1.G.R. No.

L-35989 October 28, 1977

FERMIN JALOVER, petitioner, vs. PORFERIO YTORIAGA et
al.

the orders dated January 26, 1970 and June 23, 1972,
because the said orders have long become final and
executory, hence, may no longer be disturbed.
HELD:

FACTS:
Private respondents PorferioYtoriaga and Consolacion Lopez
filed against Ana Hedriana and petitioner FerminJalover a
complaint alleging that they are owners of a Lot containing an
area 8,153 sqm;
By virtue of the effects of the current of the river, there was an
increase on its southwestern portion of around 900 square
meters;
In January, 1958, the defendants had the land increase
surveyed, placed concrete monuments thereon and took
possession, without the knowledge and consent of the plaintiff
The plaintiffs prayed that they be declared the owners of the
increased portion of the land, and that the defendants be
ordered to vacate the premises.
Issues having been joined, the case was set for trial. However,
it was postponed many times to a period of more than 6
years.When the case was called for trial, Presiding Judge
Ramon Blanco dismissed the case, for failure of private
respondents to appear in court.
2 years later,private respondents' lawyer, filed MR alleging that
respondents did not fail to prosecute because, during the times
that the case was set for hearing, at least 1of the respondents
was always present, and the record would show that the
transfers of hearing were all made at the instance of petitioner
or his counsel; and, moreover, private respondents had already
finished presenting their evidence.

It is settled that when a party is represented by counsel, notice

should be made upon the counsel, and notice upon the party
himself is not considered notice in law unless service upon the
party is ordered by the court. 1
Non-appearance of private respondents and their counsel at
the said hearing could not mean failure to prosecute on their
part, may only be construed as a waiver on private
respondents' part of the right to cross-examine the witnesses
whom petitioner might present and to object to the admissibility
of petitioner's evidence..
Relief from judgment under Rule 38 of the Revised Rules of
Court is not the appropriate remedy. A petition for relief is
available only if the judgment or order complained of has
already become final and executory; 6 but here, as earlier
noted, the order of January 26, 1970 never attained finality for
the reason that notice thereof was not served upon private
respondents' counsel of record. The petition for relief may
nevertheless be considered as a second motion for
reconsideration or a motion for new trial based on fraud and
lack of procedural due process.
Under the circumstances of the case, the issuance of the
orders now complained of cannot be said to have been
characterized with abuse of discretion.
ACCORDINGLY the instant petition is denied.
2.LIGAYA MINA et.al vs. ANTONIA PACSON et.al
FACTS:

Petitioner opposed the motion on the ground that the order of

dismissal was an adjudication on the merits and had long
become final.
Respondent Judge VenicioEscolin, who succeeded Judge
Blanco, issued an order denying the motion for reconsideration
on the ground that the order of dismissal had become final long
ago and was beyond the court's power to amend or change.
Private respondents filed a Petition for Relief claiming that the
order of dismissal was void because of lack of due process
and for having been obtained thru fraud, for the petitioner had
misrepresented to the court the status of the case by making
Judge Blanco - who was not the Presiding Judge when private
respondents presented their evidence and rested their case in
1963 - believe that trial had not even begun.
Petitioner opposed the petition for relief contending that private
respondents were served a copy of the order of dismissal on
February 5, 1970, and, therefore, pursuant to Section 3, Rule
38 of the Revised Rules of Court, the petition for relief should
have been filed within 60 days from February 5, 1970, and
within 6 months from January 26, 1970, when the order was
issued; hence, the filing of the petition was beyond the
reglementary period.

In the complaint filed in the CFI of Nueva Ecija, it is alleged

that plaintiffs are illegitimate children of the deceased Joaquin
Mina begotten by him with PilarLazo during the period from
1933 to 1958 while Joaquin Mina was lawfully married to
Antonia Pacson;
That the plaintiff Pablo Mina is a recognized illegitimate child of
the deceased Joaquin Mina;
That Joaquin Mina died intestate leaving no ascendants or
descendants, except his widow Antonia Pacson;
That he left various parcels of land enumerated in the
complaint but that on April 9, 1950 the defendants connived
and secured from Joaquin Mina, who was ill and did not know
what he was doing, the execution of the two deeds of sale
without consideration, fictitiously and fraudulently, transferring
his propertiesto the spouses Crispino Medina and Cresencia
Mina;
Plaintiffs pray that they be declared recognized illegitimate
children of the deceased Joaquin Mina, entitled to share in the
properties left by him and the deeds of sale be declared
fictitious, fraudulent and therefore, null and void

The petition for relief was given due course, respondent Judge
issued an order setting aside the orders dated January 26,
1970 and June 23, 1972, and setting the continuation of the
trial for September 15, 1972.

