1

G.R. No. 119511 November 24, 1998

WILFREDO P. VERZOSA and PILAR MARTINEZ, petitioners,
vs.
COURT OF APPEALS, HON. NICODEMO FERRER, and FE GIRON USON, respondents.

PANGANIBAN, J .:
What constitutes the status quo ante in the application of an injunctive writ, in the event a complaint's
subsequently amended?
The Case
This is the main question raised in the present Petition for Review seeking to set aside the consolidated
January 31, 1994 Decision
1
of the Court of Appeals
2
in CA-GR SP No. 26626 and CA-GR SP No. 27300,
which dismissed the petitions in this wise:
Succinctly put, petitioners have failed to show any grave abuse of discretion, or any act without
or in excess of jurisdiction, on the part of respondent judge in issuing the assailed orders.
WHEREFORE, the instant petitions are hereby dismissed for lack of merit.
Also assailed is the public respondent's February 28, 1995 Reconsideration
3
denying the Motion for
Reconsideration.
Facts of the Case
The undisputed facts, as narrated by the Court of Appeals (CA) and reiterated by petitioners, are as follows:
4

Records reveal that Fe GironUson is the owner of a parcel of land consisting of 19,955 square
meters located at Baquioen, Sual, Pangasinan, covered by O.C.T. No. 12783. She mortgaged
the land to WilfredoVerzosa.
Fe Uson failed to pay her entire obligation to Verzosa, prompting the latter to have the mortgage
foreclosed. On July 21, 1988, the Provincial Sheriff of Pangasinan set the foreclosure sale on
August 17, 1988 at 10:00 A.M.
To prevent the Office of the Provincial Sheriff from proceeding with the foreclosure sale, Fe
Uson, on August 12, 1988, filed with the Regional Trial Court, Branch 37, Lingayen,
Pangasinan, a complaint against WilfredoVerzosa and the Provincial Sheriff, docketed as Civil
Case No. 16590, for annulment of mortgage with prayer for the issuance of a writ of preliminary
injunction.
On August 22, 1988, defendant Verzosa filed a motion to dismiss the complaint.
On June 8, 1989, the complaint was dismissed on the ground that it was not personally verified
by plaintiff Fe Uson.
On June 27, 1989, Fe Uson filed a motion for reconsideration which was granted by the court.
On June 29, 1989, she filed her amended complaint which bears the proper verification.
Meantime, Verzosa wrote the Provincial Sheriff to proceed with the foreclosure of mortgage.
Whereupon, Fe Uson, through counsel, wrote the Provincial Sheriff requesting him to
discontinue the foreclosure sale in deference to "the said pending case and to the action to be
taken by the Honorable Presiding Judge of the Court.
On July 4, 1989, the foreclosure sale was conducted by the sheriff. The property was sold to
Verzosa being the highest bidder. Thereafter, the Sheriff's Certificate of Sale was approved by
Executive Judge Antonio Belen and issued to Verzosa.
On September 5, 1989, the trial court issued an order admitting the amended complaint of Fe
Uson.
At this point, Verzosa filed with the Court of Appeals CA-G.R. SP No. 18898 for certiorari. He
alleged that the said order, admitting the amended complaint was issued with grave abuse of
discretion.
On June 20, 1990, the Sheriffs Certificate of Sale was registered in the Registry of Deeds of
Alaminos, Pangasinan.
On July 5, 1990, or after the expiration of the redemption period of one year, the defendant
Sheriff issued the Sheriff's Final Deed of Sale. Thus, O.C.T. No. 12783 in Fe Uson's name was
cancelled and in lieu thereof, T.C.T. No. 11087 was issued in the name of WilfredoVerzosa.
On July 12, 1990, Verzosa sold the land to Pilar Martinez. As a result, Verzosa's T.C.T. No.
11087 was cancelled and T.C.T. No. 11107 was issued to Martinez.
Meantime, on October 16, 1990, or after one year from the filing of Verzosa's petition for
certiorari with the Court of Appeals, the said court dismissed the petition, thus sustaining the
2

validity of respondent court's order dated September 5, 1989 admitting Fe Uson's amended
complaint.
On May 20, 1991, Fe Uson filed her second amended complaint impleading as additional
defendants the Register of Deeds of Alaminos, Pangasinan and Pilar Martinez and praying,
among others, the annulment of the latter's title T.C.T. No. 11107.
On August 20, 1991, upon Uson's application for preliminary injunction embodied in her Second
Amended Complaint (which was opposed by Verzosa and Martinez), respondent court issued
an order directing the latter to cease and desist from entering, making constructions and
performing any act of possession or ownership over the land in question covered by O.C.T. No.
12783, upon posting by plaintiff Uson of a bond of P10,000.00.
Defendant Martinez filed a motion for consideration which was denied on September 18, 1991.
On October 30, 1991, after hearing and upon posting of a bond in the amount of P10,000.00 by
Uson, respondent Judge issued an order directing defendants Verzosa and Martinez and/or any
and other persons acting under their command to desist and cease from entering, intruding and
making constructions on the land covered by O.C.T. No. 12783.
On November 22, 1991, respondent judge, acting on Verzosa's motion for clarification of the
order dated September 18, 1991, issued an order to the effect that the status quo being
maintained is the possession of plaintiff Fe Uson of the land and that such status quo does not
refer to defendant Pilar Martinez being the registered owner of T.C.T. No. 11107.
It should be noted that the Complaint alleged that Private Respondent Uson mortgaged the property to
Verzosa for P25,000, and that the remaining, unpaid balance was P915.75, an amount she was willing to
consign to the trial court.
5

Petitioners challenged by certiorari the two orders of the trial court. Because the CA dismissed their petition,
petitioners availed themselves of the present recourse.
6

Public Respondent's Ruling
In dismissing the petition for certiorari, the Court of Appeals held that "the last peaceable uncontested status
that preceded the controversy [was] that point . . . when private respondent Fe Uson was the registered owner
of the land in dispute mortgaged to petitioner Verzosa. As owner of this property, Fe Uson has every right to
protect her rights as such. Clearly, the issuance of the writ would certainly preserve that status quo."
7

In debunking petitioners' theory that the status quo referred to the period when Martinez had already
purchased the property from Verzosa, the Court of Appeals held that "the property was registered in her name
two years after the start of the controversy, or when private respondent filed her complaint against Verzosa."
8

Thus, the CA sustained the following findings of the trial court:
9

For as long as the instant case (Civil Case No. 16590) remains pending, no act of the
defendants subsequent to the filing of this case can make TCT No. 11107 in the name of
defendant Pilar Martinez, and the alleged possession of the latter of the property in question,
valid and be considered the status quo."
Issues
Petitioners raise the following issues for the consideration of the Court:
10

I The Court of Appeals erred in not taking into account or dealing squarely with the nature,
effects and proper interpretation and/or application of the doctrine on amendment of
pleadings/complaints to the instant case.
II The Court of Appeals erred when it concurred with the Respondent judge that the status quo
should be reckoned at the time of the filing of the original complaint.
III The Court of Appeals erred when it completely disregarded the legal implications and effects
of foreclosure, foreclosure sale, expiration of the redemption period, the consolidation of
ownership to your petitioner and the sale to Pilar Martinez.
IV The Court of Appeals erred when it concurred with the respondent judge in granting an
injunction to restrain consummated acts, and in forcing a transfer of possession from Pilar
Martinez to private respondent Fe Uson who has not shown her right thereto.
The present controversy hinges on two questions. First, is private respondent entitled to an injunctive writ?
Second, what is the status quo ante that the said writ seeks to preserve?
The Court's Ruling
The petition is devoid of merit.
First Issue:
Issuance of the Injunctive Writ
3

Petitioners primarily allege that the injunctive writ was wrongfully issued in favor of private respondent, as the
latter had a doubtful, unclear and unadjudicated right for recovery of the property which had been mortgaged,
foreclosed and sold to a third party. We disagree.
An injunctive writ may be issued when the following requisites are established:
1. The invasion of the right is material and substantial;
2. The right of complainant is clear and unmistakable;
3. There is an urgent and permanent necessity for the writ to
prevent serious damage.
11

