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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)

G.R. No. L-17721 October 16, 1961 defendants could not pay the plaintiff, because they have so
GREGORIO APELARIO, doing business under the style "GREGORIO many accounts receivable which have not yet been paid to them,
TRADING," plaintiff-appelleee, vs. INES CHAVEZ & COMPANY, LTD., of which fact the defendant was duly informed by the plaintiff and
doing business under the style "FIDELITY MOTOR SUPPLY thereby requested to wait a while. (R. App. p. 27)
COMPANY, LTD., and INES CHAVEZ, defendants-appellants.
Defendants further averred having no knowledge or information of the
Appeal from a judgment on the pleadings rendered by the Court of First allegations of paragraph 8 of the complaint concerning the attorneys'
Instance of Manila on June 8, 1959 in its Case No. 39822, and certified by fees; denied having performed any act of removal or disposal of its
the Court of Appeals to this Court on the ground that only questions of law
property, branding plaintiff's allegations in paragraph 9 to be false and
are involved.
malicious; and prayed for dismissal of the complaint.

The record shows that on April 8, 1959, plaintiff Gregorio Apelario filed a
Upon motion of the plaintiff, and over the objection of defendants, the trial
complaint against Ines Chavez & Company, Ltd., a limited partnership,
court rendered judgment on the pleadings, sentencing defendants to pay
and its general partner, Ines Chavez. It was therein averred, in
P2,400, plus legal interest from the filing of the complaint; and P500
substance, that on or about October 28, 1958, the defendant partnership
attorney's fees.
had purchased on credit from plaintiff ten sets of axle assemblies for the
sum of P2,400.00 (par. 3); that on December 6, 1958, defendant
Defendants appealed, and now claim that it was error for the lower court
delivered in payment to the plaintiff two postdated cash checks for
to have rendered judgment on the pleadings, because the answer raised
P1,200.00 each, drawn against the Philippine Bank of Commerce (par.
material issues.
4); that when the checks were presented for payment, they were
dishonored for lack of funds, whereupon the defendant took back the
checks and replaced them with two other checks, also postdated, for the We find no merit in the appeal. As pointed out in the judgment
same amount as before (par. 5); that these checks were also dishonored complained of the defendants-appellants had admitted all the material
(par. 6); that the plaintiff, on February 23, 1959, demanded payment in allegations of the complaint concerning the existence of the debt and its
cash, but defendant refused to pay (par. 7); that because of such non-payment. The pleaded excuse, that they had requested plaintiff to
malicious and wilfull refusal, plaintiff had to engage the services of wait because appellants' many accounts receivable had not yet been
counsel for an agreed fee of P750.00 (par. 8); that defendant was about collected, is clearly no defense, for a debtor can not delay payment due
to remove and dispose of its properties with intent to defraud the plaintiff, just to suit its convenience, and the creditor is not an underwriter of his
wherefore a writ of attachment became necessary (par. 9); and prayer debtor's business unless so stipulated.
was made for judgment in favor of plaintiff and against the defendant for
the sum of P2,400.00, with legal interest from the filing of the complaint, The denial of the averment concerning the stipulated fees of plaintiff's
and for P750.00 attorney's fees, with expenses and costs. Plaintiff also attorney tendered no genuine issue, for even without such allegations, it
moved and duly obtained a writ of attachment. was discretionary in the court to allow reasonable attorneys' fees by way
of damages, if it found just and equitable to allow their recovery (Civ.
Defendants obtained the lifting of the attachment by filing a counterbond Code, Art. 2208). In this case, allowance of such fees was justified since
on April 14, 1959; and on May 7, 1959, they filed an answer admitting the defendant admitted having issued to the creditor checks without funds,
allegations of paragraphs 1 and 6 of the complaint, admitting that plaintiff not once but twice. It is well to note the P750 attorney's fees claimed by
had demanded payment of P2,400, but pleaded that plaintiff were reduced to P500 only.

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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
Nor does the denial of the complaint's averments concerning the DEFENDANT through counsel alleges:
fraudulent removal and disposition of defendant's property constitute a
bar to a judgment on the pleadings, since the defendant neither claimed 1. Paragraph 1 of the complaint is admitted.
nor asked for any damages on account of the issuance and levy of the
writ of attachment. 2. Paragraphs 2, 3, 4, 5, 6 and 7 of the complaint are specifically
denied for lack of knowledge sufficient to form a belief as to the
WHEREFORE, the appealed judgment of the Court of First Instance is truth thereof.
affirmed. Costs against appellant
WHEREFORE, it is respectfully prayed that the Complaint be
G.R. No. L-28140 March 19, 1970 dismissed with costs against the plaintiff.
CAPITOL MOTORS CORPORATIONS, plaintiff-appellee, vs. NEMESIO
I. YABUT, defendant-appellant. On June 16, 1966, the plaintiff filed a motion for judgment on the
pleadings, on the ground that the defendant, not having set forth in his
Appeal on a question of law from the judgment of the Court of First answer the substance of the matters relied upon by him to support his
Instance of Rizal in its Civil Case. No. Q-9869. denial, had failed to deny specifically the material allegations of the
complaint, hence, must be deemed to have admitted them. The
On March 1, 1966, Capitol Motors Corporations filed a complaint against defendant did not file an opposition to the motion. On September 13,
Nemesio I. Yabut. It was therein averred that on April 24, 1965, the 1966, after hearing on the motion, the court issued an order granting the
defendant executed in favor of the plaintiff a promissory note (copy of said motion and considering the case submitted for decision on the basis
which was attached to the complaint) for the sum of P30,134.25, payable of the pleadings; and on January 9, 1967, the court rendered judgment
in eighteen (18) equal monthly installments with interest at 12% per granting in toto the plaintiff's prayer in its complaint.
annum, the first installment to become due on June 10, 1965, that it was
stipulated in the promissory note that should the defendant fail to pay two In this appeal, defendant-appellant contends that the court a quo erred in
(2) successive installments, the principal sum remaining unpaid would considering him as having failed to deny specifically the material
immediately become due and demandable and the defendant would, by allegations of the complaint, and, consequently, in deciding the case on
way of attorney's fees and costs of collection, be obligated to the plaintiff the basis of the pleadings. Citing Moran, Comments on the Rules of
for an additional sum equivalent to 25% of the principal and interest due; Court, Vol. I, 1963 Ed., p. 281, he argues that since Section 10, Rule 8 of
that as of February 23, 1966, the sum remaining unpaid on the the Revised Rules of Court, recognizes three (3) modes of specific
promissory note was P30,754.79, including accrued interest; that the denial, namely: (1) by specifying each material allegation of fact in the
defendant defaulted in the payment of two (2) successive installments, complaint the truth of which the defendant does not admit, and, whenever
and likewise failed to pay the interest due on the promissory note; and practicable, setting forth the substance of the matters which he will rely
that in spite of demands by the plaintiff, the defendant failed and refused upon to support his denial or (2) by specifying so much of an averment in
to pay the said principal sum and interest due. Prayer was made that the the complaint as is true and material and denying only the remainder or
defendant be ordered to pay the plaintiff the sum of P30,754.79, as well (3) by stating that the defendant is without knowledge or information
as the interest due thereon from February 23, 1966, and an additional sufficient to form a belief as to the truth of a material averment in the
sum equivalent to 25% of the amount due, plus costs. complaint, which has the effect of a denial, and he has adopted the third
mode of specific denial, his answer tendered an issue, and, consequently
On April 27, 1966, and within the reglementary period, the defendant, the court a quo could not render a valid judgment on the pleadings.
through his counsel, filed an answer which reads:
This appeal is without merit.