The defendants filed a motion to dismiss the complaint on the

ground of res judicata, alleging that a similar action had
previously been presented as in the same court, and by the
same parties.

Petitioner, moved for a reconsideration of the order however it

was denied.

However, it was denied. Also, MR is likewise denied. Hence

this petition..t

Hence, the present recourse by petitioner.

ISSUE:W/N the order dismissing the previous Civil Case No.

3015 bars the present civil action No. 3296 of the CFI of Nueva
Ecija.

ISSUE: W/N respondent Judge acted without or in excess of

jurisdiction or with grave abuse of discretion in setting aside

HELD:

We find for the appellant.

There is no complete identity between the parties in the first

case and those in the case at bar.

SEC. 17. Death of Party. After a party dies and the

claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of
the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within
such time as may be granted.

In the previous case Antonia Pacson was not included as

party-defendlant. The previous order of dismissal does not bar
the present complaint, not only because she was not made a
party but also because the issue of filiation.
In view of this fact, the present action should be considered
barred in respect to the action for the annulment of the deeds
of sale and as regards the defendants spouses Crispino
Medina and Cresencia Mina;
but as to the case for the declaration of the plaintiffs as
illegitimate children and heirs of the deceased Joaquin Mina
this latter case is not barred by the previous action.
WHEREFORE, the order of dismissal is hereby modified in the
sense that the action for the recognition of the filiation of the
plaintiffs should be allowed to continue against the defendant
Antonia Pacson; but the dismissal of the action for the
annulment of the deeds of sale is affirmed. Without costs.
3.AGUSTIN O. CASEASvs.
CONCEPCION SANCHEZ VDA. DE ROSALES et al.
FACTS:
On 1952, Rodolfo Araas and Agustin O. Caseas filed with
the CFI of Agusan, a complaint for specific performance and
enforcement of their alleged right under a certain deed of sale,
and damages against the spouses Jose A. Rosales and
Concepcion Sanchez.
The principal relief prayed in the complaint was for an order
directing the defendants-spouses to "execute a deed of
absolute sale of the property in favor of the assignee, plaintiff
Agustin O. Caseas.
After the defendants-spouses had filed their answer to the
above complaint, but before trial, the counsel for the plaintiffs
gave notice to the trial court that plaintiff Rodolfo Araas and
defendant Jose A. Rosales had both died.
The lower court directed the surviving plaintiff, Agustin O.
Caseas, to amend the complaint to effect the necessary
substitution of parties thereon. However, he failed to comply
with the order.
For such failure, the lower court issued an order of dismissal.
As no appeal was taken from the above order of dismissal, the
same, in due time, became final.
On 1960, Agustin O. Caseas, the same plaintiff filed with the
same CFI of Agusananother complaint against the widow and
heirs of the late Jose A. Rosales "to quiet, and for
reconveyance of, title to real property, with damages." The suit
referred itself to the very same property and asserted exactly
the same allegations as those made in the former complaint.
The defendants filed a motion to dismiss on several grounds,
namely: res judicata, prescription, lack of cause of action,
failure to include indispensable parties, and that the contract
subject of the complaint was void ab initio.
The lower court issued the order under appeal dismissing the
complaint on the ground of res judicata, lack of cause of action
and prescription. . Of the above grounds, though, the lower
court relied alone on the defendants' plea of res judicata, lack
of cause of action and prescription.
ISSUE: W/N the present case is barred by prior judgment and
prescription.