The foregoing requisites are present in this case. The undisputed owner of the property which was mortgaged
to Petitioner Verzosa was private respondent who, upon learning of the scheduled foreclosure, immediately
filed a Complaint to annul the mortgage, praying that a restraining order be issued to restrain such foreclosure.
Private respondent insisted that she had paid her P25,000 debt, except for the remaining unpaid balance of
P915.75 which she was willing to consign to the court. In other words, she had title to and possession of the
property and she claimed to have paid her obligation, except for the nominal unpaid balance which she was
willing to consign judicially. Hence, she had a clear and unmistakable right to protect her title to and
possession of the mortgaged property by enjoining the foreclosure sale.
Given the above factual allegations, it is clear that private respondent was entitled to the injunctive writ.
Second Issue: Status Quo Ante
The "status quo" is the last actual peaceful uncontested situation which precedes a controversy, and its
preservation is the office of an injunctive writ.
12
Petitioners insist that the status quo refers to the point when
Pilar Martinez was already the owner of the property, having purchased it from Verzosa.
We cannot sustain the petitioners, for Martinez' claim to the property is precisely the bone of contention.
Private respondent, the origin owner of the property, filed a Complaint against WilfredoVerzosa and the
provincial sheriff for the annulment of mortgage and the issuance of an injunctive writ to prevent the
foreclosure of the property and the subsequent transfer of ownership. Although the Complaint was
subsequently amended, the controversy began when the first Complaint was filed.
Nevertheless, Petitioner Verzosa and the sheriff proceeded with the foreclosure before the filing of the
Amended Complaint. Worse, Verzosa sold the property to Martinez one week later. Now, Verzosa and
Martinez claim that the status quo to be preserved refers to the time before the filing of the second Complaint
and after Martinez had acquired the property from Verzosa.
Petitioners contend that the controversy started only when the Amended Complaint was filed, because the
previous Complaints were expunged from the records. Petitioners invokeRuymann v. Director of Lands,
13
in
which the Court ruled that the filing of an amended pleading does not retroact to the date of the filing of the
original. Citing other jurisprudence, such asWaje v. Court of Appeals
14
and Paradise v. Ng,
15
petitioners
contend that the original pleading is deemed abandoned when it is amended.
The cited cases offer scant support to the thesis of petitioners. InRuymann, the Court held that "an amendment
to a complaint which introduces a new or different cause of action, making a new or different demand, is
equivalent to a fresh suit upon a new cause of action, and the statute of limitations continues to run until the
amendment is filed."
16
In the said case, a complaint for injunction was amended to include a larger tract of
land which had not been included in the original suit. The Court held that "the suit will be deemed to have been
commenced upon the date of amendment, in determining whether the defendant had acquired title by adverse
possession to the portion of the tract of land not included in the original complaint (Montgomery v. Shaver, 40
Oregon 244)."
17
It is clear therein that the Complaint was amended to include a new or different cause of
action or demand; hence, it was as if a new complaint was filed.
It follows that when the amended complaint does not introduce new issues, causes of action, or demands, the
suit is deemed to have commenced on the date the original complaint was filed, not on the date of the filing of
the amended complaint. In other words, for demands already included in the original complaint, the suit is
deemed to have commenced upon the filing of such original complaint. In short, for purposes of determining
the commencement of a suit, the original, complaint is deemed abandoned and superseded by the amended
complaint only if the amended complaint introduces a new or different cause of action or demand.
Hence, it has been held that "an amendment which merely supplements and amplifies the facts originally
alleged relates back to the date of the commencement of the action and is not barred by the statute of
limitations, the period of which expires after service of the original complaint but before service of amendment."
18
It is the actual filing in court that controls and not the date of the formal admission of the amended pleading.
19
The Court in Republic v. Marsman
20
elucidated:
4

While in the procedural sense, especially in relation to the possible necessity of and time for the
filing of responsive and other corresponding pleadings, an amended complaint is deemed filed
only as of the date of its admission, . . ., the self-evident proposition [is] that for practical
reasons and to avoid the complications that may arise from undue delays in the admission
thereof, such an amended complaint must be considered as filed, for the purpose of such a
substantive matter as prescription, on the date it is actually filed with the court, regardless of
when it is ultimately formally admitted by the court. After all, the only purpose of requiring leave
of and formal admission by the court of an amended pleading after issues have already been
joined as to the original ones is to prevent the injection of other issues which ought either to be
considered as barred already or made the subject of another proceeding, if they are not anyway
indispensable for the resolution of the original ones and no unnecessary multiplicity of suits
would result; so, when the court ultimately admits the amendment, the legal effect, for
substantive purposes, of such admission retroacts as a rule to the date of its actual filing.
In the instant case, the Amended Complaint did not introduce a new or different cause of action or demand.
The original Complaint was amended only to rectify the lack of verification and thereafter to implead Martinez,
who had purchased the contested property from Verzosa.
In the same vein,Wajeand Paradise do not apply because the Amended Complaints therein alleged new
causes of action.
Similarly unavailing is petitioners' contention that the injunctive writ was applied retroactively and, hence,
violative ofRuymann and other subsequent cases. To repeat,Ruymannwas wrongly applied by petitioners.
There being no new issues introduced in the Amended Complaint herein, the present suit is deemed to have
commenced on the date of the filing of the original Complaint. Hence, the CA was correct in upholding the trial
court that the status quo was the situation of the parties at the time of the filing of the original Complaint.
Finally, petitioners assert that Respondent Court violated the well-entrenched doctrine that consummated acts
can no longer be restrained by injunction. As earlier noted, despite the fact that Pilar Martinez already had title
to and possession of the disputed property, the CA affirmed the order of the trial court enjoining her from
"entering, intruding and making construction and/or performing any act of ownership or possession and any
activity over the
land . . .; " Petitioners cite the following ruling in Reyes v. Harty:
21

It is a universal principle of the law that an injunction will not issue to restrain the performance of
an act already done. It is undisputed proof in this case, presented by the plaintiffs themselves,
that, at the time this [case] was tried, the plaintiffs had been completely dispossessed, the
defendant being in full and complete possession of the lands in question . . . .
Again, the case cited by petitioner is incongruous with the factual milieu of the present controversy. In that
case, the party praying for an injunctive writ had been completely dispossessed of the land in question prior to
the commencement of the action. In the case at bar, private respondent was still the owner and was in
possession of the property at the time the original Complaint was filed. The rule is that a court should not by
means of preliminary injunction transfer the property in litigation from the possession of one party to another
where the legal title is in dispute and the party having possession asserts ownership thereto.
22
When private
respondent filed the original Complaint, she had title to and possession of the property and was asserting
ownership thereto.
Where the acts have been performed prior to the filing of the injunction suit, the general rule is that
consummated acts can no longer be restrained by injunction. However, "where the acts are performed after
the injunction suit is brought, a defendant may not as [a matter] of right proceed to perform the acts sought to
be restrained and then be heard to assert in the suit that the injunction will not lie because he has performed
these acts before final hearing has been had, but after the beginning of the action. A defendant thus acts at his
peril."
23
It has been held that "[t]he general rule of law is that, where a defendant completes, after the
beginning of an action, the act thereby sought to be restrained, and before the issue of any final order or
decree, the court has the power to, and may, compel, by a mandatory injunction, the restoration of the former
condition of things and thereby prevent the giving of an advantage by reason of the wrongful act. And where a
defendant does an act thus sought to be restrained, he proceeds at his peril, and the court in which the action
is pending may compel a restoration of the former status or grant to the plaintiff such relief as may be proper."
24

In this case, an action was brought to enjoin Petitioner Verzosa from proceeding with the mortgage sale, yet he
proceeded to do so while the action was still pending. Such conduct is reprehensible. "If one in the face of a
pending suit for injunction, does the thing sought to be enjoined, he cannot thus outwit equity and the court, but
5

must restore the status quo. . . . Even where an injunction has not been issued, if the suit is one for injunction,
the defendant, if he does the thing sought to be enjoined does so at his peril."
25
Hence, in proceeding with the
mortgage sale and subsequently selling the property to Pilar Martinez, Petitioner Verzosa was acting at his
peril.
Clearly, the Respondent Court did not err in sustaining the Decision of the lower court that the status quo to be
maintained was the situation when title to and possession of the property were still with Private Respondent
Uson. The precise ruling of the appellate court is aptly reproduced hereunder:
When the present Civil Case No. 16590 was commenced on August 12, 1988, the property in
dispute was still covered by Original Certificate of Title No. 12783, in the name of plaintiff Fe
GironUson, and there is no dispute that the possession of the said property was still with the
plaintiff. That is the status quo sought to be maintained in the questioned preliminary injunction.
It is, therefore, incorrect for defendant Wilfredo P. Verzosa to claim that the status quo refers to
Transfer Certificate of Title No. 11107 in the name of Pilar Martinez, which is precisely what is
sought to be annul[l]ed in the present case, and that the possessor of the property is defendant
Pilar Martinez who may possibly have entered into the property while the present case has long
been pending, and by virtue of the purported sale of the same to her by defendant Verzosa,
whose claim of ownership thereof is, in turn, based on the sheriff's sale which is also the very
subject matter of the present case for annulment.
26

WHEREFORE, the petition is DENIED for lack of merit and the assailed Decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.

