILAR %s. $OISES O. ANACA2' G.R. No. #4.(4(' No%e=3e6
.+' .--7.
An Order denying a =otion to <ismiss is interlocutory because it does not finally
dispose of the case, and, in effect, directs the case to proceed until final adjudication by the
court. Only when the court issues an order outside or in e%cess of jurisdiction or with grave
abuse of discretion, and the remedy of appeal would not afford ade+uate and e%peditious
relief, will certiorari be considered an appropriate remedy to assail an interlocutory order.
*.. PEDRO T. SANTOS' !R. %s. CORONA' G.R. No. #+-75*' Septe=3e6
.*' .--4.
To pursue the matter to its logical conclusion, if a party declared in default is entitled
to notice of subse+uent proceedings, all the more should a party who has not been declared
in default be entitled to such notice. ;ut what happens if the residence or whereabouts of
the defending party is not known or he cannot be located2 In such a case, there is obviously
no way notice can be sent to him and the notice re+uirement cannot apply to him. The law
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Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
does not re+uire that the impossible be done. 9emo tenetur ad impossibile. The law obliges
no one to perform an impossibility.8aws and rules must be interpreted in a way that they
are in accordance with logic, common sense, reason and practicality.
JUDGMENT:
**. GOVERN$ENT SERVICE INSURANCE S2STE$ :GSIS; %s. 1EIRS O"
"ERNANDO ". CA&ALLERO' 6ep6esented 3, 8is daug8te6' !OCEL2N G.
CA&ALLERO'G.R. Nos. #(4-7-' Oto3e6 5' .-#-.
In Ayala &orporation v. =adayag, the &ourt, in interpreting the third rule laid down
in .un Insurance Office, 8td. v. >udge Asuncion regarding awards of claims not specified in
the pleading, held that the same refers only to damages arising after the filing of the
complaint or similar pleading as to which the additional filing fee therefor shall constitute a
lien on the judgment.
*5. $ETROPOLITAN &AN/ AND TRUST CO. and SOLID&AN/
CORPORATION %s. &ERNARDITA 1. PEREZ' 6ep6esented 3, 8e6 Atto6ne,-
in-"at PATRIA 1. PEREZ'G.R. No. #4#45.' "e36ua6, (' .-#-.
The e%ception contemplated as to claims not specified or to claims although specified
are left for determination of the court is limited only to any damages that may arise after the
filing of the complaint or similar pleading for then it will not be possible for the claimant to
specify nor speculate as to the amount thereof.
*(. SI$EON CA&ANG' VIRGINIA CA&ANG and VENANCIO CA&ANG
ALIAS IDONDONI %s. $R. E $RS. GUILLER$O &ASA2' G.R. No. #4-(4+'
$a68 .-' .--7.
A final and e%ecutory judgment may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact or law and whether it will be
made by the court that rendered it or by the highest court in the land.The only e%ceptions to
this rule are the correction of !" clerical errorsK #" the so,called nunc pro tunc entries
which cause no prejudice to any party, and $" void judgments.
%%% %%% %%%
4urthermore, as a matter of settled legal principle, a writ of e%ecution must adhere to
every essential particulars of the judgment sought to be e%ecuted.An order of e%ecution may
not vary or go beyond the terns of the judgment it seeks to enforce. A writ of e%ecution must
conform to the judgment and if it is different from, goes beyond or varies the tenor of the
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
judgment which gives it life, it is a nullity. Otherwise stated, when the order of e%ecution
and the corresponding writ issued pursuant thereto is not in harmony with and e%ceeds the
judgment which gives it life, they have pro tanto no validityM to maintain otherwise would be
to ignore the constitutional provision against depriving a person of his property without due
process of law.
REMEDIES AGAINST JUDGMENT:
*). RO>ENA PADILLA-RU$&AUA ED>ARD RU$&AUA' G.R. No.
#))+*4' August #5' .--7.
A remand of the case to the /T& for further proceedings amounts to the grant of a
new trial that is not procedurally proper at this stage. .ection ! of /ule $1 provides that an
aggrieved party may move the trial court to set aside a judgment or final order already
rendered and to grant a new trial within the period for taking an appeal.
*+. !ULIO &. PURCON' !R.' %s.
$R$ P1ILIPPINES' INC. and $IGUEL L. RIVERA<$ARITI$E
RESOURCES $ANAGE$ENT' G.R. No. #4.+#4' Septe=3e6 .)' .--4.
-hile /ule $J uses the phrase *any court,* it refers only to =unicipalN=etropolitan
and /egional Trial &ourts.