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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
We agree with defendant-appellant that one of the modes of specific Furthermore, in his answer to the appellee's complaint, he merely
denial contemplated in Section 10, Rule 8, is a denial by stating that the alleged that 'he has no knowledge or information sufficient to form
defendant is without knowledge or information sufficient to form a belief a belief as to the truth of the matters contained in paragraphs 3,
as to the truth of a material averment in the complaint. The question, 4, 5 and 6 so much so that he denies specifically said
however, is whether paragraph 2 of defendant-appellant's answer allegations.' A denial is not specific simply because it is so
constitutes a specific denial under the said rule. We do not think so. qualified. (Sections 6 and 7, Rule 9; El Hogar Filipino vs. Santos
In Warner Barnes & Co., Ltd. vs. Reyes, et al., G.R. No. L-9531, May 14, Investments, Inc., 74 Phil. 79; Baetamo vs. Amador, 74 Phil. 735;
1958 (103 Phil., 662), this Court said that the rule authorizing an answer Dacanay vs. Lucero, 76 Phil. 139; Lagrimas vs. Lagrimas, 95
to the effect that the defendant has no knowledge or information sufficient Phil. 113). Material averments in a complaint, other than those as
to form a belief as to the truth of an averment and giving such answer the to the amount of damage, are deemed admitted when not
effect of a denial, does not apply where the fact as to which want of specifically denied. (Section 8, Rule 9,) The court may render
knowledge is asserted, is so plainly and necessarily within the judgment upon the pleadings if material averments in the
defendant's knowledge that his averment of ignorance must be palpably complaint are admitted. (Section 10, Rule 35; Baetamo vs.
untrue. In said case the suit was one for foreclosure of mortgage, and a Amador, supra, Lichauco vs. Guash, 76 Phil. 5; Lati vs. Valmores,
copy of the deed of mortgage was attached to the complaint; thus, G.R. No. L-6877, 30 March 1954.)
according to this Court, it would have been easy for the defendants to
specifically allege in their answer whether or not they had executed the It becomes evident from all the above doctrines that a mere allegation of
alleged mortgage. The same thing can be said in the present case, where ignorance of the facts alleged in the complaint, is insufficient to raise an
a copy of the promissory note sued upon was attached to the complaint. issue; the defendant must aver positively or state how it is that he is
The doctrine in Warner Barnes & Co., Ltd. was reiterated in J. P. Juan & ignorant of the facts so alleged. (Francisco, The Revised Rules of Court
Sons, Inc. vs. Lianga Industries, Inc., G.R. No. L-25137, July 28, 1969 in the Philippines, Vol. I, p. 417, citing Wood vs. Staniels, 3 Code Rep.
(28 SCRA 807). And in Sy-quia vs. Marsman, G.R. No. L-23426, March 152 and Vassalt vs. Austin, 32 Cal. 597.)
1, 1968 (22 SCRA 927), this Court said:
Thus, in at least two (2) cases where this Court ruled that judgment on
With regard to the plea of lack of knowledge or information set up the pleadings was not proper, it will be seen that the reason was that in
in paragraph 3 of the answer, this Court's decision in Warner each case the defendants did something more than merely alleging lack
Barnes vs. Reyes, 103 Phil. 662, 665, is authority for the of knowledge or information sufficient to form a belief. In Arrojo vs.
proposition that this form of denial must be availed of with Caldoza, et al., G.R. No. L-17454, July 31, 1963 (8 SCRA 547), the
sincerity and good faith, not for the purpose of confusing the other defendants, in their answer to the complaint for recovery of possession of
party, nor for purposes of delay. Yet, so lacking in sincerity and a parcel of land, did not merely allege that they had no knowledge or
good faith is this part of the answer that defendants-appellants go information sufficient to form a belief as to the truth of the material
to the limit of denying knowledge or information as to whether allegations in the complaint, but added the following: "The truth of the
they (defendants) were in the premises (Marsman Bldg.) on matter is that the defendants have not occupied or taken any property
January 4, 1961, as averred in paragraph 4 of the complaint. Yet belonging to the plaintiff. They took possession and ownership only of the
whether such a fact was or was not true could not be unknown to land belonging to them, which properties were possessed and owned
these defendants. originally by their predecessors-in-interest, who were the parents of the
defendants ...." In Benavides vs. Alabastro, G.R. No. L-19762, December
In National Marketing Corporation vs. De Castro, 106 Phil. 803 (1959), 23, 1964 (12 SCRA 553), the defendant's answer did not only deny the
this Court held: material allegations of the complaints but also set up certain special and
affirmative defenses the nature of which called for presentation of
evidence.
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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
There are two other reasons why the present appeal must fail. First. The
present action is founded upon a written instrument attached to the
complaint, but defendant-appellant failed to deny under oath the
genuineness and due execution of the instrument; hence, the same are
deemed admitted. (Section 8, Rule 8 of the Revised Rules of Court;
Songo vs. Sellner, 37 Phil. 254; Philippine Commercial & Industrial Bank
vs. ELRO Development Corporation, et al., G.R. No. L-30830, August 22,
1969 [29, SCRA 38]; J. P. Juan & Sons, Inc. vs. Lianga Industries,
Inc., supra.) Second. Defendant-appellant did not oppose the motion for
judgment on the pleadings filed by plaintiff appellee; neither has he filed a
motion for reconsideration of the order of September 13, 1966, which
deemed the case submitted for decision on the pleadings, or of the
decision rendered on January 9, 1967. In Santiago vs. Basilan Lumber
Company, G.R. No. L-15532, October 31, 1963 (9 SCRA 349), this Court
said:

It appears that when the plaintiff moved to have the case decided
on the pleadings, the defendant interposed no objection and has
practically assented thereto. The defendant, therefore, is deemed
to have admitted the allegations of the complaint, so that there
was no necessity for the plaintiff to submit evidence of his claim.

PREMISES CONSIDERED, the judgment appealed from is affirmed, with


cost against defendant-appellant.

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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
G.R. No. L-10884 March 31, 1959 charges due thereon; that because of the failure and refusal of the
PHILIPPINE NATIONAL BANK, plaintiff-appellee, vs. PHILIPPINE defendants to pay their obligation, the plaintiff delivered the documents of
LEATHER CO. INC., ET AL., defendants-appellants. the shipment to the Luzon Brokerage Co., and requested it to claim and
store the shipment in its bonded warehouse, for which service and
In its complaint filed in the Court of First Instance of Manila, the plaintiff storage the defendants are liable to the Luzon Brokerage Co.; that as of
alleges that on 1 September 1952 the defendant Philippine Leather Co., 15 October 1953; the outstanding balance of the defendants on the draft
Inc. applied for a commercial letter of credit in the sum of $14,814.80, in is P4,503.05, Philippine currency, plus interest thereon at the rate of
U.S. currency, under the terms and conditions set forth in an application P.083569 daily until fully paid.
filed by the defendants in favor of the Turner Tanning Machinery Co. of
Peabody, Massachusetts, U.S.A. to cover the full invoice value of certain The plaintiff prays that after hearing judgment be rendered ordering the
machineries and their accessories; that on 3 October 1952 the plaintiff defendants to pay it the sum of P22,787.79, with daily interest thereon at
approved the application "subject to 30% deposit and the joint and the rate of P4.89135 from 15 October 1953 until fully paid; 10% of the
several signatures of Mr. Isidoro Tinoco and Mrs. Soledad L. Basa" which said amount as attorney's fee; P4,503.05, with daily interest thereon at
conditions were complied with; that on 8 October 1952, the plaintiffs the rate of P0.83569 from 15 October 1953 until fully paid; the amount of
issued Letter of Credit No. 51469 in favor of the Turner Tanning storage and other charges that the Luzon Brokerage Co., would charge
Machinery Company; that on 15 November 1952 the Turner Tanning the plaintiff for the handling and storage of the merchandise imported by
Machinery Co., drew upon the letter of credit the sum of $14,549.17, U.S. the defendants under Letter of Credit No. 53753; and the costs of the
currency; that upon arrival in the Philippines of the machineries and their suit. The plaintiff further prays that pending hearing and final judgment, a
accessories imported by the defendants under a trust receipt, that on 23 writ of attachment be issued commanding the Sheriff of the City of Manila
January 1953 the plaintiff presented to the defendants for payment the to levy upon attachment on the properties of the defendants as security
draft drawn by the Turner Tanning Machinery Co., upon Letter of Credit for the satisfaction of any judgment that it may secure against them.
No. 51469 which was accepted by them; that after the draft had matured
on 23 April 1953 the plaintiff made numerous demands upon the In their answer filed on 28 December 1953 the defendants admit the
defendants to pay the amount of the draft and the charges due thereon plaintiff's averments except as to the correctness of the amounts due on
but the defendants failed and refused to pay; and that as of 15 October the two drafts, the correctness of which they were still checking, and for
1953, the outstanding balance of the defendants on the draft is that reason lacking sufficient knowledge or information to form a belief as
P22,787.79, Philippine currency, plus interest thereon at the rate of to the truth and veracity of the amounts due on the two drafts, they deny
P4.89135 daily until fully paid. It alleges further that on 30 January 1953 the amounts claimed by the plaintiff to be due from them.
the defendant Philippine leather Co., Inc., applied for a commercial letter
of credit in the sum of $2,587.50, U.S. currency, under the terms and On 25 June 1954 the plaintiff filed a motion for summary judgment on the
conditions set forth in an application filed by the defendants in favor of ground that since the defendants had admitted the material averments of
Bay State Chemical Co., of Boston, Massachusetts, U.S.A., to pay for the its complaint except as to the correctness of the amounts due, the
importation of color dye; that the plaintiff approved the application defendant's answer did not tender a genuine issue. The plaintiff attached
"subject to 30% deposit and the joint and several signatures of Mr. Isidoro to its motion an affidavit subscribed and sworn to by Ceferino Saavedra,
Tinoco and Mrs. Soledad L. Basa," which conditions were complied with; Manager of the Special Assets Department of the plaintiff, in charge of all
that thereafter the plaintiff issued Letter of Credit No. 53753 in favor of outstanding accounts of its debtors, stating the payments made by the
the Bay State chemical Co., that on 12 March 1953 the Bay State defendants on their account and the exact total amount due from them.
Chemical Co., drew upon the letter of credit the sum of $2,482.40, U.S.
currency; that the draft drawn by the Bay State Chemical Co., was On 7 October 1954 the Court granted the plaintiff's motion and rendered
presented by the plaintiff to the defendants for payment; that the judgment ordering the defendants, jointly and severally, to pay
defendants failed and refused to pay the amount of the draft and the
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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
. . . the plaintiff in the first cause of action, the amount of . . . are still checking on the correctness of the alleged balance
P22,787.79, with a daily interest of P4.89135 from October 15, outstanding against them and in favor of the plaintiff;
1953 up to full payment thereof, and 10% of the amount due for consequently, for lack of knowledge or information sufficient to
attorney's fees. On the second cause of action, defendants shall form a belief as to the truth and veracity of the averments
pay, jointly and severally, the sum of P4,503.05, with a daily embodied in paragraph 7 thereof, they hereby specifically deny
interest of P0.83569 from October 15, 1953 until full payment the allegations therein stated;
thereof.
and that so to the second cause of action they
Defendants shall also pay the costs.
. . . are checking on the veracity and correctness of the balance
The defendants appealed to the Court of Appeals. The latter certified the allegedly outstanding in favor of the plaintiff manifested in
case to this Court for the reason that only questions of law are raised. paragraph 6 of the same, they, by virtue thereof, specifically deny
it for lack of knowledge and belief as to the truth of the allegations
Rule 36 provides: embodied in the aforestated paragraph.