6

FIRST DIVISION
G.R. No. L-37420 July 31, 1984
MACARIA A. TORRES, petitioner,
vs.
COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, TOMAS NARCISO, AMADO
NARCISO, SALUD NARCISO, DEMETRIA NARCISO and ADELINA NARCISO, respondents.
G.R. No. L-37421 July 31, 1984
MACARIA A. TORRES, petitioner,
vs.
COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, SALUD NARCISO, BALDOMERO
BUENAVENTURA, DEMETRIA NARCISO, LEONARDO QUINTO, ADELINA NARCISO, CESARIO
PUNZALAN, TOMAS NARCISO and AMADO NARCISO, respondents.
Juan R. Liwag for petitioner.
Cesar Nocon for respondents.

MELENCIO-HERRERA, J .:
This Petition for Review on Certiorari, treated as a special civil action. 1 prays that the judgment rendered by
the then Court of Appeals in the consolidated cases, CA-G.R. NO. 34998-R entitled "Macaria A. Torres,
plaintiff-appellee vs. Vicente Santillan, et al., defendants-appellants", and CA-G.R. No. 34999-R entitled
"Vicente Santillan, et al., plaintiffs-appellants vs. Macaria A. Bautista, et al., defendants-appellees and the
Resolution denying the Motion for Reconsideration and Petition for New Trial, be set aside; and that, instead,
The Order of the Court of First Instance of August 7, 1963 be affirmed, or, in the alternative, that the case be
remanded to it for new trial.
Involved in this controversy are the respective claims of petitioner and private respondents over Lot No. 551 of
the Sta. Cruz de Malabon Estate (part of the friar lands) in Tanza, Cavite, with an area of approximately 1,622
square meters. covered by Transfer Certificate of Title No. T-6804 issued in the name of the legal heirs of
Margarita Torres.
The facts of the case cover three generations. The propositus, Margarita Torres, during the Spanish regime,
was married to Claro Santillan. Vicente and Antonina were begotten of this union. Claro died leaving Margarita
a widow. Antonina married and had six children, namely: Alfredo, Salud (married to Baldomero Buenaventura),
Demetria (married to Leonardo Quinto), Adelina (married to CesarioPunzalan), Tomas and Amado all
surnamed Narciso, who, together with Vicente Santillan, are the private respondents. Antonina died before the
institution of the cases while Vicente died on June 4, 1957,
2
during the pendency of the cases in the Trial
Courts, without progeny .
After the death of her husband, Margarita Torres cohabited with Leon ArvisuArbole, without benefit of
marriage. Out of their cohabitation, petitioner Macaria Torres (later married to Francisco Bautista) was born on
June 20, 1898, and baptized on June 26, 1898. In a Certificate of Baptism issued by the Parish Priest of
Tanza, Cavite, Leon ArvisuArbole and Margarita Torres were named as father and mother of petitioner whose
name was listed as MacariaArvisu", (Exhibit "C" Another Baptismal Certificate, however, listed her name as
Macaria Torres, while her father's name was left blank (Exhibit "4"). Subsequently, or on June 7, 1909, Leon
Arbole and Margarita Torres were married (Exhibit "A"). Petitioner lived with and was reared by her parents.
Margarita, the mother, died on December 20, 1931 (Exhibit "D"), while Leon, the father, passed away on
September 14, 1933 (Exhibit " E ").
Lot No. 551, an urban lot with an area of 1,622 sq. ms., more or less, had been leased temporarily by the
Government (Lease No. 17) to Margarita Torres who was the actual occupant of the lot. The date of the lease
cannot be determined with exactitude from the records. On December 13, 1910, the Government, through the
Director of Lands, issued to Margarita Torres, Sale Certificate No. 222 (Exhibit "B") over the said lot at the
price of P428.80, payable in 20 annual installments of P20.00 each. The rental/s previously paid of P17.40 was
credited to the purchase price. Testimonial evidence is to the effect that Leon Arbole paid the installments out
of his earnings as a water tender at the Bureau of Lands, Tanza, Cavite. The last installment, however, was
paid on December 17, 1936, or three (3) years after his death.
On August 25, 1933, twenty (20) days before his death, Leon Arbole sold and transferred in a notarial deed all
his rights and interest to the one-half (1/2) portion of Lot No. 551 in favor of petitioner, for the sum of P300.00.
3

On June 6, 1953, Vicente Santillan executed an Affidavit claiming possession of Lot No. 551 and asking for the
issuance of title in his name, which he filed with the Bureau of Lands. Based thereon, the Bureau of Lands
issued the corresponding patent in the name of the legal heirs of Margarita Torres. Transfer Certificate of Title
7

No. T-6804 was eventually issued by the Register of Deeds of Cavite on November 7, 1957, also in the name
of said heirs.
On June 3, 1954, private respondents filed a complaint against petitioner for Forcible Entry, with the Justice of
the Peace Court of Tanza, Cavite, alleging that petitioner had entered a portion of Lot No. 551 without their
consent, constructed a house. and refused to vacate upon demand. For her part, petitioner claimed that she is
a co-owner of the lot in question, being one of the daughters of Margarita Torres. The ejectment case was
decided against petitioner and the latter appealed to the then Court of First Instance of Cavite, where it was
docketed as Civil Case No. 5547 (Ejectment Case).
On June 8, 1954, petitioner instituted an action for partition of Lot No. 551 before the then Court of First
Instance of Cavite, docketed as Civil Case No. 5505 (Partition Case), alleging that said lot was conjugal
property of the spouses Margarita Torres and Leon Arbole, and that she is their legitimated child. Private
respondents filed an Answer alleging that the lot belonged exclusively to Margarita Torres; that they are her
only heirs, and that the complaint for partition should be dismissed.
The Ejectment Case and the Partition Case were jointly tried and decided on November 20, 1958 with a finding
that Lot No. 551 is the paraphernal property of Margarita Torres and adjudicating to private respondents two-
thirds (2/3) of the property in equal shares, and to petitioner a one-third (1/3) portion.
4
Petitioner moved for
reconsideration, which private respondents opposed. Pending its resolution, the Provincial Capitol of Cavite
was burned, resulting in the complete destruction of the records of the two cases, which, however, were later
partially reconstituted.
On August 7, 1963, the then Court of First Instance of Cavite, Branch 1, issued an Order granting
reconsideration and amending the Decision of November 20, 1958. The positive portion thereof reads as
follows:
Wherefore, judgment is hereby rendered in Civil Case No. .5505:
(1) Declaring Macaria A. Torres as the legitimated child of the spouses Leon Arbole and
Margarita Torres;
(2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership
property of the spouses Leon Arbole and Margarita Torres;
(3) Adjudicating four-sixths (4/6th of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres,
and two-sixths (2/6th) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina,
all surnamed Narciso, legitimate children and heirs of the deceased AntoninaSantillan, since
Vicente Santillan is already dead. The parties may make the partition among themselves by
proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to
the parties, each party should be alloted that portion of the lot where his or her house has been
constructed, as far as this is possible. In case the parties are unable to agree upon the partition,
the Court shall appoint three commissioners to make the partition.
As to Civil Case No. 5547, the same is hereby dismissed.
Without costs in both cases.
5

In concluding that petitioner is a legitimated child, the Trial Court opined:
It is undisputed that when Macaria A. Torres was born on June 20, 1898, her parents, Leon
Arbole and Margarita Torres, had the capacity to marry each other. There was no legal
impediment for them to marry It has also been established that Macaria A. Torres had been
taken care of, brought up and reared by her parents until they died. The certificate of baptism
(Exh. "G") also shows that Macaria Torres was given the family name of Arvisu, which is also
the family name of her father, Leon Arbole, and that her father is Leon Arvisu and her mother is
Margarita Torres. Such being the case, Macaria A. Torres possessed the status of an
acknowledged natural child. And when her parents were married on June 7, 1909, she became
the legitimated daughter of on Arbole and Margarita Torres.
6

Private respondents appealed. On April 2, 1973, the then Court of Appeals
7
rendered the judgment sought to
be set aside herein, the decretal part of which states:
Wherefore, judgment is hereby rendered in Civil Case No. 5505:
(1) Declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and
Margarita Torres;
(2) Declaring that Lot No. 551 of the Sta Cruz de Malabon Estate is a conjugal partnership
property of the spouses Leon Arbole and Margarita Torres; and
(3) Adjudicating one-half (1/2) of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and
the other half (1/2) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, an
8

surnamed Narciso, legitimate children and heirs of AntoninaSantillan, since Vicente Santillan is
already dead. The parties may make the partition among themselves by proper instruments of
conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each
party should be alloted that portion of the lot where his or her house has been constructed, as
far as this is possible. In case the parties are unable to agree upon the partition, the Court shall
appoint three commissioners to make the partition.
As to Civil Case No. 5547, the same is hereby dismissed.
Without costs in both cases.
8