EXECUTION:
*4. VAS1DEO GAGOO$AL %s. SPOUSES RA$ON AND NATIVIDAD
VILLACORTA' G.R. No. #7.4#*' !anua6, #4' .-#..
It is a basic principle of law that money judgments are enforceable only against
property incontrovertibly belonging to the judgment debtor, and if property belonging to any
third person is mistakenly levied upon to answer for another man3s indebtedness, such
person has all the right to challenge the levy through any of the remedies provided for under
the /ules of &ourt.
*7. CESAR V. $ADRIAGA' !R. %s. C1INA &AN/ING CORPORATION, G.R.
No. #7.*++' !ul, .(' .-#..
The issuance by the /T& of a writ of possession in favor of the purchaser of the said
real property ceases to be ministerial and may no longer be done e% parte. 4or the e%ception
to apply, however, the property need not only be possessed by a third,party, but also held
by the third,party adversely to the debtorNmortgagor.
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
5-. ALPA-PC$' INC. VINCENT &ULASAO' !ULIET &ULASAO and SUSANA
&ULASAO' 1ONORA&LE !UDGE DANILO ". CA$AC1O' and T1E DEPUT2
S1ERI"" O" T1E REGIONAL TRIAL COURT' LA TRINIDAD' &ENGUET'
G.R. No. #7+#.5' $a68 #7' .-#..
/ule B# of the /ules of &ourt governs the appeal of a decision of the /T& rendered in
the e%ercise of its appellate jurisdictionK the appeal is made by filing a petition for review
with the &A. <espite the filing of a petition with the &A, however, /ule B# grants the /T&
residual jurisdiction to order e%ecution pending appeal, so long as !" the &A has not yet
given due course to the petition, and #" the re+uirements of .ection #, /ule $0 are
observed.
5#. G.R. No. #)*.4)' August ..' .-#.
$INDANAO TER$INAL AND &RO/ERAGE SERVICE' INC.' %s.
COURT O" APPEALS AND P1ILIPPINE PORTS AUT1ORIT2
D - - - - - - - - - - - - - - - - - - - - - - - D
G.R. No. #))-.(
P1ILIPPINE PORTS AUT1ORIT2 %s.
1ON. CESAR $. SOLIS' PRESIDING !UDGE' REGIONAL TRIAL COURT'
&RANC1 #5' $ANILA AND $INDANAO TER$INAL AND &RO/ERAGE
SERVICE' INC.
D - - - - - - - - - - - - - - - - - - - - - - - D
G.R. No. #+-.)7
P1ILIPPINE PORTS AUT1ORIT2 %s.
1ON. CESAR $. SOLIS' PRESIDING !UDGE' REGIONAL TRIAL COURT'
&RANC1 #5' $ANILA AND $INDANAO TER$INAL AND &RO/ERAGE
SERVICE' INC.
The rule is clear that it becomes mandatory or ministerial duty of the court to issue a
writ of e%ecution to enforce the judgment which has become e%ecutory.
5.. CRISANTA ALCARAZ $IGUEL %s. !ERR2 D. $ONTANEZ'G.R. No.
#7#**)' !anua6, .(' .-#..
In the case at bar, the /evised Datarungang 'ambarangay 8aw provides for a two,
tiered mode of enforcement of an amicable settlement, to wit: a" by e%ecution by the 'unong
;arangay which is +uasi,judicial and summary in nature on mere motion of the party
entitled theretoK and b" an action in regular form, which remedy is judicial. )owever, the
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
mode of enforcement does not rule out the right of rescission under Art. #:B! of the &ivil
&ode. The availability of the right of rescission is apparent from the wording of .ec. B!1
itself which provides that the amicable settlement *may* be enforced by e%ecution by the
lupon within si% C" months from its date or by action in the appropriate city or municipal
court, if beyond that period. The use of the word *may* clearly makes the procedure
provided in the /evised Datarungang 'ambarangay 8aw directory or merely optional in
nature.
5*. &PI "A$IL2 SAVINGS &AN/' INC. %s. GOLDEN PO>ER DIESEL
SALES CENTER' INC. and RENATO C. TAN' G.R. No. #+)-#7' !anua6, #.'
.-##.
Therefore, in an e%trajudicial foreclosure of real property, when the foreclosed
property is in the possession of a third party holding the same adversely to the judgment
obligor, the issuance by the trial court of a writ of possession in favor of the purchaser of
said real property ceases to be ministerial and may no longer be done e% parte.

