THIRD DIVISION
|
ATTY.
ROGELIO E. SARSABA,
Petitioner, - versus - FE VDA. DE TE, represented by her Attorney-in-Fact,
FAUSTINO CASTAÑEDA, Respondents. |
G.R. No. 175910 Present:
Ynares-Santiago,
J., Chairperson, chico-nazario, VELASCO, JR., nachura, and PERALTA, JJ. Promulgated: July 30, 2009
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I O N PERALTA, J.: |
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Before
us is a petition for review on certiorari[1] with prayer for preliminary injunction
assailing the Order[2] dated
The
facts, as culled from the records, follow.
On
P43,606.47. After the
Writ of Execution was returned unsatisfied, Labor Arbiter Newton R. Sancho
issued an Alias Writ of Execution[3] on
Meanwhile,
respondent Fe Vda. de Te, represented by her attorney-in-fact, Faustino
Castañeda, filed with the RTC, Branch 18, Digos, Davao del Sur, a Complaint[5]
for recovery of motor vehicle, damages with prayer for the delivery of the
truck pendente lite against
petitioner, Sereno, Lavarez and the NLRC of Davao City, docketed as Civil Case
No. 3488.
Respondent
alleged that: (1) she is the wife of the late Pedro Te, the registered owner of
the truck, as evidenced by the Official Receipt[6]
and Certificate of Registration;[7] (2)
Gasing merely rented the truck from her; (3) Lavarez erroneously assumed that
Gasing owned the truck because he was, at the time of the “taking,”[8] in
possession of the same; and (4) since neither she nor her husband were parties
to the labor case between Sereno and Gasing, she should not be made to answer
for the judgment award, much less be deprived of the truck as a consequence of
the levy in execution.
Petitioner
filed a Motion to Dismiss[9] on
the following grounds: (1) respondent has no legal personality to sue, having
no real interests over the property subject of the instant complaint; (2) the
allegations in the complaint do not sufficiently state that the respondent has
cause of action; (3) the allegations in the complaint do not contain sufficient
cause of action as against him; and (4) the complaint is not accompanied by an
Affidavit of Merit and Bond that would entitle the respondent to the delivery
of the tuck pendente lite.
The
NLRC also filed a Motion to Dismiss[10]
on the grounds of lack of jurisdiction and lack of cause of action.
Meanwhile,
Lavarez filed an Answer with Compulsory Counterclaim and Third-Party Complaint.[11] By way of special and affirmative defenses,
he asserted that the RTC does not have jurisdiction over the subject matter and
that the complaint does not state a cause of action.
On
In
his Answer,[13]
petitioner denied the material allegations in the complaint. Specifically, he cited as affirmative
defenses that: respondent had no legal personality to sue, as she had no
interest over the motor vehicle; that there was no showing that the heirs have
filed an intestate estate proceedings of the estate of Pedro Te, or that
respondent was duly authorized by her co-heirs to file the case; and that the
truck was already sold to Gasing on March 11, 1986 by one Jesus Matias, who
bought the same from the Spouses Te. Corollarily,
Gasing was already the lawful owner of the truck when it was levied on
execution and, later on, sold at public auction.
Incidentally,
Lavarez filed a Motion for Inhibition,[14] which was opposed[15]
by respondent.
On
Eventually, the RTC
issued an Order[18] dated
On
It appeared that the respondent, Fe Vda. de Te, died on
Respondent, through her lawyer, Atty. William G. Carpentero,
filed an Opposition,[21]
contending that the failure to serve summons upon Sereno is not a ground for
dismissing the complaint, because the other defendants have already submitted
their respective responsive pleadings.
He also contended that the defendants, including herein petitioner, had
previously filed separate motions to dismiss the complaint, which the RTC
denied for lack of merit. Moreover,
respondent's death did not render functus officio her right to sue since
her attorney-in-fact, Faustino Castañeda, had long testified on the complaint
on March 13, 1998 for and on her behalf and, accordingly, submitted documentary
exhibits in support of the complaint.