Similar in the case of Barrameda vs. Barbara, 90 Phil. 718,

inasmuch as there was no obligation on the part of the plaintiffappellant to amend his complaint, his failure to comply with
such an order did not justify the dismissal of his complaint.
Grounded as it was upon a void order, the dismissal was itself
void. It clearly may not be asserted to bar the subsequent
prosecution of the same or identical claim.
Insofar as the issue of prescription is concerned, this Court is
of the view that it should defer resolution on it until after Civil
Case No. 780 shall have been tried on the merits, considering
that one of the defenses set up by the appellant against the
said issue is the existence of a trust relationship over the
property in dispute.
In view of all the foregoing, the order dated January 20, 1961
dismissing Civil Case No. 780 is hereby set aside and the said
case is ordered remanded to the court of origin fortrial on the
merits.
4. RPB vs. Moline
5. SUSANA ABAY DE ARROYO, vs.
FRANCISCO ABAY et al.
FACTS:
Susana Abay de Arroyo filed in CFI of Negros Occidental a
petition for the probate of the will of her deceased first-degree
cousin CandelariaBenguan
On 28 May, the Court ordered that the petition be published
once a week for three consecutive weeks in Civismo, a
newspaper of general circulation in Negros Occidental, setting
the date of hearing thereof for the 23rd day of June 1956.
On the date and time set for the hearing of the petition attorney
Rolando Medalla, representing some of the heirs referred to as
opponents, moved for the postponement of the hearing to give
him time and opportunity to file a written objection to the
petition.
Whereupon, the hearing was postponed.
The opponents filed a motion to dismiss on the ground that a
petition for the probate of the same last will and testament had
been dismissed by the same Court in a previous special
proceedings No. 3628 and constitutes a bar to the present
proceedings
Court dismissed the petition and further denied the motion for
reconsideration. The petitioner appealed to the Court of
Appeals which certified the appeal to SC for only questions of
law are raised. .1wph1.t
ISSUE:
W/N the petition for the probate of a will is barred by a previous
special proceedings, which was dismissed for failure of the
petitioner and his counsel to appear on the date set for the
hearing thereof. .
HELD:
The SC upheld the contention of the appellant's that the
dismissal of the petition for probate in the previous special
proceedings is not an adjudication on the merits.

HELD:

The probate of a will may be the concern of one person or

several persons as usually is the case. The fault of one such
person may be imputed to him alone who must suffer the
consequences of his act. Such fault cannot be imputed to other
persons.
Hence, the failure of Felix Abay and his counsel to appear on
the date and time set for the hearing of the petition for the
probate of a will cannot prejudice the right of Susana Abay de
Arroyo, the petitioner, in a subsequent petition filed for the
probate of the same will and last testament.
So the provisions of the Rules cited and invoked by the
opponents-appellees cannot be made to apply to proceedings
for the probate of wills, because the probate of a will for
transmission of property rights to them should not be
prejudiced by the act or fault of another and because it is the
policy of the State to have such last wills and testaments
submitted to Court for their probate or legalization.
The order of dismissal appealed from is set aside and the
petition for probate of a will emanded to the CFI of Negros
Occidental for further proceedings.
Rule 18 (Pre-trial)
1.FILOIL MARKETING CORPORATION (now Petrophil
Corporation) vs. DY PAC & CO., INC.,
FACTS:
Filoil commenced an action for collection of sum of money with
interest against Dy Pac on the ground that the latter fails to
pay, notwithstanding repeated demands, the amount due to it
for petroleum products bought on credit.
At the hearing set, neither Dy Pac nor its counsel appeared.
Filoil was allowed by the City Court of Manila to proceed ex
parte. The said court rendered a decision on the same date
ordering Dy Pac to pay Filoil.
Dy Pac appealed to CFI Manila which immediately set the case
for pre-trial. It ruled that:
[]plaintiff and defendant, who are hereby ordered to prepare
a stipulation of facts based on their exhibits already marked
and submit the same to the court the parties are warned that
if they cannot submit the stipulation of facts, the Court will
dismiss the appeal.
CFI Manila dismissed the case for failure of the parties to
submit the required stipulation of facts and ordered the
immediate return of the records to the City Court for execution.
ISSUE: W/N the case can be dismissed on the ground that the
parties failed to submit a stipulation of facts.
HELD:
No. There is no law which compulsorily requires litigants to
stipulate at pre-trial on the facts and issues that may possibly
crop up in a particular case, upon pain dismissal of such case.
The process of securing admissions whether of facts or
evidence is essentially voluntary, since stipulations of facts, like
contracts, bind the parties thereto who are not allowed to
controvert statements made therein. Courts cannot compel the
parties to enter into an agreement upon the facts.
Where the parties are unable to arrive at a stipulation of facts
and do not reach an amicable settlement of their controversy,
the court must close the proceedings and go forward the trial of
the case. The CFI Manila committed serious error in dismissing
Dy Pacs appeal from the City Courts decision solely on the
ground that the parties failed to comply with the order.
2. Rodolfo Paredes, Tito Alago, AgripinoBaybay vs.
Ernesto Verano and CosmeHinunangan (2006)