Section 1. Summary judgment for claimant. A party seeking to does not tender a genuine issue. In fact they admit that they are indebted
recover upon a claim, counterclaim, or crossclaim or to obtain a to the plaintiff. As the affidavit subscribed and sworn to by the Manager of
declaratory relief may, at any time after the pleading in answer the Special Assets Department of the plaintiff, in charge of all outstanding
thereto has been served, move with affidavits for a summary accounts of its debtors, attached to the motion for summary judgment,
judgment in his favor upon all or any part thereof. furnishes the Court with the payments made by the defendants on their
account and the amount due from them, which they failed to oppose by
SEC. 3. Motion and proceedings thereon. The motion shall be counter affidavits, the plaintiff is entitled to summary judgment. 1
served at least ten days before the time specified for the hearing.
The adverse party prior to the day of hearing may serve opposing The judgment appealed from is affirmed, with costs against the
affidavits. The judgment sought shall be rendered forthwith if the appellants.
pleadings, depositions, and admissions or file, together with the
affidavits, show that, except as to the amount of damages, there
is no genuine issue as to any of the material fact and that the
moving party is entitled to a judgment as a matter of law.

SEC. 5. Form of affidavits. Supporting and opposing affidavits


shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein. Sworn or certified copies of all papers of parts thereof
referred to in an affidavit shall be attached thereto or served
therewith.

The defendant's answer that as to the first cause of action they

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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
G.R. No. L-49668 November 14, 1989 19, 1974, neither the defendants nor counsel appeared. Accordingly, the
POLICARPIO, LUCIO, JULIAN, CATALINO, BONIFACIO, CONRADA, court granted a trial ex parte on motion of plaintiffs counsel (Rollo, p. 24).
DOMINGO, PAQUITA, AND LILIA, ALL SURNAMED
GALICIA, petitioners, vs. THE HON. WENCESLAO M. POLO, in his Subsequently, the municipal trial court rendered judgment against
capacity as Presiding Judge, CFI, Branch V, Samar (Calbayog City), defendants (petitioners herein), the dispositive portion of which reads:
ZOSIMA PALAJOS, TITING LISTOJAS, ALFREDO PALAJOS,
MANUELITO ROSIALDA, respondents. WHEREFORE, this Court hereby renders judgment ordering
defendants Policarpio Galicia, Perfecto Galicia, Victorio Galicia,
This is a petition for review on certiorari seeking to set aside the Julian Galicia and Eduarda Galicia to restore to plaintiff Amancio
summary judgment entered by the then Court of First Instance of Samar, Palajos the portion of land described in par. 4 of the plaintiffs
Br. V in Civil Case No. 758-CC entitled, "Policarpio, Lucio, Julian, complaint consisting of one and one-half hectares and which is
Catalino, Bonifacio, Conrada, Domingo, Paquita and Lilia, all surnamed the northeastern portion of land under Tax Dec. No. 8547 as
Galicia v. Zosima Palajos, Titing Listojas, Alfredo Palajos and Manuelito described in paragraph 2 thereof, ordering the defendants to pay
Rosialda" and to order the trial court to try the above-cited case on the to plaintiff a monthly rental in the amount of FIFTY PESOS (P
merits. 50.00) on the premises in question for its use and occupation
from September, 1973, up to the time when said premises is
The facts are undisputed. finally restored to the plaintiff, and to pay the costs. SO
ORDERED.
On December 15, 1973. a complaint for forcible entry (Civil Case No. 56)
entitled "Amancio Palajos v. Policarpio, Perfecto, Victorio Julian and On September 28, 1974, defendants filed a motion for reconsideration
Eduardo, all surnamed Galicia," was filed in the Municipal Court of and to grant a new trial but was denied in an Order dated October 24,
Almagro, Samar, alleging that Amancio Palajos is the owner and in actual 1974 (Rollo, p. 28).
possession of a parcel of land located at Bacjao, Almagro, Samar, more
particularly described as follows: On November 12, 1974, defendants filed a notice of appeal but the same
was likewise denied by the trial court on the ground that it was filed
A parcel of land with an area of about 4-88-00 hectares, more or beyond the reglementary period of fifteen (15) days to perfect an appeal.
less, assessed at P 360.00 as per Tax Declaration No. 8547 in
the name of Juan Palajos, it is, however, 14.2860 hectares as per For failure of the defendants to pay the rentals adjudged in the forcible
approved survey plan, the boundaries of which are: N Pedro entry case (CC No. 56), a writ of execution was issued and after levy, the
Galicia and the Poblacion of Barrio Bacjao; S Emilio Carpon, deputy sheriff of Calbayog City, on August 4, 1976, sold at public auction
Magno Suico and Teresa Subito; and W Bernardo Ballarante the real property owned by petitioners' deceased father adjoining the land
and Cenon S. Aguilar. subject of the forcible entry case more particularly described as follows:

which he acquired by way of donation from his father, Juan Palajos. It is A piece of real estate consisting of coconut and cornland situated
further alleged that defendants (petitioners herein) forcibly entered the at Bo. Bacjao, Almagro, Samar, Philippines, bounded on the
northeastern portion of the said property covering an area of about 1 1/2 NORTH, by Isabelo Palajos; on the SOUTH, by Narciso Pajalino;
hectares. and on the WEST, by Seashore, containing an area of 2-60-00
hectares, more or less assessed at P180.00, under Tax
The trial of the case was set several times but was postponed at the Declaration No. 12048, in the name of Pedro Galicia (deceased);
instance of defendants (petitioners herein). For the fifth time, i.e., on July (Rollo, p. 30).

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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
On October 10, 1977, or over 14 months after the execution sale, Defendants' (private respondents herein) motion for summary judgment
petitioners filed a complaint for Ownership and Damages against herein was filed on July 7, 1978 (Rollo, p. 43) alleging that no genuine issue
respondents in the then Court of First Instance of Samar, 13th Judicial exists in the case at bar after the pre-trial was conducted and admission
District, Br. V, docketed as Civil Case No. 758-CC, alleging that they are of facts were had (Rollo, p. 44), while plaintiffs (petitioners herein) filed
co-owners of a certain parcel of agricultural land (subject of the auction their opposition to the motion for summary judgment dated July 17, 1978
sale) which they inherited from their deceased father, Pedro Galicia, alleging among others, that genuine issues exist (Rollo, pp. 45-47).
more particularly described as follows:
On August 11, 1978, the court a quo rendered the assailed summary
A parcel of coconut and corn land located at Bacjao, Almagro, judgment dismissing petitioners' complaint (Rollo, p. 48-53), the pertinent
Samar, Philippines, with an area of 26,000 sq. m. and bounded portion of which reads:
on the NORTH, by Isabelo Palajos; SOUTH, by Narciso Pauline;
EAST, by Benedicto Paulino and WEST, by Seashore covered by As demonstrated by the parties, there is no question that the land
Tax Declaration No. 12048 in the name of Pedro Galicia. in dispute is that parcel described in paragraph 3 of the
complaint, a portion of which was a subject in a forcible entry
The complaint further alleged that pursuant to Civil Case No. 56 (forcible case before the Municipal Trial Court of Almagro Samar (Exhibit
entry case), respondents were able to take possession of the land in 1, 2 and 3) with the defendants now as sucessors-in-interest of
question as said case was heard ex-parte; and that a decision was the plaintiff, and most of the herein plaintiffs as defendants.
rendered in respondents' favor and said decision was executed sometime
in 1976 (Rollo, p. 36-37). The pleadings also show that upon the death of the primitive
owner, Pedro Galicia, the plaintiffs as children and grandchildren
In their Answer, respondents (defendants below) countered that they possessed and owned this land pro-indiviso, until the possession
were able to take possession of the land described in the complaint by of said portion was transferred to the defendants when the
virtue of the decision and later, execution of the decision in the forcible decision in that forcible entry case was executed in 1976 (Exhibit
entry case, which, by petitioners' (plaintiffs below) averment in their 7) such being the case, therefore, with respect to this portion of
complaint is an admission of an existing judgment that would the land in dispute, the possession is settled, which would
constitute res judicata; that they are the lawful owners of the disputed constitute as a bar to this action.
land the same having been subjected to levy and execution in 1975 thru
a sale in favor of respondents' predecessor-in-interest, Juan Palajos. xxx xxx xxx

The issues having been enjoined, the case was set for pre-trial by With respect to the other portion of the land in dispute, the
respondent judge Hon. Wenceslao M. Polo. At the pre-trial, counsel for plaintiffs admit that possession was transferred to the defendant
private respondents moved for time within which to file a motion for by virtue of a sale executed by the sheriff; the one year period
summary judgment which was granted by respondent judge in his order having elapsed without exercising their right of redemption, as a
dated June 28, 1978. result a final deed of sale was issued. The legality of the sale not
having been assailed by them, for all intents and purposes,
ownership on this land have been vested on the defendants as
heirs of Juan Palajos.

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CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
WHEREFORE, premises above considered, judgment is hereby merits. Among other things, petitioners contend that the execution sale
rendered ordering the dismissal of the plaintiffs' complaint, conducted by the Deputy Provincial Sheriff was null and void and would
without pronouncement as to cost." have merited a trial on the merits. Moreover, it is further contended that
as between Civil Case No. 56 and Civil Case No. 758-CC, there can be
A motion to re-open the case for trial on the merits was filed by plaintiffs no res judicata, considering that there is no Identity of parties, cause of
but was denied in an order dated November 27, 1978 (Rollo, p. 62). action and subject matter between the two actions.
Hence, this instant petition.
After a thorough review of the records, the Court finds no cogent reason
Petitioners contend that the trial court erred when it decided Civil Case to disturb the summary judgment rendered by respondent judge.
No. 758-CC by summary judgment when there are several genuine
issues involved therein which require a trial of these issues on the merits, The Rules of Court authorizes the rendition of summary judgment if the
such as: pleadings, depositions and admissions on file together with the affidavits,
show that, except as to the amount of damages, there is no issue as to
(A) WAS THE EXECUTION SALE CONDUCTED BY DEPUTY any material fact and that the moving party is entitled to a judgment as a
PROVINCIAL SHERIFF EUFROCINO T. OLIFERNES OF LOT matter of law (Sec. 3, Rule 34). Conversely, summary judgment is not
NO. 1363 OF THE LATE PEDRO GALICIA, PETITIONERS' proper where the pleadings tender vital issues the resolution of which call
FATHER, VALID TO CONFER UPON THE DEFENDANTS IN for the presentation of evidence (Villanueva v. NAMARCO, 28 SCRA 729
SAID CASE A JUST TITLE OVER SAID REALTY? [1969]; Guevarra, et al., v. CA, et al., 124 SCRA 297 [1983]).