On
Petitioner then filed a Motion for Reconsideration
with Motion for Inhibition,[23] in
which he claimed that the judge who issued the Order was biased and
partial. He went on to state that the
judge's husband was the defendant in a petition for judicial recognition of
which he was the counsel, docketed as Civil Case No. C-XXI-100, before the RTC,
Branch 21, Bansalan,
Acting on the motion for inhibition, Judge Carmelita
Sarno-Davin granted the same[24]
and ordered that the case be re-raffled to Branch 18. Eventually, the said RTC issued an Order[25] on
Hence, petitioner directly sought recourse from the Court
via the present petition involving pure questions of law, which he claimed were
resolved by the RTC contrary to law, rules and existing jurisprudence.[26]
There is a “question of law” when the doubt or difference arises as to what the law is on certain state of facts, and which does not call for an examination of the probative value of the evidence presented by the parties-litigants. On the other hand, there is a “question of fact” when the doubt or controversy arises as to the truth or falsity of the alleged facts. Simply put, when there is no dispute as to fact, the question of whether or not the conclusion drawn therefrom is correct, is a question of law.[27]
Verily,
the issues raised by herein petitioner are “questions of law,” as their resolution rest solely on what
the law provides given the set of circumstances availing. The first issue involves the jurisdiction of
the court over the person of one of the defendants, who was not served with
summons on account of his death. The
second issue, on the other hand, pertains to the legal effect of death of the
plaintiff during the pendency of the case.
At
first brush, it may appear that since pure questions of law were raised,
petitioner's resort to this Court was justified and the resolution of the
aforementioned issues will necessarily follow.
However, a perusal of the petition requires that certain procedural
issues must initially be resolved before We delve into the merits of the case.
Notably,
the petition was filed directly from the RTC which issued the Order in the
exercise of its original jurisdiction.
The question before Us then is: whether or not petitioner correctly
availed of the mode of appeal under Rule 45 of the Rules of Court.
Significantly,
the rule on appeals is outlined below, to wit:[28]
(1) In all cases
decided by the RTC in the exercise of its original jurisdiction, appeal may
be made to the Court of Appeals by mere notice of appeal where the appellant
raises questions of fact or mixed questions of fact and law;
(2) In all cases
decided by the RTC in the exercise of its original jurisdiction where
the appellant raises only questions of law, the appeal must be taken to the
Supreme Court on a petition for review on certiorari under Rule 45.
(3) All appeals from
judgments rendered by the RTC in the exercise of its appellate jurisdiction,
regardless of whether the appellant raises questions of fact, questions of law,
or mixed questions of fact and law, shall be brought to the Court of Appeals by
filing a petition for review under Rule 42.
Accordingly,
an appeal may be taken from the RTC which exercised its original jurisdiction,
before the Court of Appeals or directly before this Court, provided that the
subject of the same is a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by the
Rules to be appealable.[29] The first mode of appeal, to be filed before
the Court of Appeals, pertains to a writ of error under Section 2(a),
Rule 41 of the Rules of Court, if questions of fact or questions of fact and
law are raised or involved. On the
other hand, the second mode is by way of an appeal by certiorari before the Supreme Court under Section 2(c), Rule 41, in
relation to Rule 45, where only questions of law are raised or involved.[30]
An order or judgment of the RTC is deemed final when
it finally disposes of a pending action, so that nothing more can be done with
it in the trial court. In other words,
the order or judgment ends the litigation in the lower court.[31] On the other hand, an order which does not
dispose of the case completely and indicates that other things remain to be
done by the court as regards the merits, is interlocutory. Interlocutory refers to something
between the commencement and the end of the suit which decides some point or
matter, but is not a final decision on the whole controversy.[32]
The subject of the present petition is an
Order of the RTC, which denied petitioner's Omnibus Motion to Dismiss, for lack
of merit.
We
have said time and again that an
order denying a motion to dismiss is interlocutory.[33] Under Section 1(c), Rule 41 of the Rules of
Court, an interlocutory order is not appealable. As a remedy for the denial, a party has to
file an answer and interpose as a defense the objections raised in the motion,
and then to proceed to trial; or, a party may immediately avail of the remedy
available to the aggrieved party by filing an appropriate special civil action
for certiorari under Rule 65 of the Revised Rules of Court. Let it be stressed though that a petition
for certiorari is appropriate only when an order has been issued without
or in excess of jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction.