A complaint for specific performance with damages was filed

by Hinunangan on the ground that Petitioners had blocked the
passage way in violation of the compromise agreement.
Petitioners denied the allegation contending that respondents
were not actual residents of the barangay and that the lot
covering the passage of right of way was sold by Hinunangan
to Paredes. Petitioners filed a MTD on the ground of lack of
cause of action. The trial court denied the MTD.
Pre-trial was set on April but was reset on June. However, it did
not push through either because none of the parties appeared.
On Nov, the RTC was informed of a proposed settlement. The
case was reset to January 2004. On January, private
respondents and their counsel were present. Petitioners were
also present but not their counsel.
RTC allowed respondents to present evidence ex parte for
failure of the defendants counsel to appear.
ISSUE: Whether or not the absence of counsel for petitioners
at the pre-trial, with all petitioners themselves present, is a
ground to declare them in default
HELD:
No. Absence of counsel at pre-trial does not ipso facto
authorise the judge to declare them in default. Sec. 4, Rule 18
imposes duty on litigating parties and their respective counsel
to appear at pre-trial. Sec. 5 penalizes the failure to appear of
either plaintiff or defendant but not of their counsel.
A judgment of default against one who failed to attend at pretrial or even to file an answer implies a waiver only of their right
to be heard and to present evidence to support their allegation
but not all their other rights.
Rule 19 (Intervention)
1.

G.R. No. 94005. April 6, 1993.

LUISA LYON NUAL, herein represented by ALBERT NUAL,

and ANITA NUAL HORMIGOS, petitioners,
vs.
THE COURT OF APPEALS and EMMA LYON DE LEON in her
behalf and as guardian ad litem of the minors HELEN
SABARRE and KENNY SABARRE, EDUARDO GUZMAN,
MERCEDEZ LYON TAUPAN, WILFREDO GUZMAN, MALLY
LYON ENCARNACION and DORA LYON DELAS PEAS,
respondents.
FACTS:
This case originated from a Civil Casefiled by Emma Lyon de
Leon in her behalf and as guardian of the respondentsagainst
petitioners for partition and accounting of a parcel of land
located in Isabela, Basilan City. Subject parcel of land was
formerly owned deceased parents of the respondents.
Private respondents claimed that said parcel of land has been
in possession of petitioner Luisa Nual since 1946 and that
she made no accounting of the income derived therefrom,
despite demands made by private respondents for the partition
and delivery of their shares.
TheCFI rendered judgment in favor of private respondents and
ordered the partition of the property but dismissing private
respondents' complaint for accounting.
The order of partition was affirmed by the Court of Appeals and
an order for the issuance of the writ of execution was issued by
the court.
Mary Lyon Martin, daughter of the late Frank C. Lyon and Mary
Ekstrom Lyon, assisted by her counsel filed a motion to quash
the order of execution with preliminary injunction.

FACTS:
In Civil Case 2767, a compromise was entered into regarding
the complaint for the establishment of a right of way.
Hinunangan granted a 2m-wide right of way in favour of
Paredes, Alago and Baybayin consideration of P6,000.00.

She contends that not being a party to the above-entitled case

her rights, interests, ownership and participation over the land
should not be affected by a judgment in the said case.

Trial court dismissed the motion filed by Mary Lyon Martin and
directed the partition of the property among the original party
plaintiffs and defendants.

CA rendered judgment declaring Union Bank guilty of forum

shopping and accordingly dismissed its petition
for certiorari.

The Commissioners manifested to the trial court that the name

of Mary Lyon Martin also appears in the TCT that can be
construed that she is one of the heirs.

SC in its decision affirmed ruling of CA, and declare the

SEC possessed jurisdiction over EYCOs petition for
suspension of payments filed pursuant to Section 5(d) of
Presidential Decree (P.D.) No. 902-A.

On January 9, 1987, the lower court issued the assailed order

directing the inclusion of Mary Lyon Martin as co-owner with a
share in the partition of the property.