(B) WERE THE UNDIVIDED SHARES AND PARTICIPATIONS Summary judgment "is a device for weeding out sham claims or defenses
OF JULIAN GALICIA AND CATALINO GALICIA WHO WERE at an early stage of the litigation, thereby avoiding the expense and loss
TWO OF THE LEGITIMATE CHILDREN OF PEDRO GALICIA of time involved in a trial. The very object is 'to separate what is formal or
NOT IMPLEADED AS PARTIES IN CIVIL CASE NO. 56 IN THE pretended in denial or averment from what is genuine and substantial, so
MUNICIPAL COURT OF ALMAGRO OVER LOT NO. 1363, that only the latter may subject a suitor to the burden of trial.' The test,
AFFECTED BY THAT EXECUTION SALE? therefore, of a motion for summary judgment is-whether the pleadings,
affidavits, and exhibits in support of the motion are sufficient to overcome
(C) WERE THE UNDIVIDED SHARES AND PARTICIPATIONS the opposing papers and to justify a finding as a matter of law that there
OF EDUARDA GALICIA AND PERFECTO GALICIA OVER LOT is no defense to the action or the claim is clearly meritorious" (Estrada v.
NO. 1363, BUT WHO WERE NOT IMPLEADED AS PARTIES IN Hon. Consolacion, et al., 71 SCRA 523 [1976]).
CIVIL CASE NO. 758-CC OF THE COURT OF FIRST INSTANCE
OF SAMAR (CALBAYOG CITY) AFFECTED BY THE DECISION In addition, summary judgment is one of the methods sanctioned in the
OF THE LATTER COURT OF SUMMARY JUDGMENT? (Rollo, present Rules of Court for a prompt disposition of civil actions wherein
p. 10). there exists no serious controversy. The procedure may be availed of not
only by claimants, but also by defending parties who may be the object of
The crucial issue in this case is whether or not the trial court erred when unfounded claims. A motion for summary judgment assumes that
it decided Civil Case No. 758-CC by summary judgment. scrutinizing the facts will disclose that the issues presented by the
pleadings need not be tried because they are so patently unsubstantial
It is the contention of petitioners that the trial court erred in deciding their as not to be genuine issues, or that there is no genuine issue as to any
complaint (CC No. 758-CC) by summary judgment when there are material facts or where the facts appear undisputed and certain from the
several genuine issues involved therein which require a full trial on the pleadings, depositions, admissions and affidavits (Singleton v. Philippine

9
CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
Trust Co., 99 Phil, 91 [1956], cited in Bayang v. CA, 148 SCRA 91 the same for the purpose of determining the propriety of the summary
[1987]). judgment. Objections to the execution sale cannot be considered in the
Supreme Court inasmuch as it was not raised in the lower court (Ramiro
Examining petitioners' complaint, the Court finds that the disputed v. Grano 54 Phil. 744 [1930]; citing Tan Machan v. de la Trinidad, 3 Phil.
property is the same parcel of land, which adjoins private respondents' lot 684 [1904] and U.S. v. Inductive, 40 Phil. 84 [1919]).
which was the subject of the forcible entry case and from which
petitioners were ordered to vacate. When petitioners (then defendants), WHEREFORE, the instant petition is hereby DENIED for lack of merit.
failed to satisfy the rentals adjudged in the forcible entry case, said Costs against petitioners.
adjoining parcel of land was sold at public auction to Juan Palajos
(respondents' predecessor-in-interest) as the higher bidder in the SO ORDERED.
execution sale to satisfy the monetary judgment rendered therein. The
property so described in petitioners' complaint (Rollo, p. 36) squarely fits
what has been levied upon and sold at public auction (Rollo, p. 30), the
owners of which are now private respondents upon the demise of their
predecessor-in-interest.

There is thus no question that issue of ownership of the disputed land


subject of the present petition has long been foreclosed in the forcible
entry case which culminated in the public auction sale of the parcel of
land now sought to be recovered. Having failed to redeem the property
sold at the public auction sale within the reglementary period of twelve
(12) months (Sec. 30, Rule 39 of the Rules of Court), petitioners cannot
now claim that they still own said property. Petitioners' complaint for
Ownership and Damages is but a belated and disguised attempt to revive
a judgment debtors' right of redemption which has long expired. There
being no issue as to any material fact raised in the pleadings, summary
judgment may be rendered.