Based on the foregoing, the Order of the RTC denying
petitioner's Omnibus Motion to Dismiss is not appealable even on pure questions
of law. It is worth mentioning that the
proper procedure in this case, as enunciated by this Court, is to cite such
interlocutory order as an error in the appeal of the case -- in the event that
the RTC rules in favor of respondent -- and not to appeal such interlocutory
order. On the other hand, if the
petition is to be treated as a petition for review under Rule 45, it would
likewise fail because the proper subject would only be judgments or final
orders that completely dispose of the case.[34]
Not being a proper subject of an appeal, the Order of the RTC is considered interlocutory. Petitioner should have proceeded
with the trial of the case and, should the RTC eventually render an
unfavorable verdict, petitioner should assail the said Order as part of an
appeal that may be taken from the final judgment to be rendered in this
case. Such rule is founded on
considerations of orderly procedure, to
forestall useless appeals and avoid
undue inconvenience to the appealing party by
having to assail orders as they are promulgated by the court, when all
such orders may be contested in a single appeal.
In one
case,[35]
the Court adverted to the hazards of interlocutory appeals:
It is axiomatic that an interlocutory order cannot be challenged by an appeal. Thus, it has been held that “the proper remedy in such cases is an ordinary appeal from an adverse judgment on the merits, incorporating in said appeal the grounds for assailing the interlocutory order. Allowing appeals from interlocutory orders would result in the `sorry spectacle’ of a case being subject of a counterproductive ping-pong to and from the appellate court as often as a trial court is perceived to have made an error in any of its interlocutory rulings. x x x.
Another
recognized reason of the law in permitting appeal only from a final order or
judgment, and not from an interlocutory or incidental one, is to avoid
multiplicity of appeals in a single action, which must necessarily suspend the
hearing and decision on the merits of the case during the pendency of the
appeal. If such appeal were allowed, trial
on the merits of the case would necessarily be delayed for a considerable
length of time and compel the adverse party to incur unnecessary expenses, for
one of the parties may interpose as many appeals as incidental questions may be
raised by him, and interlocutory orders rendered or issued by the lower court.[36]
And, even
if We treat the petition to have been filed under Rule 65, the same is still
dismissible for violating the principle on hierarchy of courts. Generally, a direct resort to us in a
petition for certiorari is highly improper, for it violates the
established policy of strict observance of the judicial hierarchy of courts.[37] This principle, as a rule, requires that
recourse must first be made to the lower-ranked court exercising concurrent
jurisdiction with a higher court.
However, the judicial hierarchy of courts is not an iron-clad rule. A strict application of the rule is not
necessary when cases brought before
the appellate courts
do not involve
factual but legal questions.[38]
In the
present case, petitioner submits pure questions of law involving the effect of
non-service of summons following the death of the person to whom it should be
served, and the effect of the death of the complainant during the pendency of
the case. We deem it best to rule on
these issues, not only for the benefit of the bench and bar, but in order to prevent
further delay in the trial of the case.
Resultantly, our relaxation of the policy of strict observance of the
judicial hierarchy of courts is warranted.
Anent the
first issue, petitioner argues that, since Sereno died before summons was
served on him, the RTC should have dismissed the complaint against all the
defendants and that the same should be filed against his estate.
The
Sheriff's Return of Service[39]
dated
In view of Sereno's
death, petitioner asks that the complaint should be dismissed, not only against
Sereno, but as
to all the defendants, considering that the RTC did not acquire
jurisdiction over the person of Sereno.
Jurisdiction over a party is acquired
by service of summons by the sheriff, his deputy or other proper court officer,
either personally by handing a copy thereof to the defendant or by substituted service.[40] On
the other
hand,
summons is a writ by which the defendant is notified of the action brought
against him. Service of such writ is
the means by which the court may acquire jurisdiction over his person.[41]
Records
show that petitioner had filed a Motion to Dismiss on the grounds of lack of
legal personality of respondent; the allegations in the complaint did not
sufficiently state that respondent has a cause of action or a cause of action
against the defendants; and, the complaint was not accompanied by an affidavit
of merit and bond. The RTC denied the
motion and held therein that, on the basis of the allegations of fact in the
complaint, it can render a valid judgment.
Petitioner, subsequently, filed his answer by denying all the material
allegations of the complaint. And by
way of special and affirmative defenses, he reiterated that respondent had no
legal personality to sue as she had no real interest over the property and that
while the truck was still registered in Pedro Te's name, the same was already sold
to Gasing.
Significantly, a motion to dismiss may
be filed within the time for but before the filing of an answer to the
complaint or pleading asserting a claim.[42] Among the grounds mentioned is the court's
lack of jurisdiction over the person of the defending party.