SEC en banc issued an order for the liquidation and

dissolution of the EYCO Group and remanded to the
hearing panel for that purpose

Petitioners' motion for reconsideration was denied by the trial

court.

Another SEC en banc order is the appointment of

respondent Concepcion to actas EYCO Liquidator.

CA rendered its decision dismissing petitioners' appeal.

Three days later, Concepcion submitted before the

SEC a Liquidation Plan for the EYCO Group.

Petitioners' motion for reconsideration was denied, hence this

petition for review.

After due proceedings, the SEC approved, Liquidation Plan

submitted by Concepcion. However, his motion to
intervene, has been denied by the RTC on the ground of
lack of standing to intervene.

ISSUE: W/Nthe trial court may order the inclusion of Mary L.

Martin as co-heir entitled to participate in the partition of the
property considering that she was neither a party plaintiff nor a
party defendant in Civil Case for partition and accounting of the
property and that the decision rendered in said case has long
become final and executory.
HELD:
No.
In the case at bar, the decision of the trial court in Civil Case
has become final and executory. Thus, upon its finality, the trial
judge lost his jurisdiction over the case. Consequently, any
modification that he would make, as in this case, the inclusion
of Mary Lyon Martin would be in excess of his authority.
The remedy of Mary Lyon Martin is to file an independent suit
against the parties and all other heirs for her share in the
subject property, in order that all the parties in interest can
prove their respective claims.
The petition is GRANTED. The order of the lower court is
REVERSED and SET ASIDE.

The order, in addition, granted Union Banks earlier motion

to declare EYCO in default, and set a date for the exparte reception of Union Banks evidence.
Concepcion then moved for reconsideration of his motion to
intervene. Questioned, too, was the default aspect of the
order, arguing that the collection proceedings were
suspended until further Orders from this Court. RTC
denied his motion.
After Union Bank presented evidence Makati RTC
rendered partial judgmentordering EYCO to pay the
bank P400 million plus interests and attorneys fees.
Via a petition for certiorari and prohibition before the
CA, Concepcion challenged the RTCs partial judgment.
The appellate court reversed the Makati RTCs impugned
issuances and allowing Concepcion to intervene.
Hence this petition by the Union Bank.
ISSUE:
1. W/N SEC has jurisdiction over the case
2. W/N Concepcion has the right to intervene in
the case.
HELD:
1.

2.

Union Bank vs Concepcion

EYCO Group of Companies filed with the SECa Petition

for Suspension of Payment. EYCO describe the
corporations as having a combined assets that are more
than enough to pay off all debts, but nonetheless unable to
pay them as they fall due. Joining EYCO as co-petitioners
were EulogioYutingco and two other individuals holding
controlling interests in the composite corporations.
SEC Hearing Paneldirected the suspension of all actions,
claims and proceedings against EYCO.
Union Bank, one of the private banks which had granted credit
facilities to EYCO filed
a complaint for a sum of money against 4 members of the
EYCO Group and spouses Yutingcowith application for
preliminary attachment.
RTC issued the desired writ of preliminary attachment and
the levy on attachment was annotated on the titles
Union Bank, without awaiting for the SECs ruling on its motion
to dismiss, filed with the CA a petition forcertiorari to nullify the
SEC suspension order and its creation of the ManCom.
Also, Union Bank alleged that the jurisdiction over the basic
petition for declaration of suspension of payment pertains to
the RTC under Act No. 1956, as amended, or the Insolvency
Law.

Yes.

Transfer effected by R.A 8799 to RTC of the SECs

Jurisdiction did not divest the SEC of its jurisdiction
over SEC Case No. 09-97-5764.
Given that it had already issued, as early
as September 19, 1998, the suspension order after it
found the petition for suspension filed on September
16, 1998 to be sufficient in form and substance.
EYCOs petition for suspension for payment wasstill
pending with the SEC as of June 30, 2000. Accordingly,
the SECs jurisdiction still subsists until [the suspension
of payment case and its incidents are] finally disposed.
2.

Yes.