The Appellate Court was of the opinion that:
Macaria A. Torres is not a legitimated daughter of Leon ArvisuArbole and Margarita Torres, the
former not having been legally acknowledged before or after the marriage of her parents. As
correctly pointed out by the appellants in their brief, the fact that she was taken cared of,
brought up and reared by her parents until they died, and that the certificate of baptism (Exhibit
"C") shows that she was given the family name of Arvisu did not bestow upon her the status of
an acknowledged natural child.
Under Article 121 of the old Civil Code, the governing law on the matter, children shall be
considered legitimated by subsequent marriage only when they have been acknowledged by
the parents before or after the celebration thereof, and Article 131 of the same code provides
that the acknowledgement of a natural child must be in the record of birth, in a will or in some
public document. Article 131 then prescribed the form in which the acknowledgment of a natural
child should be made. The certificate of baptism of Macaria A. Torres (Exhibit "C") is not the
record of birth referred to in Article 131. This article of the old Civil Code 'requires that unless
the acknowledgement is made in a will or other public document, it must be made in the record
of birth, or in other words, in the civil register (Samson vs. Corrales Tan, 48 PhiL 406).
9

A Motion for Reconsideration and for New Trial, dated April 16, 1973, was filed by petitioner. In support
thereof, petitioner submitted a typewritten Sworn Statement, dated March 5, 1930, of spouses Leon Arvisu
(Arbole) and Margarita Torres,
10
reading in full as follows:
SWORN STATEMENT
We, Leon Arvisu and Margarita Torres husband and wife respectively, of majority age, and
residents of the Municipality of Tanza, Province of Cavite, P.I., after being duly sworn to
according to law depose and say
That Macaria de Torres is our legitimized daughter she being born out of wedlock on the 26 th
of June 1898 all Tanza, Cavite, but as stated she was legitimized by our subsequent marriage.
That at the time of her birth or conception, we, her parents could have married without
dispensation had we desired.
That as natural child our aforesaid daughter was surnamed de Torres after that of her mother's
at the time she was baptized as per record on file in the Church.
That as a legitimized daughter she should now be surnamed Arvisu after her father's family
name.
Wherefore, it is respectfully requested to anybody concerned that proper remedy be made for
the change of the surname of said Macaria de Torres as desired.
In testimony hereof, we hereunto signed out names at Tanza, Cavite, this 5th day of March
1930.

(Thumbmarked) (Thumbmarked)
LEON ARVISU MARGARITA TORRES
Signed in the prsence of:
(Sgd.) Illegible (Sgd.) Macaria Bautista
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
UNITED STATES OF AMERICA )
PHILIPPINE ISLANDS )
MUNICIPALITY OF TANZA ) ss
PROVINCE OF CAVITE )
Subscribed and sworn to before me this 5th day of March 1930. The affiant Leon Arvisu
exhibited to me no cedula certificate being exempt on account of going over 60 years of age
and Margarita Torres having exhibited no cedula certificate being exempt on account of her sex.
9

Witness my hand and seal of office on the date and place aforesaid.
CONSTANCIO T. VELASCO
Notary Public, Cavite Province
Until Dec. 31, 1930.
Not. Reg. No. 56
P. No. 2
Book No.III Series of 1930.11
The reason given for the non-production of the notarial document during trial was that the same was only found
by petitioner's daughter, Nemensia A. Bautista, among the personal belongings of private respondent, Vicente
Santillan, an adverse party, after his death and who may have attempted to suppress it. Private respondents,
for their part, argued against new trial, and contended that it is not newly discovered evidence which could not
have been produced during the trial by the exercise of due diligence.
The Decision of the Appellate Court was rendered by a Division of three, composed of Justices Jesus Y.
Perez, Jose N. Leuterio and Luis B. Reyes, ponente. When the Motion for Reconsideration and New Trial was
considered, there was disagreement, possibly as to whether or not new trial should be granted in respect of the
sworn statement of March 5, 1930. A Special Division of five was then formed, composed of Justices Antonio
Lucero Magno S. Gatmaitan, Lourdes P. San Diego, Jose N. Leuterio and Luis B. Reyes (Justice Perez having
retired or having disqualified himself). In a minute resolution of August 24, 1973, the Division of five, by a vote
of three or two, denied both reconsideration and new trial.
To warrant review, petitioner, has summarized her submission based on two assignments of error. The first
was expressed as follows:
Although the Court of Appeals is correct in declaring that Macaria A. Torres is not the
legitimated child of the spouses Leon Arbole and Margarita Torres, it has overlooked to include
in its findings of facts the admission made by Vicente Santillan and the heirs of
AntoninaSantillan (herein respondents) that Macaria A. Torres and Vicente Santillan and
AntoninaSantillan are brother and sisters with a common mother Margarita Torres and they are
the legal heirs and nearest of relatives of Margarita Torres, and as a consequence thereof, the
Court of Appeals had drawn an incorrect conclusion in adjudicating the entire share of Margarita
Torres in the conjugal property solely to Vicente Santillan and the heirs of AntoninaSantillan.
(emphasis supplied)
As we understand it, petitioner has conceded, with which we concur, that, without taking account of the sworn
statement of March 5, 1930, she cannot be considered a legitimated child of her parents. Continuous
possession of the status of a natural child, fact of delivery by the mother, etc. will not amount to automatic
recognition, but an action for compulsory recognition is still necessary, which action may be commenced only
during the lifetime of the putative parents, subject to certain exceptions. 12
The admission adverted to appears in paragraph 3 of private respondents' original complaint in the Ejectment
Case reading:
the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and nearest of kins of
Margarita Torres, who died in Tanza, Cavite on December 20, 1931. (Emphasis supplied).
The statement, according to petitioner, is an admission of her legitimation and is controlling in the
determination of her participation in the disputed property.
We are not persuaded. In the Amended Complaint filed by private respondents in the same Ejectment Case,
the underlined portion was deleted so that the statement simply read:
That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who died at Tanza,
Cavite, on December 20, 1931.
In virtue thereof, the Amended Complaint takes the place of the original. The latter is regarded as abandoned
and ceases to perform any further function as a pleading. The original complaint no longer forms part of the
record. 13
If petitioner had desired to utilize the original complaint she should have offered it in evidence. Having been
amended, the original complaint lost its character as a judicial admission, which would have required no proof,
and became merely an extrajudicial admission, the admissibility of which, as evidence, required its formal offer.
Contrary to petitioner's submission, therefore there can be no estoppel by extrajudicial admission made in the
original complaint, for failure to offer it in evidence. 14
It should be noted that in the Partition Case private respondents, in their Answer (parag. 4), denied the
legitimacy of petitioner.
The second error attributed to the Appellate Court has been pleaded as follows:
10

Also, the Court of Appeals has gravely abused its discretion when it denied the petition for new
trial, knowing as it does that the judgment is clearly erroneous in view of the evidence which is
offered and no amount of diligence on the part of the petitioner could it be produced in court at
any time before it was offered as it was found from the personal belongings of Vicente Santillan,
an adverse party, after his death.
It is our considered opinion that new trial was warranted to prevent a possible miscarriage of justice. Assuming
that the genuineness and due execution of the Sworn Statement of March 5, 1930 is established in accordance
with procedural due process, a new trial would resolve such vital considerations as (1) whether or not said
Sworn Statement qualifies as the public document prescribed in Article 131 of the old Civil Code; 15 (2)
whether or not it conforms to an act of acknowledgment by the parents after the celebration of their marriage
as required by Article 121 of the same code; 16 and (3) whether or not petitioner's signature as a witness to
said document was the equivalent of the consent necessary for acknowledgment of an adult person under
Article 133 of that Code. 17 Affirmative answers would confer upon petitioner the status of a legitimated child of
her parents, and would entitle her to enjoy hereditary rights to her mother's estate.
Private respondents stress that since petitioner signed as a witness to the document she should be chargeable
with knowledge of its existence, and, therefore, the Sworn Statement was not newly discovered evidence. In
our view, the document can reasonably qualify as newly discovered evidence, which could not have been
produced during the trial even with the exercise of due diligence; specially if it really had been in the
possession of Vicente Santillan, an adverse party who, it was alleged, suppressed the document.
In the interest of judicial expediency, the new trial can be conducted by respondent Appellate Court, now
empowered to do so under Section 9 of Batas PambansaBlg. 129.
WHEREFORE, this case is hereby remanded to the now Intermediate Appellate Court for new trial, and
depending on its outcome, said Court shall also resolve the respective participation of the parties in the
disputed property, inclusive of the estate of the deceased Vicente Santillan. No costs.
SO ORDERED.
Plana, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.