As a rule, all defenses and objections
not pleaded, either in a motion to dismiss or in an answer, are deemed waived.[43] The exceptions to this rule are: (1) when
the court has no jurisdiction over the subject matter, (2) when there is another
action pending between the parties for the
same cause, or (3) when the
action is barred by prior judgment or by statute of limitations, in which
cases, the court may dismiss the claim.
In the case before Us, petitioner
raises the issue of lack of jurisdiction over the person of Sereno, not in his
Motion to Dismiss or in his Answer but only in his Omnibus Motion to
Dismiss. Having failed to invoke this
ground at the proper time, that is, in a motion to dismiss, petitioner cannot
raise it now for the first time on appeal.
In fine, We cannot countenance
petitioner's argument that the complaint against the other defendants should
have been dismissed, considering that the RTC never acquired jurisdiction over
the person of Sereno. The court's
failure to acquire jurisdiction over one's person is a defense which is
personal to the person claiming it.
Obviously, it is now impossible for Sereno to invoke the same in view of
his death. Neither can petitioner
invoke such ground, on behalf of Sereno, so as to reap the benefit of having
the case dismissed against all of the defendants. Failure to serve summons on Sereno's person
will not be a cause for the dismissal of the complaint against the other
defendants, considering that they have been served with copies of the summons
and complaints and have long submitted their respective responsive
pleadings. In fact, the other defendants
in the complaint were given the chance to raise all possible defenses and
objections personal to them in their respective motions to dismiss and their
subsequent answers.
We
agree with the RTC in its Order when it resolved the issue in this wise:
As correctly pointed by defendants, the Honorable Court has not acquired jurisdiction over the person of Patricio Sereno since there was indeed no valid service of summons insofar as Patricio Sereno is concerned. Patricio Sereno died before the summons, together with a copy of the complaint and its annexes, could be served upon him.
However, the failure to effect service of summons unto Patricio Sereno, one of the defendants herein does not render the action DISMISSIBLE, considering that the three (3) other defendants, namely, Atty. Rogelio E. Sarsaba, Fulgencio Lavares and the NLRC, were validly served with summons and the case with respect to the answering defendants may still proceed independently. Be it recalled that the three (3) answering defendants have previously filed a Motion to Dismiss the Complaint which was denied by the Court.
Hence, only the case against Patricio Sereno will be DISMISSED and the same may be filed as a claim against the estate of Patricio Sereno, but the case with respect to the three (3) other accused will proceed.
Anent the second issue, petitioner moves that respondent's
attorney-in-fact, Faustino Castañeda, be discharged as he has no more legal
personality to sue on behalf of Fe Vda.
de Te, who passed away on
When a party to a pending action dies and the claim is not extinguished, the Rules of Court require a substitution of the deceased.[44] Section 1, Rule 87 of the Rules of Court enumerates the actions that survived and may be filed against the decedent's representatives as follows: (1) actions to recover real or personal property or an interest thereon, (2) actions to enforce liens thereon, and (3) actions to recover damages for an injury to a person or a property. In such cases, a counsel is obliged to inform the court of the death of his client and give the name and address of the latter's legal representative.[45]
The rule on substitution of parties is governed by Section
16,[46]
Rule 3 of the 1997 Rules of Civil Procedure, as amended.
Strictly speaking, the rule on substitution by heirs is not
a matter of jurisdiction, but a requirement of due process. The rule on substitution was crafted to
protect every party's right to due process.
It was designed to ensure that the deceased party would continue to be
properly represented in the suit through his heirs or the duly appointed legal
representative of his estate. Moreover,
non-compliance with the Rules results in the denial of the right to due process
for the heirs who, though not duly notified of the proceedings, would be
substantially affected by the decision rendered therein. Thus, it is only when there is a denial of
due process, as when the deceased is not represented by any legal
representative or heir, that the court nullifies the trial proceedings and the
resulting judgment therein.[47]
In the
case before Us, it appears that respondent's counsel did not make any
manifestation before the RTC as to her death.
In fact, he had actively participated in the proceedings. Neither had he shown any proof that he had
been retained by respondent's legal representative or any one who succeeded
her.
However,
such failure of counsel would not lead Us to invalidate the proceedings that
have long taken place before the RTC.