The
procedure is for the trial court to order a hearing to determine the nature of the adverse
possession.

4or the e%ception to apply, however, the property need not only be possessed by
a third party, but also held by the third party adversely to the judgment obligor.
55. LA CA$PANA DEVELOP$ENT CORPORATION %s. ARTURO
LEDES$A' 1ON. !UDGE ESTRELLA T. ESTRADA' in 8e6 apait, as
PRESIDING !UDGE' Regional T6ial Cou6t' &6an8 4*' CueJon Cit,' and
t8e 1ON. COURT O" APPEALS'G.R. No. #(5#(.' August .(' .-#-.
It is true that .ection #!, /ule 1: of the /ules of &ourt provides that *6t7he judgment
of the /egional Trial &ourt against the defendant shall be immediately e%ecutory, without
prejudice to a further appeal that may be taken therefrom.* )owever, the &ourt ruled in
;enedicto v. &ourt of Appeals that *on appeal the appellate court may stay the said writ
should circumstances so re+uire. % % % even if /T& judgments in unlawful detainer cases
are immediately e%ecutory, preliminary injunction may still be granted.* &iting Amagan v.
=arayag and Hda. de 8egaspi v. AvendaOo, the &ourt e%plained in ;enedicto that:
-here the action, therefore, is one of illegal detainer, as distinguished from one of
forcible entry, and the right of the plaintiff to recover the premises is seriously placed in
issue in a proper judicial proceeding, it is more e+uitable and just and less productive of
confusion and disturbance of physical possession, with all its concomitant inconvenience
and e%penses. 4or the &ourt in which the issue of legal possession, whether involving
ownership or not, is brought to restrain, should a petition for preliminary injunction be filed
with it, the effects of any order or decision in the unlawful detainer case in order to await
the final judgment in the more substantive case involving legal possession or ownership. % %
%
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
5(. T1E PARENTS-TEAC1ERS ASSOCIATION :PTA; O" ST. $AT1E>
C1RISTIAN ACADE$2 ET. AL. %s.
T1E $ETROPOLITAN &AN/ and TRUST CO.'G.R. No. #+)(#4' $a68 .'
.-#-.
As a general rule, the issuance of a writ of possession after the foreclosure sale and
during the period of redemption is ministerial. As an e%ception, it ceases to be ministerial if
there is a third party holding the property adversely to the judgment debtor.
Ordinarily, a purchaser of property in an e%trajudicial foreclosure sale is entitled to
possession of the property. Thus, whenever the purchaser prays for a writ of possession, the
trial court has to issue it as a matter of course. )owever, the obligation of the trial court to
issue a writ of possession ceases to be ministerial once it appears that there is a third party
in possession of the property claiming a right adverse to that of the debtorNmortgagor.
-here such third party e%ists, the trial court should conduct a hearing to determine the
nature of his adverse possession.
5). E$$ANUEL C. VILLANUEVA %s. C1ERDAN LENDING
INVESTORS CORPORATION' G.R. No. #++44#' Oto3e6 #*' .-#-.
-e uniformly held that the obligation of the court to issue an e% parte writ of
possession in favor of the purchaser in an e%trajudicial foreclosure sale ceases to be
ministerial once it appears that there is a third party in possession of the property who is
claiming a right adverse to that of the debtorNmortgagor.
5+. ELIGIO P. $ALLARI %s.
GOVERN$ENT SERVICE INSURANCE S2STE$ and T1E PROVINCIAL
S1ERI"" O" PA$PANGA' G.R. No. #(+)(7' !anua6, .(' .-#-.
A writ of possession, which commands the sheriff to place a person in possession of
real property, may be issued in: !" land registration proceedings under .ection !1 of Act
9o. B0CK #" judicial foreclosure, provided the debtor is in possession of the mortgaged
property, and no third person, not a party to the foreclosure suit, had intervenedK $"
e%trajudicial foreclosure of a real estate mortgage, pending redemption under .ection 1 of
Act 9o. $!$L, as amended by Act 9o. B!!JK and B" e%ecution sales, pursuant to the last
paragraph of .ection $$, /ule $0 of the /ules of &ourt.
54. LAND &AN/ O" T1E P1ILIPPINES %s' $ANUEL O. GALLEGO' !R.'
VELASCO' !R.' and !OSEP1 L. GALLEGO and C1RISTOP1ER GALLEGO'
G.R. No. #+*..)' !anua6, .-' .--7.
The e%ecution of a judgment before becoming final by reason of appeal is recogni5ed.