11

G.R. No. L-11647 January 31, 1958
FLORENTINO NAVARRO and BEATRIZ VINOYA, petitioners,
vs.
HON. ELOY BELLO, Judge of the Court of First Instance of Pangasinan, JUAN CABUANG,
FLORENTINA BAUTISTA, FLORENCIO GALICIA and CONSOLACION BAUTISTA, respondents.
Villanueva, Resultan and Associates for petitioners.
Conrado M. Soriano for respondents.
REYES, J.B.L., J .:
This is a petition for certiorari and mandamus with preliminary injunction seeking the annulment of a decision of
the Court of First Instance of Pangasinan dated July 30, 1956, dismissing the complaint in Civil Case
No.13099, adjudging the respondents-defendants owners of two parcels of landdescribed in the complaint, and
awarding damages to the latter for theunlawful usurpation of the disputed lots by the petitioners.
It appears that petitioners-plaintiffs filed a complaint on September 30, 1954, with the Court of First Instance of
Pangasinan (Civil Case No. 13099) praying for the annulment of transfer certificates of title Nos. 15967 and
15968 and the corresponding deeds of sale executed by respondents Florencio Galicia and Consolacion
Bautista in favor of respondents Juan Cabuang and Florentino Bautista over lots Nos. 20774 and 32540, of the
San Carlos Cadastre, claiming ownership of said parcels of land, and alleging actual possession. Respondents
filed their answer to the amended complaint on November 24, 1954, also claiming ownership over the
questioned lots with a counterclaim for the damages allegedly arising out of the unlawful usurpation of the
possession of the above described parcels of land by the petitioners through force and intimidation.
No answer to the counterclaim having been filed within the time prescribedby the Rules, upon petition of the
respondents, the petitioners (plaintiffs below) were declared in default in an order of the lower court
datedFebruary 2, 1955, and the same order commissioned the deputy clerk of courtto receive the evidence of
the defendants. No notice of this order wasfurnished the petitioners of their counsel. The reception of evidence
wasmade on February 8, 1955, and in accordance with the evidence submitted bythe respondents, the court
rendered decision adjudicating the defendant'scounterclaim for damages, declaring the respondents owners of
the disputed parcels of land, and dismissing the complaint. Copy of the decision wasreceived by the petitioners
on August 7, 1956.
On September 3, 1956, petitioners filed their first motion for reconsideration to set aside the decision and order
of default; it was denied, and notice of such denial received by the petitioners on October 1, 1956. A second
motion for reconsideration filed on October 3, 1956, havingbeen also denied by the lower court, notice of
appeal was filed by petitioners on October 6, 1956, the same day when the notice of denial of the second
motion for reconsideration was received by them, and with the notice of appeal they asked for a fifteen-day
extension within which to file therecord on appeal and appeal bond, which was granted. But upon objection
interposed by the respondents, the court in its order of October 26, 1956, denied the approval of the record on
appeal on the ground that the decision sought to be reviewed has become final and that the plaintiffs having
been declared in default, they have no right to appeal unless and until the order of default is revoked and set
aside.
There was no need for petitioners to answer respondents' counterclaim, considering that plaintiffs, in their
complaint, claimed not only ownership of, but also the right to possess, the parcels in question, alleging that
sometime in May, 1954, defendants through force and intimidation, wrestedpossession thereof from their
tenants, and that it was upon a writ of possession issued by the Court of First Instance of Pangasinan that they
were placed back in possession by the provincial sheriff. These averments weredenied by defendants in their
answer, wherein they asserted ownership in themselves and illegal deprivation of their possession by plaintiffs,
and as counterclaim, prayed for damages allegedly suffered because of plaintiffs'alleged usurpation of the
premises.
It thus appears that the issues of the counterclaim are the very issues raised in the complaint and in the
answer, and said counterclaim is based on the very defenses pleaded in the answer. To answer such
counterclaim wouldrequire plaintiffs to replead the same facts already alleged in their complaint.
But in any event, whether or not plaintiffs have answered defendants' counterclaim, they have the right to
prove the averments of their complaint, including their claim that it was by court order that they secured
possessionof the parcels in question from defendants. And if plaintiffs are able to prove such allegations, then
the court must dismiss defendants' counterclaim for damages, since the illegal usurpation of defendants'
possessionallegedly committed by plaintiffs, which is the basis of the counterclaim,would not have been
proved. In short, the issues of the counterclaim partakesof the nature of a special defense which, even if not
specifically challengedby plaintiffs in a reply, is deemed controverted (Rule 11, sec. 1, Rules ofCourt; Rosario
12

vs. J. Martinez, 92 Phil., 1064; Luna vs. Apacible, 79 Phil.,8). There was, therefore, no occasion for plaintiffs'
default on defendants'couterclaim, and the order of the court below declaring them in default, aswell as the
judgment by default, is improper and void.
It is plain from the records that the complaint and the aswer have not as yetbeen set for trial in the court below.
Only after the issues of the complaint and aswer are tried, and the parties heard, may the court resolve the
defendants' counterclaim for damages. If the court finds for plaintiffs,defendants' defenses, and counterclaim,
must necessarily fail. On the otherhand, if the court finds for the defendants, then plaintiff's complaint must be
dismissed, defendants would be declared owners of the lands inquestion, and they would be awarded
damages under their counterclaim. Butuntil and unless the whole case is heard on the merits, the court a quo
can not decide on defendants' counterclaim, without depriving plaintiffs theirday in court.
Even if plaintiffs had really defaulted on the counterclaim, still the courtwas bound to limit its decision to the
specific reliefs ask for. Sec. 9, Rule 35, of the Rules of Court provides:
A judgment entered by default shall not exceed the amoutn or be differentin kind from that prayed for in
the demand for judgment . . .
Since the counterclaim was set to recover damages caused by the petitionersalleged entering the land in
question through force and intimidation, thecourt could, at most, award the damages sought; hence, in
adjudging also thedefendants, Juan Cabuang and Florentina Bautista, to be the owners of thetwo parcels of
land described in the complaint, when what was tried was thecounterclaim, the court below exceeded its
jurisdiction (See Lim Tocovs.Fo Fay, 80 Phil., 166).
Since the ownership of the disputed land was put in issued by the allegations of the complaint and the special
defenses in the answer, the correct procedure, assuming that the declaration of default was properlyentered,
should have been for the trial court to set the complaint andanswer for the hearing. The lower court, even in
the case of a true defaulton the couterclaim, could not deny the petitioners-palintiffs the right tobe heard and
produce evidence in support of their complaint, as that pleadingwas valid and had not been stricken from the
records. Their having defaultedon the counterclaim, if they did so at all, did not operate to deprive theplaintiffs
from any standing or remedy in court in connection with theircomplaint.
Petitioner's timely motions for reconsideration and new trial were denied bythe lower court, first, because it
said the petitioners had lost their standing in court in view of the order of default, and second because such
motions were not accompanied by affidavits of merits. The first argument is, in view of what we have already
stated, invalid and untenable. As for the second, we have already ruled that affidavits of merits are not
necessarywhen the granting of the motion is not discretionary with the court but is demandable as of right, as
where the movant has been deprived of his day in court, through no fault or negligence of his own (Valerio vs.
Tan, et al., 97 Phil. 558). This rule applies in the instant case, since petitioners have been deprived of their day
in court through an illegal order of default.
Wherefore, the writ of certiorari is granted, and the decision of July 30, 1956 of the Court of First Instance of
Pangasinan in its case No. 13099 is hereby set aside, and said court is directed to proceed with the trial ofthe
entire case on the merits. Costs against respondents CabuangandBautista.So ordered.
Bengzon, Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia, and
Felix JJ., concur.

13

G.R. No. L-56605 January 28, 1983
ANDRES C. SARMIENTO, petitioner,
vs.
THE HON. CELESTINO C. JUAN, PRESIDING JUDGE, BRANCH X, COURT OF FIRST INSTANCE OF
MANILA and BELFAST SURETY & INSURANCE CO., INC., respondents.
Andres C. Sarmiento in his own behalf.
Federico T. Castillo, Jr., for respondents.