The Court has repeatedly declared that failure of the counsel to comply
with his duty to inform the court of the death of his client, such that no
substitution is effected, will not invalidate the proceedings and the judgment
rendered thereon if the action survives the death of such party. The trial court's jurisdiction over the case
subsists despite the death of the party.[48]
The purpose behind this rule is the protection of the right
to due process of every party to the litigation who may be affected by the
intervening death. The deceased
litigants are themselves protected as they continue to be properly represented
in the suit through the duly appointed legal representative of their estate.[49]
Anent the claim of petitioner that the special power of
attorney[50] dated
Agency is extinguished by
the death of the principal.[51] The only exception where the agency shall
remain in full force and effect even after the death of the principal is when
if it has been constituted in the common interest of the latter and of the
agent, or in the interest of a third person who has accepted the stipulation in
his favor.[52]
A perusal of the special power of attorney leads us to
conclude that it was constituted for the benefit solely of the principal or for
respondent Fe Vda. de Te. Nowhere can we
infer from the stipulations therein that it was created for the common interest
of respondent and her attorney-in-fact.
Neither was there any mention that it was to benefit a third person who
has accepted the stipulation in his favor.
On this
ground, We agree with petitioner. However, We do not believe that such ground
would cause the dismissal of the complaint.
For as We have said, Civil Case No. 3488, which is an action for the recovery
of a personal property, a motor vehicle, is an action that survives pursuant to
Section 1, Rule 87 of the Rules of Court.
As such, it is not extinguished by the death of a party.
In Gonzalez v. Philippine Amusement and Gaming
Corporation,[53] We
have laid down the criteria for determining whether an action survives the
death of a plaintiff or petitioner, to wit:
x x x The question as to whether an action
survives or not depends on the nature of the action and the damage sued
for. If the causes of action which
survive the wrong complained [of] affects primarily and principally property
and property rights, the injuries to the person being merely incidental, while
in the causes of action which do not survive the injury complained of is to the
person the property and rights of property affected being incidental. x x x
Thus, the RTC aptly resolved the second issue with the
following ratiocination:
While it may be true as alleged by defendants that
with the death of Plaintiff, Fe Vda. de Te, the Special Power of Attorney she
executed empowering the Attorney-in-fact, Faustino Castañeda to sue in her
behalf has been rendered functus officio,
however, this Court believes that the Attorney-in-fact had not lost his
personality to prosecute this case.
It bears stressing that when this case was initiated/filed by the Attorney-in-fact, the plaintiff was still very much alive.
Records reveal that the Attorney-in-fact has testified long before in behalf of the said plaintiff and more particularly during the state when the plaintiff was vehemently opposing the dismissal of the complainant. Subsequently thereto, he even offered documentary evidence in support of the complaint, and this court admitted the same. When this case was initiated, jurisdiction was vested upon this Court to try and hear the same to the end. Well-settled is the rule to the point of being elementary that once jurisdiction is acquired by this Court, it attaches until the case is decided.
Thus, the proper remedy here is the Substitution of Heirs and not the dismissal of this case which would work injustice to the plaintiff.
SEC. 16, RULE 3 provides for the substitution of the plaintiff who dies pending hearing of the case by his/her legal heirs. As to whether or not the heirs will still continue to engage the services of the Attorney-in-fact is another matter, which lies within the sole discretion of the heirs.
In
fine, We hold that the petition should be denied as the RTC Order is
interlocutory; hence, not a proper subject of an appeal before the Court. In the same breath, We also hold that, if
the petition is to be treated as a petition for certiorari as a
relaxation of the judicial hierarchy of courts, the same is also dismissible
for being substantially insufficient to warrant the Court the nullification of
the Order of the RTC.
Let this be an occasion for Us to reiterate that the rules
are there to aid litigants in prosecuting or defending their cases before the
courts. However, these very rules
should not be abused so as to advance one's personal purposes, to the detriment
of orderly administration of justice.
We can surmise from the present case herein petitioner's manipulation in
order to circumvent the rule on modes of appeal and the hierarchy of courts so
that the issues presented herein could be settled without going through the
established procedures. In Vergara,
Sr. v. Suelto,[54]
We stressed that this should be the constant policy that must be observed
strictly by the courts and lawyers, thus:
x x x. The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist therefor. Hence, that jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ’s procurement must be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe.[55]
WHEREFORE, premises considered, the Petition
is DENIED. The Order dated
SO ORDERED.
DIOSDADO
M. PERALTA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO PRESBITERIO J. VELASCO, JR.
Associate Justice Associate
Justice
ANTONIO EDUARDO
B. NACHURA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate
Justice
Third
Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson’s Attestation, I certify that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
REYNATO
S. PUNO
Chief Justice
[1] Pursuant to Rule 45 of the 1997 Rules of Civil Procedure; rollo, pp. 11-26.