Intervention is a procedure by which a third person, not

originally party to the suit, but claiming an interest in the
subject matter, comes into the case, in order to protect his
right or interpose his claim. Its main purpose is to settle in
one action and by a single judgment all conflicting claims of
or the whole controversy among the persons involved.
Just like the CA, the Court has no doubt about the respondent,
as the duly-appointed liquidator of EYCOs remaining assets,
having a legal interest in the matter litigated in Civil Case No.
97-2184.
WHEREFORE, petition is DENIED and decision of
CAis AFFIRMED.

3. VIRRA MALL TENANTS ASSOCIATION, INC., vs, VIRRA

MALL GREENHILLS ASSOCIATION, INC.
G.R. No. 182902
FACTS:
Ortigas& Company, Limited Partnership is the owner of the
Greenhills Shopping Center. Ortigas and Virra Realty
Development Corporation entered into a Contract of Lease.
Thereafter, Virra Realty organized respondent Virra Mall
Greenhills Association, an association of all the tenants and
leasehold right holders, who managed and operated Virra Mall.
In the First Contract of Lease, VMGA assumed and was
subrogated to all the rights, obligations and liabilities of Virra
Realty. VMGA, through its president, William Uy requested
from Ortigas the renewal of the First Contract of Lease.VGMA
secured two insurance policies to protect Virra Mall against
damage by fire and other causes.
Virra Mall was gutted by fire, requiring substantial repair and
restoration. VMGA thus filed an insurance claim .Thereafter,
the proceeds of the insurance were released to VMGA.
On 3 September 2001, Ortigas entered into a Contract of
Lease (Second Contract of Lease) with Uy .On 11 September
2001, the latter assigned and transferred to petitioner Virra
Mall Tenants Association all his rights and interests over the
property.
Ortigas filed a Complaint for Specific Performance with Damages
and Prayer for Issuance of a Writ of Preliminary Attachment
against several defendants, including herein respondents.
It accused them of fraud, misappropriation and conversion of
substantial portions of the insurance proceeds for their own
personal use unrelated to the repair and restoration of Virra Mall.
VMTA filed a Complaint-in-Intervention. It claimed that as the
assignee or transferee of the rights and obligations of Uy in the
Second Contract of Lease, and upon the order of Ortigas, it
had engaged the services of various contractors. Thus, VMTA
sought the reimbursement of the expenses it had incurred in
relation thereto.
RTC Br. 67 admitted the Complaint-in-Intervention.he CA
reversed the ruling of RTC Br. 67 and dismissed the
Complaint-in-Intervention on the following grounds: (a) VMTA
failed to state a cause of action; (b) VMTA has no legal interest
in the matter in litigation; and (c) the Complaint-in-Intervention
would cause a delay in the trial of the action, make the issues
more complicated, prejudice the adjudication of the rights of
the parties, stretch the issues.
Issue: Whether or not VTMA may be allowed to intervene in
the case
Ruling:We rule in favor of VMTA. Section 1, Rule 19 of the
Rules of Court provides:Who may intervene. ..
In Executive Secretary v. Northeast Freight,1[21] this Court
explained intervention in this wise:
Intervention is not a matter of absolute right but may be
permitted by the court when the applicant shows facts which
satisfy the requirements of the statute authorizing intervention.
Under our Rules of Court, what qualifies a person to
intervene is his possession of a legal interest in the matter
in litigationor in the success of either of the parties, or an
interest against both; or when he is so situated as to be
adversely affected by a distribution or other disposition of
property in the custody of the court or an officer thereof.
As regards the legal interest as qualifying factor, this Court has
ruled that such interest must be of a direct and immediate
character so that the intervenor will either gain or lose by
the direct legal operation of the judgment. The interest must

be actual and material, a concern which is more than mere

curiosity, or academic or sentimental desire; it must not be
indirect and contingent, indirect and remote, conjectural,
consequential or collateral.
However, notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound discretion of the
court, the exercise of which is limited by considering whether
or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or
not the intervenors rights may be fully protected in a separate
proceeding.
Applying the foregoing points to the case at bar, VMTA may be
allowed to intervene, and the ruling of RTC Br. 67 allowing
intervention was wrongly reversed by the CA because such a
ruling does not constitute grave abuse of discretion.
It is clear from the foregoing allegations that VMTAs purported
right is rooted in its claim that it is the real beneficiary of the
insurance proceeds, on the grounds that it had (a) facilitated
the repair and restoration of the insured infrastructure upon the
orders of Ortigas, and (b) advanced the costs thereof.
Corollarily, respondents have a duty to reimburse it for its
expenses since the insurance proceeds had already been
issued in favor of respondent VMGA, even if the latter was not
rightfully entitled thereto.
Finally, the imputed act or omission on the part of respondents
that supposedly violated the right of VMTA was respondent
VMGAs refusal, despite demand, to release the insurance
proceeds it received to reimburse the former for the expenses
it had incurred in relation to the restoration and repair of Virra
Mall. Clearly, then, VMTA was able to establish its cause of
action.