VASQUEZ, J .:
In this petition for review on certiorari, petitioner Andres C. Sarmiento seeks to set aside a decision rendered
by the respondent Court of Appeals in CA G.R. No. SP-10649 which denied due course to a petition for
certiorari filed therein by the herein petitioner to annul two orders issued by the Court of First Instance of
Manila in Civil Case No. 126113. The instant petition was given due course in the Resolution of September 14,
1981 and the parties ordered to submit their respective memoranda. The petitioner flied a memorandum in his
behalf but the private respondent merely adopted its comment on the petition as its memorandum.
Civil Case No. 126113 was an action filed by private respondent Belfast Surety & Insurance Co., Inc. against
herein petitioner and his father Benjamin R. Sarmiento, Sr. for indemnification under an Indemnity Agreement
executed by them in connection with a bail bond. The case was assigned to Branch X of the Court of First
Instance of Manila presided over by respondent Judge Celestino C. Juan who had since retired.
After the petitioner filed an answer with compulsory counterclaim, private respondent filed a motion to dismiss
the case against defendant Benjamin R. Sarmiento, Sr., and to schedule the case for pre-trial. This motion was
granted by Judge Juan and the pre-trial was set on February 5, 1980, at 8:30 a.m.
At the said pre-trial, nobody appeared except Atty. Federico T. Castillo, Jr., counsel for the private respondent.
However, the petitioner sent to the Court on the same date an urgent motion for postponement stating therein
that when he was preparing to go to the Court, he felt severe stomach pain followed by loose bowel
movements, and he accordingly prayed that the pre-trial be postponed to another date.
The urgent motion for postponement filed by the petitioner was denied in the order of Judge Juan dated
February 5, 1980. On motion of Atty. Castillo, the petitioner was "declared non-suited" (should have been "as
in default") and the private respondent allowed to present its evidence ex-parte on February 26, 1980, at 8:30
a.m.
On February 25, 1980, the petitioner filed a motion for reconsideration of the order of February 5, 1980. In his
order of February 26, 1980, Judge Juan denied the said motion for reconsideration "for lack of merit," and
reiterated the permission for the private respondent to present its evidence ex-parte.
It does not appear whether the ex-parte presentation of evidence by the private respondent had already been
accomplished, nor that a derision thereon had been rendered. That such proceedings had not taken place
could, however, be gathered from the fact that on March 19, 1980, the petitioner filed a petition for certiorari
with the Supreme Court docketed as G.R. No. 53399 to annul the aforementioned orders of Judge Juan dated
February 5, 1980 and February 26, 1980. The said petition was remanded to the Court of Appeals pursuant to
the Resolution of the First Division of this Court dated March 28, 1980. It was docketed in the Court of Appeals
as CA-G.R. No. SP-14649. In a decision promulgated on August 29, 1980 by the Special First Division of the
Court of Appeals, the petition was denied due course and ordered dismissed for lack of meet. Said decision is
the subject of the present appeal by certiorari.
The petitioner assails the refusal of the respondent Court of Appeals to disturb the questioned orders of Judge
Juan which petitioner claims to have been issued in excess of jurisdiction and with grave abuse of discretion.
He contends that (a) the pre-trial was premature inasmuch as, there having been no answer filed by the private
respondent to the petitioner's counterclaim alleged in his answer, the "last pleading" has not yet been filed so
as to authorize a pre-trial to be conducted in accordance with Section 1, Rule 20, of the Rules of Court; (b)
there being no valid pre-trial, the trial court had no authority to declare him as "non-suited", or more correctly,
as in default, for his failure to appear at the said pre-trial; (b) assuming that there was a valid pre-trial, the trial
court could not legally declare the petitioner as in default due to his failure to be present threat inasmuch as the
private respondent itself made no valid appearance at said pre-trial because only its counsel appeared without
any special authority to represent his client at the said pre-trial; and (c) it was a grave abuse of discretion on
the part of the trial court to deny the petitioner's urgent motion for postponement despite the merit of the
ground alleged therein, and the same thing is true with the denial of his motion to set aside or lift the order
declaring him in default.
14

We see no merit in the petitioner's contention that the pre-trial was prematurely scheduled on the supposed
ground that the last pleading had not been filed. In the petition for certiorari docketed as G.R. No. 53399, the
petitioner has alleged that he filed his answer to the complaint containing a compulsory counterclaim on
December 21, 1979 which was served on the counsel for the private respondent on the same date. (Rollo, p.
19.) The pre-trial was scheduled to be held on February 5, 1980 or a month and a half after the petitioner had
flied his answer to the complaint in Civil Case No. 126113 and private respondent served with a copy of the
same. While it may be true that the private respondent had not filed any answer to the counterclaim contained
in the petitioner's answer, such circumstance does not prevent the trial court from conducting the pre-trial. As
was observed by the respondent Court of Appeals in its questioned decision: "If no answer (to the
counterclaim) is timely filed the pre-trial order may issue. Otherwise, an unscrupulous party litigant can hold
court processes by the simple expedient of failing to answer."
The requirement that the pre-trial shall be scheduled "after the last pleading has been filed" ( Section 1, Rule
20, Rules of Court) is intended to fully apprise the court and the parties of all the issues in the case before the
pre-trial is conducted. It must be remembered that the issues may only be ascertained from the allegations
contained in the pleadings filed by the parties. The last permissible pleading that a party may file would be the
reply to the answer to the last pleading of claim that had been filed in the case, which may either be the
complaint, a cross-claim, a counterclaim or a third party complaint, etc. (Secs. 2 and 11, Rule 6, Rules of
Court.) Any pleading asserting a claim must be answered, and the failure to do so by the party against whom
the claim is asserted renders him liable to be declared in default in respect of such claim. (See. 10, Ibid) There
are, however, recognized exceptions to the rule, making the failure to answer a pleading of claim as a ground
for a default declaration, such as the failure to answer a complaint in intervention (Sec. 2(c) Rule 12, Rules of
Court), or a compulsory counterclaim so intimately related to the complaint such that to answer to same would
merely require a repetition of the allegations contained in the complaint (Zamboanga Colleges, Inc. vs. Court of
Appeals, 1 SCRA 870; Ballecer vs. Bernardo, 18 SCRA 291; Agaton vs. Perez, 18 SCRA 1165.)
In the case presently considered, the nature of the counterclaim in the petitioner's answer has not been made
clear, except to categorize it as a compulsory counterclaim. Such being the case, it is likely to be one where
the answering thereof is not necessary, and the failure to do so would not be a ground to be declared in
default. In any event, the private respondent's failure to answer the petitioner's counterclaim after the period to
file the answer had lapsed is no obstacle to holding a pre-trial.1wph1.t The requirement that the last
pleading must have been filed before a pre-trial may be scheduled should more appropriately be construed to
mean not only if the last pleading had been actually filed, but also if the period for filing the same had expired.
We, however, find merit in the petitioner's two other contentions. The denial by Judge Juan of the petitioner's
motion to postpone the pre-trial scheduled on February 5, 1980 may have appeared valid at the outset,
considering that it was filed at the last minute and was not accompanied by a medical certificate although the
ground alleged was illness on the part of the petitioner. Nonetheless, a different appraisal of the petitioner's
plea should have been made after the petitioner filed a motion for reconsideration which was made under oath.
Due regard should have been given to the repeated pronouncements by this Court against default judgments
and proceedings that lay more emphasis on procedural niceties to the sacrifice of substantial justice. After all,
the ex-parte presentation of evidence had not yet been conducted nor had a decision been rendered in the
case. It appeared to be a simple matter of giving the petitioner a chance to have his day in court in order to
defend himself against the claim filed by the private respondent. As it turned out, the procedure adopted by the
trial court proved unprofitable and disadvantageous to all parties concerned, including the courts. The case
would have been disposed of in a much easier and more expeditious manner if the trial court had heeded the
petitioner's simple plea for a chance to be heard. Thereby, all the proceedings taken subsequent to the
disputed orders of the trial court could have been avoided, and the Court of Appeals and the Supreme Court
spared from the trouble of resolving the petitions filed before them.
The petitioner also has valid reason to complain about the apparent overanxiousness of the trial court to finish
the case in summary fashion. The petitioner had manifested to the Court that his inability to appear before the
pre-trial was due to a sudden ailment that befell him while he was preparing to go to Court. While it is true that
the motion for postponement was not accompanied by a medical certificate, it must be considered that not
every ailment is attended to by a physician, or if so, a medical certificate under oath as required by the Rules
could be secured within the limited time available. There has been no refutation of the cause of the non-
appearance of the petitioner as claimed by the latter. Said cause had been reiterated under oath in the
petitioner's motion for reconsideration to which the trial court turned a deaf ear. Any suspicion that the
petitioner was merely suing for delay is readily dispelled by the fact that the pre-trial was being set for the first
15

time, and that the petitioner took immediate steps against the refusal of the trial court to set aside the default
declaration and to pursue remedies steadfastly against the same in the higher tribunals.
The declaration default on the part of the petitioner may not be considered as entirely proper under the
circumstances surrounding the same. It is undenied that nobody appeared at the pre-trial except the counsel
for the private respondent. Under settled doctrines, not even the private respondent may be considered as
having appeared at the said pre-trial, it not having made appearance thereat through a duly authorized
representative. In such a situation, the trial court would have acted more properly if it dismissed the case, or
declared the private respondent as plaintiff therein as non-suited instead of declaring the petitioner as in
default (erroneously stated by it as "non-suited.") This is because while the court may declare the plaintiff non-
suited for non-appearance at the pre-trial or dismiss the case for his non- appearance at the trial without
motion on the part of the defendant (Sec. 3, Rule 17), the latter may not be declared in default without such
motion on the part of the plaintiff. (Sec. 1.Rule 18; Trajano vs. Cruz, 80 SCRA 712.) A plaintiff who makes no
valid appearance at pre-trial may not ask that the defendant be punished for the same shortcoming it was
equally guilty of.
WHEREFORE, the judgment of the Court of Appeals rendered in CA-G.R. No. 10649 promulgated on August
29, 1980, and the Resolution issued in said case dated March 29, 1981 which denied a motion for the
reconsideration of the said judgment are hereby REVERSED and SET ASIDE. The orders of the Court of First
Instance of Manila in Civil Case No. 126113 dated February 5, 1980 and February 26, 1980 are ordered
ANNULLED and SET ASIDE. Let the said case be rescheduled for pre-trial and for subsequent proceedings
thereafter. Costs against the private respondent.
SO ORDERED.