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Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
)owever, this highly e%ceptional case must find itself firmly founded upon good reasons
warranting immediate e%ecution. 4or instance, e%ecution pending appeal was granted by
this &ourt where the prevailing party is of advanced age and in a precarious state of health
and the obligation in the judgment is non,transmissible, being for support, or where the
judgment debtor is insolvent. @%ecution pending appeal was also allowed by this &ourt
where defendants were e%hausting their income and have no other property aside from the
proceeds of the subdivision lots subject of the action.
57. ALLIED &AN/ING CORPORATION %s.
RUPERTO !OSE 1. $ATEO' 6ep6esented 3, >ARLITA $ATEO' as
Atto6ne,-in-"at' G.R. No. #)+5.-' !une (' .--7.
The general rule in redemption is that it is not sufficient that a person offering to
redeem manifests his desire to do so. The statement of intention must be accompanied by
an actual and simultaneous tender of payment. This constitutes the e%ercise of the right to
repurchase.
PROVISIONAL REMEDIES:
(-. !OSEP1 &ERNARDEZ %s. CO$$ISSION ON ELECTIONS and
AVELINO TOLEAN'G.R. No. #7-*4.' $a68 7' .-#-.
In &aneland .ugar &orporation v. Alon, it was settled that injunctive reliefs are
preservative remedies for the protection of substantive rights and interests. Injunction is not
a cause of action in itself, but merely a provisional remedy, an adjunct to a main suit. -hen
the act sought to be enjoined has become fait accompli, the prayer for provisional remedy
should be denied.
(#. NELSON !ENOSA and 8is son NI?O CARLO !ENOSA' SOCORRO
CANTO and 8e6 son PATRIC/ CANTO' C2NT1IA APALISO/ and 8e6
daug8te6 C2ND2 APALISO/' EDUARDO VARGAS and 8is son CLINT
EDUARD VARGAS' and NELIA DURO and 8e6 son NONELL GREGOR2
DURO %s. REV. "R. !OSE RENE C. DELARIARTE' O.S.A.' in 8is apait,
as t8e inu=3ent P6inipal o9 t8e 1ig8 S8ool Depa6t=ent o9 t8e
Uni%e6sit, o9 San Agustin' and t8e UNIVERSIT2 O" SAN AGUSTIN' 8e6ein
6ep6esented 3, its inu=3ent P6esident REV. "R. $ANUEL G. VERGARA'
O.S.A.'G.R. No. #+.#*4' Septe=3e6 4' .-#-.
.ince injunction is the strong arm of e+uity, he who must apply for it must come with
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Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
e+uity or with clean hands. This is so because among the ma%ims of e+uity are !" he who
seeks e+uity must do e+uity, and #" he who comes into e+uity must come with clean hands.
The latter is a fre+uently stated ma%im which is also e%pressed in the principle that he who
has done ine+uity shall not have e+uity. It signifies that a litigant may be denied relief by a
court of e+uity on the ground that his conduct has been ine+uitable, unfair and dishonest,
or fraudulent, or deceitful as to the controversy in issue.
(.. ROGER V. NAVARRO %s. 1ON. !OSE L. ESCO&IDO' P6esiding !udge'
RTC &6an8 *+' Caga,an de O6o Cit,' and /AREN T. GO' doing 3usiness
unde6 t8e na=e /ARGO ENTERPRISES' G.R. No. #(*+44'No%e=3e6 .+'
.--7.
-e see nothing in these provisions which re+uires the applicant to make a prior
demand on the possessor of the property before he can file an action for a writ of replevin.
Thus, prior demand is not a condition precedent to an action for a writ of replevin.
(*. $ETRO' INC. and SPOUSES "REDERIC/ !UAN and LIZA !UAN %s.
LARAKS GI"TS AND DECORS' INC.' LUIS VILLA"UERTE' !R. and LARA
$ARIA R. VILLA"UERTE' G.R. No. #+#+5#'No%e=3e6 .+' .--7.

The rule that *when the writ of attachment is issued upon a ground which is at the
same time the applicant3s cause of action, the only other way the writ can be lifted or
dissolved is by a counter,bond* is applicable in this case. It is clear that in respondents3
amended complaint of fraud is not only alleged as a ground for the issuance of the writ of
preliminary attachment, but it is also the core of respondents3 complaint. The fear of the
&ourt of Appeals that petitioners could force a trial on the merits of the case on the strength
of a mere motion to dissolve the attachment has a basis.