Neither can the issue of the validity of the execution sale help petitioners'
cause. Well-settled in this jurisdiction, is the rule that issues not raised
and/or ventilated in the lower court cannot be raised for the first time on
appeal (Rebodos v. WCC, 6 SCRA 717 [1962]; DBP v. CA, 116 SCRA
636 and a long line of cases). A review of the records of the case shows
that petitioners failed to directly assail and raise as issue, the validity of
the aforementioned auction sale in their complaint. It was only when the
respondent judge noted such omission in his decision dismissing Civil
Case No. 758-CC dated August 11, 1978 (Rollo, p. 48-53) that petitioners
later filed a separate action for Annulment of Auction Sale and Damages
on October 4, 1978 (Civil Case No. 837-CC; Rollo, p. 31-35). The validity
of the execution sale not having been raised and/or litigated in the case
subject of the present appeal, the Court, at this stage, cannot pass upon
10
CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
G.R. No. 106436 December 3, 1994 4. This compromise agreement shall be a full and final settlement
VIRGILIO D. IMSON, petitioner, vs. HON. COURT OF APPEALS, of the issues between plaintiff (herein petitioner) and defendant
HOLIDAY HILLS STOCK AND BREEDING FARM CORPORATION, Western Guaranty in their complaint and answer and, from now
FNCB FINANCE CORPORATION, respondents. on, they shall have no more right against one another except the
enforcement of this compromise agreement.
The case at bench arose from a vehicular collision on December 11,
1983, involving petitioner's Toyota Corolla and a Hino diesel truck In consequence of the compromise agreement, the trial court dismissed
registered under the names of private respondents FNCB Finance the Complaint for Damages against Western Guaranty Corporation on
Corporation and Holiday Hills Stock and Breeding Farm Corporation. The June 16, 1987. 8 A copy of the Order of dismissal was received by private
collision seriously injured petitioner and totally wrecked his car. respondent Holiday Hills Stock and Breeding Farm Corporation on July 13,
1987. Nearly eighteen (18) months later, said private respondent moved to
On January 6, 1984, petitioner filed with the RTC Baguio City 1 a dismiss the case against all the other defendants. It argued that since they
Complaint for Damages 2 Sued were private respondents as registered are all indispensable parties under a common cause of action, the dismissal
owners of the truck; truck driver Felix B. Calip, Jr.; the beneficial owners of of the case against defendant insurer must result in the dismissal of the suit
the truck, Gorgonio Co Adarme, Felisa T. Co (also known as Felisa Tan), and against all of them. The trial court denied the motion.
Cirilia Chua Siok Bieng, and the truck insurer, Western Guaranty
Corporation. Private respondent Holiday Hills Stock and Breeding Farm Corporation
assailed the denial order through a Petition for Certiorari, Prohibition
The Complaint prayed that defendants be ordered to pay, jointly and and Mandamus With Restraining Order filed with respondent Court of
severally, two hundred seventy thousand pesos (P270,000.00) as Appeals. The Petition was docketed as CA-G.R. SP No. 17651. On July
compensatory damages, fifty thousand pesos (P50,000.00) each as 10, 1992, the Court of Appeals, 7 through its Special Sixth
moral and exemplary damages, and attorney's fees, litigation expenses, Division, 8 reversed the trial court, as it ruled:
and cost of suit. 8
The petitioner (herein private respondent Holiday Hills Stock and
Defendants driver and beneficial owners failed to answer and were Breeding Farm Corporation) cites the doctrine laid down in Lim Tanhu v.
declared in default. 4 On May 29, 1987, however, petitioner and defendant Hon. Ramolete, 66 SCRA 425, as applied later in Co v. Acosta, 134
insurer, entered into a compromise agreement which provided, inter alia: SCRA 185, to support its averment that the court a quo gravely abused
its discretion in refusing to dismiss the case.
1. Defendant Western Guaranty Corporation (Western Guaranty
for short) admits that its total liability under the laws and the Essentially, the doctrine adverted to essays that in a common cause of
insurance contract sued upon is P70,000.00; action where all the defendants are indispensable parties, the court's
power to act is integral and cannot be split, such that it cannot relieve any
2. In full settlement of its liability under the laws and the said of them and at the same time render judgment against the rest.
insurance contract, defendant Western Guaranty shall pay
plaintiff (herein petitioner) the amount of P70,000.00 upon the We find applicability of the doctrine to the case at bar.
signing of this compromise agreement;
A cursory reading of the complaint . . . reveals that the cause of action
3. This compromise agreement shall in no way waive nor was the alleged bad faith and gross negligence of the defendants
prejudice plaintiffs (herein petitioner's) rights to proceed against resulting in the injuries complained of and for which the action for
the other defendants with respect the remainder of his claims; damages was filed. The inclusion of Western Guaranty Corporation was
vital to the claim, it being the insurer of the diesel truck without which, the
11
CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
claim could be set for naught. Stated otherwise, it is an indispensable D. RESPONDENT COURT OF APPEALS COMMITTED A
party as the petitioner (herein private respondent stock and breeding REVERSIBLE ERROR IN RULING THAT THE DOCTRINE OF
farm corporation) . . . . Private respondent's (herein petitioner's argument ESTOPPEL AND LACHES ON MATTERS OF JURISDICTION IS
that the said insurance company was sued on a different cause of action, NOT APPLICABLE IN CIVIL CASE NO. 248-R.
i.e., its bounden duty under the insurance law to pay or settle claims
arising under its policy coverage, is untenable, for the cited law perceives There is merit to the petition,.
the existence of a just cause, and according to the answer filed by the
Western Guaranty Corporation . . . the proximate cause of the accident In the case of Lim Tanhu v. Ramolete, 66 SCRA 425, 458-459 (1975) this
was the fault of the plaintiff (herein petitioner), hence it was not liable for court held that:
damages. There is in fact a congruence of affirmative defense among the
answering defendants. . . . (I)n all instances where a common cause of action is alleged
against several defendants, some of whom answer and the
Moreover, it is undisputed that the injury caused is covered by the others do not, the latter or those in default acquire a vested right
insurance company concerned. Thus, when the said insurer settled its not only to own the defense interposed in the answer of their co-
liability with the private respondent (petitioner herein) . . . , the other defendant or co-defendants not in default but also to expect a
defendants, as the insured and indispensable parties to a common cause result of the litigation totally common with them in kind and in
of action, necessarily benefited from such settlement including the amount whether favorable or unfavorable. The substantive unity
defaulted defendants, for as stated in the aforecited cases, it is deemed of the plaintiffs cause against all the defendants is carried through
that anything done by or for the answering defendant is done by or for the to its adjective phase as ineluctably demanded by the
ones in default since it is implicit in the rule that default is in essence a homogeneity and indivisibility of justice itself. . . . The integrity of
mere formality that deprives them of no more than to take part in the trial, the common cause of action against all the defendants and the
but if the complaint is dismissed as to the answering defendant, it should indispensability of all of them in the proceedings do not permit
also be dismissed as to them. 9 (Citations omitted.) any possibility of waiver of the plaintiffs right only as to one or
some of them, without including all of them, and so, as a rule,
Petitioner now comes to this Court with the following assignments of withdrawal must be deemed to be a confession of weakness as to
error: all. . . . . Where all the defendants are indispensable parties, for
which reason the absence of any of them in the case would result
A. RESPONDENT COURT OF APPEALS COMMITTED A in the court losing its competency to act validly, any compromise
REVERSIBLE ERROR IN RULING THAT THE DEFENDANTS IN that the plaintiff might wish to make with any of them must, as a
CIVIL CASE NO. 248-R ARE INDISPENSABLE PARTIES; matter of correct procedure, have to await until after the rendition
of the judgment, at which stage the plaintiff may then treat the
B. RESPONDENT COURT OF APPEALS COMMITTED A matter of its execution and the satisfaction of his claim as variably
REVERSIBLE ERROR IN RULING THAT IN CIVIL CASE NO. as he might please. Accordingly, in the case now before Us
248-R THERE IS A COMMON CAUSE OF ACTION AGAINST together with the dismissal of the complaint against the non-
THE DEFENDANTS THEREIN; defaulted defendants, the court should have ordered also the
dismissal thereof as to petitioner (referring to the defaulting
C. RESPONDENT COURT OF APPEALS COMMITTED A defendants in the case).
REVERSIBLE ERROR IN RULING THAT IN CIVIL CASE NO.
248-R THE RULING OF THIS HONORABLE COURT IN LIM TAN In sum, Lim Tanhu states that where a complaint alleges a common
HU VS. RAMOLETE IS APPLICABLE; cause of action against defendants who are all indispensable parties to