[2] Penned by Judge Carmelita Sarno-Davin; id. at 33-34.
[3] Records, pp. 76-78.
[4] Certificate of
[5] Records, pp. 2-7.
[6] Annex “B” of the Complaint, id. at 11.
[7] Annex “C” of the Complaint, id. at 12.
[8] Extract from the Police Blotter of the Kiblawan
Municipal Police Office, dated
[9] Records, pp. 16-26.
[10]
[11]
[12] Penned by Judge Rodolfo A. Escovilla; id. at 175-177.
[13] Records, pp. 196-199.
[14]
[15]
[16]
[17]
[18]
[19] Rollo, pp. 56-58.
[20] Named as Prescilla Suarez Te in her Death Certificate, records, p. 305.
[21] Rollo, pp. 308-310.
[22] Supra note 2.
[23] Rollo, pp. 36-42.
[24] Order dated
[25] Rollo, p. 50.
[26]
[27] Cucueco v. Court of Appeals, 484 Phil. 254, 264 (2004).
[28] Sevilleno v. Carilo, G.R. No. 146454, September 14, 2007, 533 SCRA
385, 388, citing Macawiwili Gold Mining
and Development Co., Inc. v. Court of Appeals, 297 SCRA 602 (1998). Significantly, under the Revised Rules on
Criminal Procedure, all criminal cases, where the penalty imposed by the RTC is
death, reclusion perpetua or life imprisonment, are now appealed before
the Court of Appeals, instead of directly before this Court on automatic
review, which new procedure was in accordance with the pronouncement in People
v. Mateo (G.R. Nos. 147678-87, July 7, 2007, 433 SCRA 640).
[29] 1997 Rule of Civil Procedure (as amended), Rule 41, Sec. 1.
[30] First Bancorp, Inc. v. Court of Appeals, G. R. No. 151132, June 22, 2006, 492 SCRA 221, 235, citing Rule 41, Section 2, 1997 Rules of Civil Procedure, as amended.
[31] Madrigal Transport, Inc. v. Lapanday Holdings Corporation, G.R. No. 156067, August 1, 2004, 436 SCRA 123, 132.
[32] Philippine Computer Solutions, Inc. v. Hernandez, G.R. No. 168776, July 17, 2007, 527 SCRA 809, 824.
[33] Mondragon Leisure and Resorts Corporation v. United Coconut Planters Bank, 471 Phil. 570, 574 (2004).
[34] De Castro v. Fernandez, G.R. No. 155041,
[35] Philippine Computer Solutions, Inc. v. Hernandez, supra note 32, at 825, citing Go v. Court of Appeals, 297 SCRA 574, 581-582 (1998).
[36] Judy Anne L. Santos v. People of the
[37] Pacoy v. Cajigal, G.R. No. 157472,
[38] Rogelio Z. Bagabuyo v. Comelec, G.R. No.
176970,
[39] Records, p. 49.
[40] St. Aviation Services Co., Pte., Ltd. v. Grand International Airways, Inc., G.R. No. 140288, October 23, 2006, 505 SCRA 30, 36.
[41] Casimina v. Legaspi, G.R. No. 147530,
[42] 1997 Rules of Civil Procedure (as amended), Rule 16, Sec. 1(a).
[43] 1997 Rules of Civil Procedure (as amended), Rule 9, Sec. 1.
[44] De la Cruz v. Joaquin, G.R. No. 162788,
[45] Napere v. Barbarona, G.R. No.
160426,
[46] SEC. 16. Death of party; duty of counsel. - Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed
to be substituted for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem
for the minor heirs.
The court shall forthwith order said
legal representative or representatives to appear and be substituted within a
period of thirty (30) from notice. If no
legal representative is named by the counsel for the deceased party, or if the
one so named shall fail to appear within the specified period, the court may
order the opposing party, within a specified time, to procure the appointment
of an executor or administrator for the estate of the deceased and the latter
shall immediately appear for and on behalf of the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs.
[47] Napere v. Barbona, supra note 45, at 382.
[48]
[49] Sumaljag v. Literato, G.R. No. 149787,
[50] Records, pp. 9-10.
[51] New Civil Code, Article 1919 (3).
[52] New Civil Code, Article 1930.
[53] G.R. No. 144891,
[54] G.R. No. L-74766,
[55]