16

G.R. No. L-26768 October 30, 1970
FAUSTINO GOJO, petitioner-appellant,
vs.
SEGUNDO GOYALA and ANTONINA ALMOGUERA, respondents-appellees.
Fernando P. Gerona, Sr. for petitioner-appellant.
Agustin Frivaldo for respondents-appellees.

BARREDO, J .:.
Appeal from the favorable decision of the Court of First Instance of Sorsogon on the counterclaim of
respondents (herein appellees) in its Civil Case No. 1657-84 the complaint (petition) of therein petitioner
(herein appellant) having beet previously dismissed, without prejudice, for his failure to submit an amended
complaint as required of him in the court a quo's earlier order.
The record shows that on 26 May 1951, appellee Segundo, Goyala together with his now deceased wife
AntoninaAlmoguera, who was also named respondent or defendant in the complaint or petition in the court
below, sold to appellant by a "Deed of Pacto de Retro Sale" a certain parcel of agricultural land having an area
of approximately two and one-half hectares for P750.00, the repurchase to be made, according to the deed,
within one year. It also appears from said deed that on July 4, 1951, the vendee paid another P100.00 as
addition to the purchase price. About ten (10) years after the execution of the said document, or on April 12,
1961, to be precise, the vendee filed with the Court of First Instance of Sorsogon the present case against the
vendors by way of a petition for consolidation of ownership of the land described and involved in the "Deed of
Pacto de Retro Sale." In his petition, the vendee, herein appellant, alleged, inter alia, that the date for
repurchase, May 26, 1952, having expired and the vendors not having been able to repurchase the same
under the terms and conditions of the agreement, the ownership over the land involved had become
consolidated in him; and that for the purpose of recording in the Registry of Property the said consolidation of
ownership, it was necessary that a judicial order be issued to that effect and accordingly prayed for such an
order.
On May 26, 1961, appellee Segundo Goyala filed an opposition or answer to the petition. He therein alleged
that his wife AntoninaAlmoguera had died in the year 1959 and denied the allegation in the petition regarding
thepacto de retro sale, "the fact of the matter being," according to him, "that on May 26, 1951, the respondents
obtained a cash load of P750.00 from the petitioner payable in one year without interest; that only on July 26,
1951, Dolores Goyala, daughter of the respondents, obtained from the petitioner the sum of P50.00 to be
added and credited to the account of the respondents; and then on August 25, 1951, the said Dolores Goyala
received from the petitioner another amount of P10.00 to be added to and credited to the account of the
respondents, (so that) the total loan of the respondents from the petitioner aggregates P810.00 Philippine
Currency" and that to guarantee the payment of the said loan, the respondents executed a mortgage in favor
of the petitioner on a parcel of coconut land described in Annex A of the petition, hence, altho the deed was
executed or drawn in the form of a pacto de retro sale, the true and real intention of the parties thereto was that
the same was a mere mortgage to secure the payment of the original loan of P750.00 together with the
additional amount received thereafter, making a total loan of P810.00, payable within, one year without
interest. He further alleged that in the evening of May 26, 1952, he and his wife went to the house of the
petitioner and tendered to him the sum of P810.00 to pay the debt, but said petitioner refused to receive the
same and to cancel the document of mortgage, Annex A. The said appellee also reiterated by way of
counterclaim the foregoing allegations of his answer and prayed thus:.
WHEREFORE, the respondent Segundo Goyala respectfully prays this Honorable Court to
dismiss the petition and render judgment in favor of the respondents as follows:.
(a) Ordering the petitioner to receive the sum of P810.00 tendered or deposited
by the respondents in full settlement of their debts to him;
(b) Declaring the document marked Annex A of the petition to be mortgage and
not a pacto de retro sale, and ordering the same cancelled and with no more
force and effect;
(c) Ordering the petitioner to pay the respondents the sum of P1,800.00 per
annum beginning May 26, 1951 until the final termination of this case as the
reasonable monetary value of the products for the said property, and from this
amount, there should be deducted however, the corresponding legal interest
annually on said loans; and
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(d) In case, however, of the remote possibility that this Court should find the said
instrument (Annex A) to be a true pacto de retro sale, and not a mere mortgage,
it is hereby prayed that the petitioner be ordered to execute a deed of resale or
repurchase of said property in favor of the respondents in accordance with Art.
1606 third paragraph of the Civil Code."
On December 1, 1962, counsel for respondent Goyala filed a manifestation informing the trial court that the
named defendant (respondent) AntoninaAlmoguera was already dead, she having died at Labo, Camarines
Norte on March 27, 1959, and that her surviving nearest kin are her children, namely: Leonor, Pedro, Juliana,
Dolores, Valentina, Soledad, Penya, Mamerta, Salvador, Genesa, Felipe, Elegio all surnamed Goyala
with residences at Bulan, Sorsogon. Hearing was had on that manifestation, after which the trial court, under
date of December 4, 1962, issued the following order:.
As prayed for in the manifestation of Atty. Agustin Frivaldo counsel for the defendant, dated
December 1, 1962, on the ground stated therein, the counsel for the plaintiff is hereby required
to submit an amended Complaint substituting therein for one of the defendants,
AntoninaAlmoguera, now deceased her successors in interest as party defendants, within the
reglementary period.
Subsequently, on January 26, 1963, appellee Goyala filed a motion to dismiss the complaint or petition on the
ground that notwithstanding the lapse of 43 days after appellant's receipt of a copy of the above-quoted order
of the trial court, said appellant had failed and neglected to submit the amended complaint required of him. The
motion was opposed by appellant; and the trial court, resolving the incident, issued the following order on
February 15, 1963:.
The matter under consideration is the motion to dismiss filed by the defendants on the ground
that the plaintiff has failed and neglected to submit the amended complaint as required in the
order of this Court dated December 4, 1962, which the plaintiff has received on December 18,
1962. From December 13, 1962 when the motion to dismiss was filed, 43 days have elapsed.
On February 6, 1963 when the plaintiff has again failed to file together with said opposition the
required amended complaint, and although plaintiff has requested for a reasonable extension of
time within which to file the said pleading, it is regretable to state that up to the present has
neglected to do so.
WHEREFORE, the complaint is hereby dismissed without prejudice.
Thereafter, on July 10, 1963, appellee filed a motion to declare appellant in default in respect of said appellee's
counterclaim, contained in his answer (opposition) to the dismissed complaint petition) of appellant. This
motion was granted by the trial court in its order of July 11, 1963, to wit:.
Upon petition of the counsel for the defendant Segundo Goyala to declare the plaintiff in default
on the ground of failure on the part of the plaintiff to answer the counterclaim filed by said
defendant Segundo Goyala within the reglementary period, despite the fact that the plaintiff's
counsel was duly served with a copy thereof, and the plaintiff's complaint was already dismissed
by this Court in its order of February 15, 1963 on the ground of neglect to submit the amended
complaint as required in the Court order of December 4, 1962, the plaintiff is hereby declared in
default on the counterclaim filed by said defendant Segundo Goyala.
Let the defendant Segundo Goyala submit his evidence before the Clerk of Court, who is hereby
commissioned to receive the same.
As directed in the order above-quoted, the Clerk of Court received the evidence of appellee in respect of his
counterclaim and, thereafter, on November 15, 1963 the trial court rendered favorable judgment on appellee's
counterclaim. The pertinent portions of the decision referred to read thus:.
It appears that on May 26, 1951, respondents obtained a loan of P750.00 from the petitioner. To
secure the loan, respondents executed a document, which was made a Deed of Pacto de Retro
Sale (Exh. "A"), on suggestion of petitioner to exempt himself from liabilities under the Usury
Law. Dolores Goyala, one of the daughters of respondents, obtained an additional loan of
P50.00 on July 26, 1951, (Exh. "A-1") and another P10.00 on August 19, 1951, (Exh. "A-3")
from the petitioner which amounts were duly authorized and acknowledged by respondent
Segundo Goyala. In the late afternoon of May 26, 1952, the last day to redeem the property,
Segundo Goyala, tendered the amount of P810.00 to herein petitioner in complete payment of
the loan and to release the property securing the said loan, but was refused because it was
already night time, and was advised instead to return the following day. When Segundo Goyala
returned the following day to redeem the property he was told by petitioner that the period to