12
CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
the case, its dismissal against any of them by virtue of a compromise Quite clearly then, Lim Tanhu will not apply to the case at bench
agreement with the plaintiff necessarily results in the dismissal of the for there is no showing that petitioner has a common cause of
case against the other defendants, including those in default. The ruling action against the defendants in Civil Case No. 248-R.
is rooted on the rationale that the court's power to act in a case involving
a common cause of action against indispensable parties "is integral and But this is not all. Defendants in Civil Case No. 248-R are not all
cannot be split such that it cannot relieve any of them and at the same indispensable parties. An indispensable party is one whose interest will
time render judgment against the rest. 10 be affected by the court's action in the litigation, and without whom no
final determination of the case can be had. The party's interest in the
For Lim Tanhu to apply to the case at bench, it must be established that: subject matter of the suit and in the relief sought are so inextricably
(1) petitioner has common cause of action against private respondents intertwined with the other parties' that his legal presence as a party to the
and the other defendants in Civil Case No. 248-R; and (2) all the proceeding is an absolute necessity. 13 In his absence there cannot be a
defendants are indispensable parties to the case. resolution of the dispute of the parties before the court which is effective,
complete, or equitable. 14
Cause of action has a fixed meaning in this jurisdiction. It is the delict or
wrong by which the right of the plaintiff is violated by the defendant. 11 The Conversely, a party is not indispensable to the suit if his interest in the
question as to whether a plaintiff has a cause of action is determined by the controversy or subject matter is distinct and divisible from the interest of
averments in the pleadings pertaining to the acts of the defendant. Whether the other parties and will not necessarily be prejudiced by a judgment
such acts give him a right of action is determined by substantive law. 12 which does complete justice to the parties in court. 15 He is not
indispensable if his presence would merely permit complete relief between
In the case at bench, it is clear that petitioner has different and separate him and those already parties to the action, or will simply avoid multiple
causes of action against the defendants in the case. The allegations in litigation. 16
the Complaint show that petitioner seeks to recover from the truck driver
for his wrong which caused injury to petitioner and his car. The cause of It is true that all of petitioner's claims in Civil Case No. 248-R is premised
action against him is based on quasi-delict under Article 2176 of the New on the wrong committed by defendant truck driver. Concededly, the truck
Civil Code. Quasi-delict, too, is the basis of the cause of action against driver is an indispensable party to the suit. The other defendants,
defendants beneficial and registered owners. But in their case, it is Article however, cannot be categorized as indispensable parties. They are
2180 of the same Code which governs the rights of the parties. merely proper parties to the case. Proper parties have been described as
parties whose presence is necessary in order to adjudicate the whole
However, with respect to defendant Western Guaranty Corporation, controversy, but whose interests are so far separable that a final decree
petitioner's cause of action is based on contract. He seeks to recover can be made in their absence without affecting them. 17 It is easy to see
from the insurer on the basis of the third party liability clause of its that if any of them had not been impleaded as defendant, the case would still
insurance contract with the owners of the truck. This is acknowledged by proceed without prejudicing the party not impleaded. Thus, if petitioner did
the second paragraph of the compromise agreement between petitioner not sue Western Guaranty Corporation, the omission would not cause the
and defendant insurer, thus: dismissal of the suit against the other defendants. Even without the insurer,
the trial court would not lose its competency to act completely and validly on
the damage suit. The insurer, clearly, is not an indispensable party in Civil
2. In full settlement of its liability under the laws and the said
Case No. 248-R.
insurance contract, defendant Western Guaranty shall pay
plaintiff (herein petitioner) the amount of P70,000.00 upon the
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision,
signing of this compromise agreement.
dated July 10, 1992, of the Court of Appeals in CA-G.R. SP No. 17651 is
REVERSED AND SET ASIDE. The Complaint in Civil Case No. 248-R is
13
CIVIL PROCEDURE CASES Judgement and Final Orders (Rule 36)
REINSTATED and REMANDED to the trial court for further proceedings.
No costs. SO ORDERED.

14