MODES of DISCOVERY
1. LOURDES CAMUS DE LOPEZ et al.
vs.
HON. CIRILO G. MACEREN et al.
FACTS:
Petitioner instituted the present case for the purpose of
annulling the order of the respondent judge prohibiting her in
taking her deposition in the Civil Case no. 1035.
Petitioner maintains that respondent Judge committed a grave
abuse of discretion in forbidding the taking of said deposition,
she being entitled to it as a matter of right, without leave of
court, after the filing of the answer of the defendants
Deposition pending action, when may be taken. By
leave of court after jurisdiction has been obtained
over any defendant or over property which is the
subject of the action, or without such leave after an
answer has been served, the testimony of any
person, whether a party or not, may be taken, at the
instance of any party, by deposition upon oral
examination or written interrogatories.
Under the other hand, respondents invoke, in their favor,
section 16 of the same rule, reading:
Orders for the protection of parties and deponents.
After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any
party or by the person to be examined and upon
notice and for good cause shown, the court in which
the action is pending may make an order that the
deposition shall not be taken, or that it may be taken
at some designated place other than that stated in the
notice, or that it may be taken only on written
interrogatories, or that certain matters shall not be
inquired into, or that the scope of the examination
shall be limited to certain matters, or that the
examination shall be held with no one present except
the parties to the action and their officers or counsel,
or that after being sealed the deposition shall be
opened only by order of the court, or that secret

processes, developments or research need not be

disclosed, or that the parties shall simultaneously file
specified documents or information enclosed in
sealed envelopes to be opened as directed by the
court; or the court may make any other order which
justice requires to protect the party or witness from
annoyance, embarrassment, or oppression.
This provision explicitly vests in the court the power to "order
that the deposition shall not be taken" and, this grant connotes
the authority to exercise discretion in connection therewith.
It is well-settled, however, that the discretion conferred by law
is not unlimited; that it must be exercised, not arbitrarily,
capriciously or oppressively, but in a reasonable manner and in
consonance with the spirit of the law, to the end that its
purpose may be attained.
It is not claimed that the order complained of sought to avert
any of the evils which said section 16 was meant to prevent or
arrest. Moreover, petitioner was permitted to institute and
maintain Civil Case No. 1035 as a pauper.

worth approximately half a million pesos. The main reason

given in support of the contested order is that, if the deposition
were taken, the court could not observe the behaviour of the
deponents. The insufficiency of this circumstance to justify the
interdiction of the taking of a deposition becomes apparent
when we consider that, otherwise, no deposition could ever be
taken, said objection or handicap being common to all
depositions alike. In other words, the order of respondent
Judge cannot be sustained without nullifying the right to take
depositions, and, therefore, without, in effect repealing section
1 of Rule 18 of the Rules of Court, which, clearly, was not
intended by the framers of section 16 of the same rule.
It is, consequently, clear that a grave abuse of discretion was
committed by respondent Judge in issuing the aforesaid order
of January 11, 1954, for which reason the same should be, as
it is hereby annulled and set aside, with cost against the
respondents, except the Hon. Cirilo C. Maceren.
So ordered.

As such, she can ill afford to meet the expenses to make, with
her witnesses, the trip or trips from Manila to Davao, and to
stay in said province for the time necessary for the hearing of
the case, which might not take place on the first date set
therefor.
Hence, the order in question tended, in effect, to deprive her,
not only of her right, under section 1 of Rule 18, to take the
deposition in question, but also, of the opportunity to prove her
claim and, consequently, of the due process guaranteed by the
Constitution.
Upon the other hand, the records indicate that the defendants
in Civil case No. 1035 who are the widow of Salvador
Lopez, Sr. and their legitimate children must be well-off
financially, for the estate of the deceased Salvador Lopez, Sr.,
which has already been partitioned among them, appears to be