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redeem has already expired. Segundo Goyala testified further that he tried no less than three
times to redeem the property but each time petitioner refused the redemption money.
It appears further that the petitioner is in possession of the land since May 26, 1951, after the
execution of Exhibit "A" up to the present time and had appropriated to himself the products
during the period. It is shown further that the land is a productive coconut land and has a fair
market value of P5,000.00 with an annual yield of P1,800.00.
The respondents are not however entitled to be reimbursed of the value of the products
obtained by the petitioner who acted in the belief that the agreement was a Pacto de Retro Sale
which turned out to be otherwise as the Court now so declares.
WHEREFORE, in view of the foregoing the Court hereby declares the Deed of Pacto de Retro
Sale (Exh. "A") an equitable mortgage and respondents Segundo Goyala and the heirs of
AntoninaAlmoguera are allowed to redeem the property; orders Faustino Gojo to withdraw the
amount of P810.00 deposited with the Clerk of Court in full settlement of the loan, and hereby
cancels and declares without force and effect the aforementioned Deed of Pacto de Retro Sale
executed by the spouses Segundo Goyala and AntoninaAlmoguera in favor of Faustino Gojo.
Without costs.
The above-quoted decision was subsequently amended in an order of December 19, 1963, as follows:.
It appearing that in the dispositive part of the decision there was no directive to restore the
possession to the defendants upon execution, the dispositive portion of the said decision is
hereby amended to include therein an additional directive ordering the plaintiff to deliver and
restore the possession of the land in question to the defendants.
Dissatisfied with the decision referred to, appellant appealed to the Court of Appeals which upon its finding that
the said appeal involves purely questions of law, certified the same to this Court for resolution.
In his brief, appellant assigns the following errors allegedly committed by the trial court:.
1. THE LOWER COURT ERRED IN DECLARING PLAINTIFF IN DEFAULT WITH RESPECT
TO DEFENDANT'S COUNTERCLAIM;
2. THE LOWER COURT ERRED IN DEPUTIZING OR COMMISSIONING THE CLERK OF
COURT TO RECEIVE THE EVIDENCE OF THE DEFENDANT SEGUNDO GOYALA;
3. THE LOWER COURT ERRED IN RENDERING JUDGMENT IN FAVOR OF THE
RESPONDENT SEGUNDO GOYALA AND THE HEIRS OF ANTONINA ALMOGUERA
ALLOWING THEM TO REDEEM THE LAND IN QUESTION FROM THE PETITIONER
FAUSTINO GOJO FOR THE SUM OF P810.00.
The thrust of appellant's argument in respect of the first assignment of error is to the effect that there is no
occasion for the trial court to declare him in default in respect of appellee's counterclaim in this case, for the
reasons that: (a) the said counterclaim "falls within the category of compulsory counterclaim" which does not
call for an independent answer as the complaint already denies its material allegations; and (b) the dismissal of
the complaint in this case without prejudice carried with it the dismissal of the said counterclaim.
The first assignment of error of appellant is well taken. It is now settled that a plaintiff who fails or chooses not
to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in
the counterclaim are deemed automatically joined by the allegations of the complaint.
1
In the instant case,
there can be no doubt that appellant's counterclaim was a compulsory one in as much as it arises out of or is
necessarily connected with transaction or occurrence that is the subject matter of the complaint; the complaint
alleged that the right of appellee to repurchase the property in question had already expired and asked for an
order of consolidation; on the other hand, appellant's counterclaim was for reformation of the deed claiming
that it was only a mortgage. Thus the counterclaim was clearly inconsistent with and directly controverted; the
whole theory and basic allegations of the complaint. In consequence, appellant's complaint stood as the
answer to appellee's counterclaim; hence, the incorrectness of the trial court's order declaring the appellant in
default in regard to said counterclaim is evident.
Regarding the dismissal of petitioner's complaint, We hold also, that the trial court committed reversible error in
ordering the same. It is true that under Section 3 of Rule 17, a complaint may be dismissed for failure to
prosecute if the plaintiff fails to comply with an order of the court, but it is obvious that the said provision cannot
apply when the order supposedly ignored is a void one, as in this case. Here, the trial court ordered petitioner
to amend the complaint only because it was informed that one of the defendants had died, the court directing
that the plaintiff should name the heirs of the deceased as defendants in lieu of said deceased. Such an order
runs counter to the ruling of this Court in Caseas vs. Resales, et al. 2 which is squarely applicable to the
Situation herein obtaining. In that case, We held:.
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When certain of the parties to Civil Case No. 261 died and due notice thereof was given to the
trial court, it devolved on the said court to order, not the amendment of the complaint, but the
appearance of the legal representatives of the deceased in accordance with the procedure and
manner outlined in Rule 3, Section 17 of the Rules of Court, which provide:.
"SECTION 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. If the legal representative
fails to appear within said time, the court may order the opposing party to procure
the appointment of a legal representative of the deceased within a time to be
specified by the court, and the representative shall immediately appear for and
on behalf of the interest of the deceased. The court charges involved in procuring
such appointment, if defrayed by the opposing party, may be recovered as costs.
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 guardian ad litem for the minor heirs."
In the case of Barrameda vs. Barbara, 90 Phil. 718, this Court held that an order to amend the
complaint, before the proper substitution of parties as directed by the aforequoted rule has been
effected, is void and imposes upon the plaintiff no duty to comply therewith to the end that an
order dismissing the said complaint, for such non-compliance, would similarly be void. In a
subsequent case, Ferriera, et al. vs. Gonzales, et al., G.R. No. L-11567, July 17, 1958, this
Court affirmed a similar conclusion on the determination that the continuance of a proceedings
during the pendency of which a party thereto dies, without such party having been validly
substituted in accordance with the rules, amounts to a "lack of jurisdiction".
The facts of this case fit four square into the Barrameda case above-cited, save for the minor
variance that in the former two of the litigants died while only one predeceased the case in
Barrameda. Here, as in Barrameda, during the pendency of (the) civil case, notice was given to
the trial court of the deaths of one of the plaintiffs and one of the defendants in it. Instead of
ordering the substitution of the deceased's legal representatives in accordance with Rule 3,
Sec. 17 of the Rules of Court, the trial court directed the surviving plaintiff to amend the
complaint and when the latter failed to comply therewith, the said court dismissed the complaint
for such non-compliance. We must hold, therefore, as We did in Barrameda that inasmuch as
there was no obligation on the part of the plaintiff-appellant herein to amend his complaint in
Civil Case No. 261, any such imposition being void, 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." (To the same effect, see World Wide Insurance & Surety Co. v. Jose, etc., et
al., 96 Phil. 45, 50).
Besides, in line with the principle underlying Sec. 2 of Rule 17, it is not proper to dismiss a complaint when a
compulsory counterclaim has been pleaded by defendant. The reason is obvious. Under the cited provision,
the right of the plaintiff to move for the dismissal of an action after the defendant has filed his answer is
qualified by the clause providing that: "If a counterclaim has been pleaded by a defendant prior to the service
upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection
unless the counterclaim can remain pending for independent adjudication by the court." With this limitation, the
power of the court to dismiss the complaint upon motion of plaintiff, which is usually without prejudice, is not
purely discretionary.
3
The purpose is to avoid multiplicity of suits over the same matter which would necessarily
entail unnecessary expense and, what is worse, possibility of conflict and inconsistency in the resolution of the
same questions. The same considerations would obtain, if the defendant were the one to ask for dismissal.
The best interests of justice require that conflicting claims regarding the same matter should be decided in one
single proceeding. Dismissing the complaint without prejudice, as the trial court has done in this case, albeit
upon motion of the defendant, will not prevent the undesirable multiplication of suits and reventilation of the
same issues in the subsequent action that may be filed by virtue of the reservation made in the disputed order
of dismissal.
Having arrived at the foregoing conclusions, it becomes unnecessary to discuss the other two assigned errors.
WHEREFORE, the decision appealed from is set aside and this case is remanded to the court below for further
proceedings in consonance with the above opinion, with costs against appellee.