(5. SO"IA TORRES' "RUCTOSA TORRES' 1EIRS O" $ARIO TORRES
and SOLAR RESOURCES' INC. %s. NICANOR SATSATIN' E$ILINDA
AUSTRIA SATSATIN' NI//I NOR$EL SATSATIN and NI//I NORLIN
SATSATIN' G.R. No. #))+(7' No%e=3e6 .(' .--7.
There are two ways of discharging the attachment. 4irst, to file a counter,bond in
accordance with .ection !# of /ule L1. .econd6,7 6t7o +uash the attachment on the ground
that it was irregularly or improvidently issued, as provided for in .ection !$ of the same
rule. -hether the attachment was discharged by either of the two ways indicated in the law,
the attachment debtor cannot be deemed to have waived any defect in the issuance of the
attachment writ by simply availing himself of one way of discharging the attachment writ,
instead of the other. The filing of a counter,bond is merely a speedier way of discharging the
attachment writ instead of the other way.
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Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
((. $ETRO' INC. and SPOUSES "REDERIC/ !UAN and LIZA !UAN %s.
LARAKS GI"TS AND DECORS' INC.' LUIS VILLA"UERTE' !R. and LARA
$ARIA R. VILLA"UERTE'G.R. No. #+#+5#' No%e=3e6 .+' .--7.
In 8iberty Insurance &orporation v. &ourt of Appeals, we e%plained:
To sustain an attachment on this ground, it must be shown that the debtor in
contracting the debt or incurring the obligation intended to defraud the creditor. The fraud
must relate to the e%ecution of the agreement and must have been the reason which
induced the other party into giving consent which he would not have otherwise given. To
constitute a ground for attachment in .ection !d", /ule L1 of the /ules of &ourt, fraud
should be committed upon contracting the obligation sued upon. A debt is fraudulently
contracted if at the time of contracting it the debtor has a preconceived plan or intention not
to pay, as it is in this case.
The applicant for a writ of preliminary attachment must sufficiently show the factual
circumstances of the alleged fraud because fraudulent intent cannot be inferred from the
debtor3s mere non,payment of the debt or failure to comply with his obligation.
%%% %%% %%%
=oreover, the reliance of the &ourt of Appeals in the cases of &huidian v.
.andiganbayan, 4&I &onstruction (roup, Inc. v. &ourt of Appeals, and 8iberty Insurance
&orporation v. &ourt of Appeals is proper. The rule that *when the writ of attachment is
issued upon a ground which is at the same time the applicant3s cause of action, the only
other way the writ can be lifted or dissolved is by a counter,bond* is applicable in this case.
It is clear that in respondents3 amended complaint of fraud is not only alleged as a ground
for the issuance of the writ of preliminary attachment, but it is also the core of respondents3
complaint. The fear of the &ourt of Appeals that petitioners could force a trial on the merits
of the case on the strength of a mere motion to dissolve the attachment has a basis.
(). AR$ANDO C. CANLAS' $IGUEL D. CAPISTRANO' $ARRIETA PIA %s.
NAPICO 1O$EO>NERS ASSLN.' I M 0III' INC.' ET AL.' G.R. No. #4.+7('
!une (' .--4.
The threatened demolition of a dwelling by virtue of a final judgment of the court,
which in this case was affirmed with finality by this &ourt in (./. 9os. !11BBJ, !J:1CJ,
!111:!, !11:$J, is not included among the enumeration of rights as stated in the above,
+uoted .ection ! for which the remedy of a writ of amparo is made available. Their claim to
their dwelling, assuming they still have any despite the final and e%ecutory judgment
adverse to them, does not constitute right to life, liberty and security. There is, therefore, no
legal basis for the issuance of the writ of amparo.
(+. LP&S CO$$ERCIAL' INC. %s.
1ON. VENANCIO !. A$ILA' in 8is apait, as P6esiding !udge o9 t8e
Page 2.
Updates in Civil Procedure
Zenaida T. Galapate-Laguilles
Associate Justice
Court of Appeals
Regional T6ial Cou6t o9 Tag3ila6an Cit,' &6. * and T1E "IRST
CONSOLIDATED &AN/ :"C&; O" &O1OL' INC.'G.R. No. #5+55*' "e36ua6,
##' .--4.
The order denying petitioner3s motion for issuance of a T/O is an interlocutory order
on an incident which does not touch on the merits of the case or put an end to the
proceedings.The remedy against an interlocutory order is not certiorari, but an appeal in
case of an unfavorable decision. Only if there are circumstances that clearly demonstrate
the inade+uacy of an appeal that the remedy of certiorari is allowed,!# none of which is
present in the instant case.

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